Oh, yes, here it is: On Sotomeyor’s views in the Ricci case.

All I can suggest (once again) is that you go back and read the actual opinions in Ricci. The case history is extremely curious, particularly when you see the bare majority — the liberals on the 2d circuit — suddenly morph their initial order burying the potent appeal of Ricci and the other plaintiffs, together with the previously unpublished opinion of the trial court, into the statement of the law for the entire the circuit on the question!

Perhaps then you’d begin to understand what Stuart Taylor was saying regarding the historical perspective on disparate impact case law.

I did not say that the Supreme Court came down on the wrong side. His point was that what the Burger Court initially thought would play a remedial role in Title VII cases, has turned into something quite different, and has actually contributed to the erosion of what Taylor terms “the anti-discrimination principle” and the ascendancy of identity politics.

Stuart Taylor, on a Republican nominee:

Alito’s critics have similarly ignored much evidence that his 15 years of steady, scholarly, precedent-respecting work as a judge tell us more about him than a handful of widely (and misleadingly) publicized memos that he wrote more than 20 years ago.

On a Democratic nominee:

And some may see Sotomayor’s letter [written as an undergraduate] as evidence that she was predisposed to look for the worst, not the best, in the institution that had afforded her such opportunities. She now sits on Princeton’s Board of Trustees.

You’ll excuse me if his pronouncements on the matter are not persuasive.

It’s appropriate you would cite Jonah G.; but hardly persuasive.

Here is the correct link to Stuart Taylor’s article in the National Journal. http://www.nationaljournal.com/njmagazine/or_20090530_4112.php

In the real world, many people do recognize the growing gap between the constitutional ideal embodied by the equal protection clause of the 14th Amendment and the original provisions of Title VII, on one hand; and the consequences of the remedial numbers game played by employers and Courts that have increasingly skewed the process on the other hand. It is not a fantasy; it is a reality

For example, Stuart Taylor has posted a very interesting column in the National Journal regarding the import of the Ricci case, as it illustrates the growing divergence between the “the anti-discrimination ideal” embodied in the original Title VII, and the remedial measures initiated by the United States Supreme Court in the line of cases beginning with Grigg v. Duke Power in 1971, intended to eliminate what is deemed to be the “discrimination” that arises from what Taylor identifies as “the use by employers of any merit-based tests or other objective criteria for hiring or promotion that have a “disparate impact” on different ethnic groups — as almost all objective tests have.”

I might have said some of the other things he said in his piece a bit more strongly. But I certainly agree with the premise.

Apparently unlike you, I have actually read the Ricci case. It seems clear to me what Sotomeyor and three judge panel were engaging in with this case — was an obvious power play to prevent the establishing of a record of discrimination against Ricci and the remainder of the plaintiffs. Granting summary judgment in spite of his potent constitutional claims.

On that basis, I agree with Jonah Golberg who I think has correctly pegged this decision by Sotomeyor as “reactionary” in nature, insofar as it attempted to hide the blatant discrimination inherent in too many disparate impact findings by courts.

When Judge Jose Cabranes, nothing that there was the record demonstrated the potential for an unconstitutional quota or set-aside, he quite rightly called them on it with his stinging dissent, noting that potential constitutional dimension to the case. The majority ignored it. The reaction of the liberal majority was to exhume their initial order, already four months old, rename it as a per curiam opinion, and thereby elevate it, and it’s endorsement of the opinion of the Federal District court, to the statement of the law on the subject for the full Second Circuit. Thus by one vote the majority (7-6) succeeded in preventing the entire 2d Circuit from sitting en banc to hear the case, and Mr. Ricci from getting his day in court.

On that point, I agree with Judge Carbranes and the remainder of the group of six judges. That is not a “fantasy.” But Judge Sotomeyor and the liberals would have relegated any similar challenge to the fixed system into the dustbin — summary judgment for all who would challenge their fixed little game!

In fact, Les, the United States Supreme Court has heard the case and, judging from the reports of the oral argument, there is hope that the Court can turn what you insist is fantasy into a revived equal protection ideal, instead of continuing down the road of institutionalized identity politics and unconstitutionally discriminatory presumptions.

Gordianus: So my take on this whole business is that if we are to abandon the original intent and the Anglo/Christian culture of the founders, than I am left to defend my own gang against all others.

Huh. What am I to take from this, and the balance of the comment? That any non-anglo, non-Christian cultural influence is not American, and should be resisted or barred? And that you aren’t against bias per se, you simply want bias in favor of your gang? Well, as I was trying to say, this is the basis for never getting beyond gangs to become a nation.

Oh, no wait. It never got to that, did it?

The firm that prepared the testing materials — at a cost of about $100Gs, I understand — I O Solutions of Illinois — prepared them with the intention of inducing the diversity results “devoutly to be wished” by the City.

And yet, it just didn’t happen!

I suppose that it was inevitable that at some point the guiding constitutional principle of equal protection of the law for everyone would come into conflict with rules and rulings that have plainly been intended to force the implementation of selection processes that would produce quota-like outcomes favoring only certain groups.

Griggs v. Duke Power Co. may eventually go down as a sort of Plessy in reverse, or Plessy-lite, insofar as the decision has had the effect of institutionalizing racialism as the bottom line standard for hiring in compliance with Title VII. The ’91 amendments undid any chance to ameliorate the long term effects through litigation, short of a declaration on constitutionality.

This Ricci case highlighted that growing divergence, exposing the truly Orwellian character of current employment law and practice — “All pigs are equal, but some pigs are more equal than others.”

I am not, as some have, crying racism, because I personally believe that should be understood as an animus based solely on race. But given the record of racism charges hurled by certain “opinion leaders” over the years for exceedingly small potatos comments, it is certainly not hard to understand why the charges are now flying back the other way.

What is very clear is that the initial actions of Sotomayor and the other liberals on the Court of Appeals — with their first order in this case — were unquestionably aimed at short-circuiting and burying a case that could have easily upset the apple cart by highlighting that divergence. They were not motivated by any concern whatsoever for the litigants in the case, and thereby refusing to offer them anything even faintly resembling equal protection under the law. And that alone should disqualify Sonia Sotomeyor for consideration as a Supreme Court justice. But it won’t.

When it was obvious the dissent would strongly take them on, she and the liberals acted instead to leverage the district court case into the “law” for the entire circuit.

The irony is that the Supreme Court may now (hopefully) be preparing to reverse, giving her — and the President who seeks to appoint her — the sort of exposure that could cause the system to re-boot and right itself.

What I asked was:

“Try to come up with something, anything really, in the language or legislative history of either the 14th Amendment, or for that matter, of Title VII, which provides that it was the intention of the 14th Amendment founders, or the legislators of Title VII, to provide for a testing process for employment promotions for official positions, whereby governments may take such official actions — ones that everyone agrees are done in an entirely neutral manner with regard to race — but when the consequences of taking those actions do not produce the racial results that are to their liking, they may arbitrarily nullify those entire process, and begin again, until they get obtain the racially-based results they obviously wanted to begin with.”

You instead have opted to answer an entirely different question by telling me that Google was my friend, and you then launched into a discussion of recent regulations implementing Title VII.

How about either addressing the question, or conceding that there is nothing you know of?

By way of background, the entire legal history of the United States Supreme Court’s adjudication of cases arising under the equal protection clause, including the line fully incorporating the amendment through the 5th Amendment due process clause to cases involving virtually any form of “state action” at whatever official level, has represented, to some extent, a results-oriented effort to address racial (and other) disparities by significantly skewing the legal process to the benefit of those folks who are able to demonstrate they are part of or a member of one or another “suspect classification.”

What started out in the Court as an effort to eliminate invidious discrimination, has evolved into little more than a numbers game, with litigants branding anything other than a result displaying a complete numerical absence of racial disparity, as a constitutionally impermissible result requiring a do-over, regardless of what the intention of the official actor or actors was.

While that may be a bit general, my point is that, however salutary the intention may have been, that legal framework has at the same time created its shadow “other” . . . the undeniable and unequal legal treatment of those who are not members of some suspect classification. White males, for example. Mr. Ricci is certainly one of those so harmed. His argument, which is quite novel, is essentially an effort to turn that rights analysis on its head.

In this case, a high level court is actually giving it’s imprimatur of approval to the actions of an entity that had initially jumped through hoops to implement a racially-neutral testing process for employments promotions, but when the racial composition of the results turned out not to be to their liking, they simply scrapped the results, claiming that they feared being sued!

But the liberals on the Second Circuit Court of Appeals, in their one paragraph dismissal of Ricci’s appeal from the summary judgment by the Federal District Court, initially demonstrated their arrogant attitudes by actually paying lip service to Mr. Ricci, acknowledging his considerable personal achievements – and then promptly blew off his appeal in one short unsigned paragraph order.

Here is exactly what they said in that initial order:

“We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.”

And then came the power play. Three days before the publication of that order, and four months after they had promulgated it, the majority withdrew the order and entered the same language into a one paragraph per curiam opinion, along with a citation to the previously unpublished district court opinion, thereby converting, and indeed leveraging that district court opinion into the final statement of the law on that point for the entire Second Circuit!

People like Mr. Ricci, who have played no part in discriminating against blacks or other minorities, and who have simply sought equal treatment in the eyes of the law, have been consistently discriminated against because of a numbers game that has evolved over time, one that results-oriented liberals, like yourself and Sonia Sotomeyor, refuse to ever acknowledge.

And for her, it has a big-time power game. She would no doubt seek to convert that blatantly discriminatory rule into the law of the land.

What was it she said again?

“Court of Appeals is where policy is made.”

“And I know, and I know this is on tape — I should never say that ’cause ‘we don’t make law’ . . . I know. Ummmm . . . uhhhh . . . Okay. I know. I know. I’m not promoting it, I’m not advocating it, I’m . . . you know . . .“

Yes, Sonia. We know the exact word you were grasping for – but dared not say.

You’re creating it!

But, for one thing, you forgot this:

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
. . . .

Sorry, Gordianus, that wasn’t a model of clarity. What I was trying to get at was that if your assumption is that the matter at issue (constitution, statute, whatever) is perfectly clear and has an obvious, (relatively) unchanging meaning, then you may be more likely to characterize disagreement as deliberate attack than honest attempt to find answers. The latter being more favorable to all of us getting along as a fractious, diverse gang of human beings.

More assumptions, no evidence. First the test is obviously neutral, now it’s designed to discriminate. If there were no requirement to demonize those you disagree with, a fairly straightforward human episode works:

City needs to promote some firefolk; decides, let’s use a test.
Salesman: got a test here, scientifically designed, non-discriminatory, captures ye firefolk skills.
City: cool; do it.
City: yikes; test might be good, might be bad; but if we use these results, somebody could have a good Title VII suit. Let’s try something else.
Lawsuit ensues.
Court: City had the right to start over.

Even if you can demonstrate that the city intended to Put Whitey Down, how do you drag Sotomayor into the scheme? Isn’t she supposed to be a Hispanic racialist, or something? And aren’t they down on the Blacks? And wouldn’t her dreaded empathy kick in for Ricci, who overcame serious personal disabilities to do well on the test? And finally, weren’t there a couple of Obviously Impartial Old White Guys on the decision with her?

I don’t know; it’s a whole lot of work to find a way to criticize a judge for not being an activist, but instead upholding precedent.

Let’s cut to the chase here. New Haven has shown that it will engage in any torture of language and law to achieve a racially predetermined result. For those of us who are looking for guidance as to Judge Sotomayor’s mentality regarding race neutrality, New Haven does not look good.