June 29, 2009
— Gabriel Malor Justice Ginsburg chose to read her dissent aloud this morning, something she does in cases she particularly feels have been wrongly decided.
There is still quite a gap between Right and Left when it comes to race issues. One side has firmly grasped the concept that discrimination on the basis of race is a bad thing in all circumstances. The other believes that discrimination is regrettable but necessary. The problem with this second view--the Left's view--is that the "necessary" justification never ends.
Says the Left: we must discriminate in favor of some groups because they were discriminated against in the past. Well, okay, but how long is the Left gonna ride that horse? Justice O'Connor, writing in a law school admissions race discrimination case six years ago, thought that the use of racial preferences wouldn't be necessary in twenty-five years. Twenty-five years! How did she pick twenty-five years? We will never know. It was, however, a safe bet that she would be long off the scene by then and so not resposible if the anticipated Day When Discrimination is Not Necessary never appears.
That was Justice O'Connor. Justice Ginsburg, even further to the Left on race issues, was not willing to even to go that far. Today it shows again, as she casually discards an objective test for promotion in favor of subjective measures of "command presence" which can result in more defensible decisions based on race. The objective test stands in the way of her preferred result, so it has to go. It is a "flawed test", not because of any proven deficiency in the exam, but because it fails to provide the necessary result.
Wise Latina Overruled 9-0? [ace]: Ed Whelan at Bench Memos argues the decision is actually 9-zip against Sotomayor -- because even Justice Ginsburg says (though only in a footnote) that the appellate court should have remanded the case back to the district court, not summarily affirmed the lower decision.
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— Gabriel Malor The Court holds 5-4 that New Haven's decision to discard the test results because too few non-Hispanic minorities passed violated the Civil Rights Act.
Opinion is here (PDF). Kennedy wrote the majority opinion, joined by the Chief Justice and Justices Scalia, Thomas, and Alito. The liberal four dissented in an opinion drafted by Justice Ginsburg.
Reading it now; updates to come.
More: Alright. As with the Section 5 Voting Rights Act case last week, the Court avoids the constitutional issues and attempts to resolve the dispute according to the existing statutory scheme. In this case that means resolving the conflict between two sections of Title VII of the Civil Rights Act.
Under Title VII, New Haven was prohibited from intentional acts of employment discrimination based on race. This is called disparate treatment. Title VII also prohibits policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities. This is called disparate impact. Disparate impact is often demonstrated with statistical analyses.
The facts of this case set the two types of prohibited conduct against each other. New Haven could either intentionally discriminate against the successful white and Hispanic candidates or its firefighter promotion policy (based on the test results) would have a disproportinately adverse impact on black candidates.
And more: Prior to this decision some lower courts--including the district court in his case--believed that actions taken to avoid disparate impact simply cannot be considered disparate treatment. But now the Court says:
All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of anindividual’s race.Whatever the City’s ultimate aim—however well intentioned or benevolent it mighthave seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.
Ultimately, the Court holds (borrowing from equal protection cases) that before an employer can engage in intentional discrimination to avoid disparate impact, the employer must have a "strong basis in evidence" to believe it will be subject to disparate impact liability if it fails to take the race-conscious, discriminatory action. That determination rests on the facts of the particular case.
In this case, the majority determined that New Haven had no strong basis in evidence to believe it would be subject to liability (not just litigation, but actual liability) had it certified the firefighter exam results. The test was objective, and taken for a job-related purpose (obviously). Fear of litigation does not justify disparate treatment. more...
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— Gabriel Malor For comments on the items in the Top Headlines sidebar. A link to these comments is stickied at the top of the Top Headline column.
Also: The Supreme Court will be issuing its decision in the white firefighters' case, Ricci v. DeStefano in about an hour. Until then, check out Paul from PowerLineBlog wondering whether the Court will have the guts to pull the trigger this time.
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June 28, 2009
— Open Blog [Sorry for the delay - genghis is out and asked one of us morons to post this for him earler, but we're all slackers so no one got around to it until now - Mætenloch]
HereÂ’s a couple of articles for you to compare and contrast.
Item #1: IÂ’ve gone out of my way to avoid most of the celebrity death stuff over the past few days (unless bacon was involved) but as always, the media has moved on to the next phase of grieving/exploiting which is the What Does it all Mean? phase. And why should this be any different, particularly since theyÂ’ve got a two-fer going? But now, just in our time of greatest need for healing, comes a piece from the AP titled This is the Moment When Generation X Realizes TheyÂ’ve Grown Up. So please settle back on your generational therapy couch and we can begin our session:
”It all seems so quaint now, the fragmented dream memories of a fleeting micro-era that began with words like "bicentennial" and "pet rock" and ended with MTV, Atari and absurdly thin cans of super-hold mousse. The man-child named Michael Jackson and the luminous girl known as Farrah Fawcett-Majors jumped into our consciousness at a plastic moment in American culture - a time when the celebrity juggernaut we know today was still in diapers. When they departed Thursday, just a few hours and a few miles apart, they left an entire generation - a very strange generation indeed - without two of its defining figures.”"These people were on our lunchboxes," said Gary Giovannetti, 38, a manager at HBO who grew up on Long Island awash in Farrah and MJ iconography. "This," he said, "is the moment when Generation X realizes they're grown up." It was a long time coming. Cynical, disaffected, rife with ADD, lost between Boomers and millennials and sandwiched between Vietnam and the war on terror, Gen X has always been an oddity. It was the product of a transitional age when we were still putting people on celebrity pedestals but only starting to make an industry out of dragging them down.
Its memorable moments were diffuse and confusing - the Ronald Reagan assassination attempt, the dawn of AIDS, the explosion of the Space Shuttle Challenger. It had no protest movement, no opponent to unite it, none of the things that typically shape the ill-defined beast we call an American generation.”
So in other words, shit (I’m sorry…”historical events”) just sorta’ happened as it does during every time period but what apparently defines a generation is a protest movement. We were simply deprived of the opportunity to get out in the streets and march against…something. Probably because we were mindless conformists and the Atari-Industrial complex had us too distracted with promises of endless rounds of Asteroids. Let’s just go ahead and wrap it up with an epitaph:
”In the 1990s, members of Generation X would often laugh in bars about how the time of the Boomers was passing - about how the quaintness and naivete that made up the 1960s was, finally, a grave being danced on by Kurt Cobain. Today, members of that same generation sit upon the ground and tell sad stories of the death of kings of pop.”
So If you happen to be a part of that lost generation it must be hard for you to hear that youÂ’ve finally grown up. Personally I thought IÂ’d done so a dozen years ago when the first mortgage statements started appearing in my mailbox. But once weÂ’ve finished sitting around on the ground and telling sad tales of the death of kings of pop we can all take heart in this next story, canÂ’t we?
Item #2: So hereÂ’s the compare and contrast part. ItÂ’s about a man who was trapped in a well for 4 days.
”PORT ALICE, B.C. -- Robert Bennett doesn't understand the hoopla surrounding his survival story. Then again, he’s not easily excited. The…man was working on his property when he fell through a decayed well cover in his yard. Bennett felt some 12 feet down. Most people would panic, but not Bennett. Shaken but unharmed, he started plotting his escape. "I made many attempts to get out, and all I had was the pieces of the lid, the wood pieces. And of course, they had broken apart. I would build these various edifices, and I would get up and get so high. And then the (darn) things would crack out on me and so I would think, 'Well, we gotta try it again.”
WhereÂ’s the angst in this story? There must be angst, right?
”What began as hours took up an entire day. Then night fell. Then the sun came up, and so on. But if Bennett was distraught, he didn't show it. He exercised. He went over his to-do list. He had plenty of time and plenty to drink. "Be sort of a... fool if I suffered from thirst, sitting next to a six-inch water valve, you know," he said.”
And mulled over the loss of pop icons IÂ’m quite sure, but the story doesnÂ’t mention that.
” Rescuers considered it a miracle. But for Bennett, it was just another adventure along the road. "I fell 50 feet down a shaft one time and survived quite well. What the hell's a 9-foot fall?" he said. Not having eaten a thing, Bennett lost some weight during those four days. He told his rescuers all he needed was some soup and a sandwich, and he'd be all right. But he reluctantly went to the hospital to be checked out.
So that should restore a little of your faith in humanity and the survival of Western culture. Just knowing that we have tough and resourceful guys like Mr. Bennett around makes me think that the future of America is secure. Well, except that Mr. Bennett is Canadian. And 84 years old.
Oh well, whatever. Never mind.
more...
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— Dave in Texas A vote their Supreme Court declared was illegal. Hugo Chavez blames the "rich people".
Does that sound familiar?
The AP applies banana republic spin (shocka!). They're as dependable as the State Department.
The first military takeover of a Central American government in 16 years drew widespread condemnation from governments in Latin America and the world, and Chavez vowed to overthrow the country's apparent new leader.President Manuel Zelaya was awakened Sunday by gunfire and detained while still in his pajamas, hours before an unpopular constitutional referendum many saw as a power grab. An air force plane flew him into forced exile in Costa Rica as armored military vehicles with machine guns rolled through the streets of the Honduran capital and soldiers seized the national palace.
Zelaya tried to pull a Chavez and was stopped. And yet, the State Department of the United States of America condemned it. The new interim President of Honduras, who was sworn in to finish out Zelaya's term and no more responded thusly: "I don't think anyone here, not Barack Obama and much less Hugo Chavez, has the right to come and threaten (Honduras)."
It's a sad goddamn day when central America teaches us lessons about controlling power grabs. Thank goodness we aren't meddling in the affairs of the Islamic Republic of Iran.
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— Purple Avenger Heh, these guys are giving "carbon footprint" data with their LED bulbs.
So if I replace all my CFL's with these, can I start cashing in on some of those phat Cap/Trade Obama-bucks?
Below the fold, my spies have located the prototype of the new Pelosi Motors eco-car that will go on sale next year. more...
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— Open Blog Genghis may have come close to jumping the bacon shark, but I just wanted to point out that bacon is more than just a tasty food group - it's also an artistic medium.
Yes, nearly everything in this picture is made out of meat in one form or another but mostly bacon. Mmmm delicious bacon.
more...
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— Dave in Texas "it's a huge tax and there's no sense calling it anything else. I mean, it is a tax. So it -- and it's a fairly regressive tax."
Well no shit Warren.
In same, David Axelrod explains lies about how this increase does not affect the poor. Because they'll pay less for energy or some nonsense, dissembling and ignoring the fact that we all pay x for a kilowatt and y for a gallon, promising they'll get help with their energy bill.
that reason. In 2020, and for lower income people, it actually will be a net gain because they'll get some help with their energy bill. So I think this is a phony issue.And the real issue is, what is the Republican strategy for creating jobs? This bill actually, they call it a job killer, it will create millions of green jobs, the jobs of the future. We've lost millions of jobs in the recession that began last year and continues.
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— Dave in Texas So are you stumbling out of bed with that awful fuzzy taste in your mouth, your hair stuck up all goofy and the cat hiding under the bed yowling at you about something you can't remember?
Good, good. Sunday morning in America again. Congratulations, you woke up on the right side of the dirt. The very same thing happened to me two weeks ago, and I have no idea where I found that cat or how I snuck it into my hotel room.
Commenter mpur put a Texas meetup signal out last night.
Ok, since this is apparently the ONT, here's a reminder for those who may have missed it: I've set up a yahoo group for Texas (and other interested) morons for coordinating meet up info. If you're interested, shoot me an email at mpur458 at yahoo. Put "meet up" in the subject line and let me know your AoS handle so I know who you are. Thanks!Carry on.
Posted by: mpur at June 27, 2009 11:55 PM (0YXgd)
And Virginia too,
10 Moron meet up in central Virgina (Richmond area)Put "moron meet up" and "what are you wearing right now"? in the subject line.dcore42 at gmail dot com
Posted by: Dave C at June 28, 2009 12:05 AM (WYRx/)
If anyone wants to add other places put em here. These things are an awful lot of fun, if somewhat hard on the liver. Also check back here later for important messages about lace wigs.
In newsy news of the day, genghis passes along this bit from Iran. They arrested some British embassy staffers. Nine or so involved, some released.
There's also a breaking bit about the arrest of the Honduran president by the military.
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June 27, 2009
— Open Blog Oops. Sorry it's so late. I should've just bumped the bacon thread.
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