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The Ricci Case

The Supreme Court’s Ricci decision of yesterday is good evidence that Sonia Sotomayor is devious and unjust. Not a single justice supported her decision supporting summary judgement against the white New Haven firefighters without even the dignity of a published opinion explaining why. The 4 in dissent did support summary judgement for the employer, but in a weird, dishonest, way of their own. I suppose they were trying to give some color of support to Sotomayor. But looking into this case, it makes me think Sotomayor and her panelmates should have been impeached for her conduct in it, as clearly intending to evade enforcement of the law.

The big issue in contention is whether an employer can truly discriminate against whites because he is afraid that if he doesn’t, he will falsely be accused in court of discriminating against blacks. The answer seem to me pretty clearly to be No, and of course any liberal would accept that answer if it were a case of an employer turning down better qualified black applicants because he was afraid that if he treated blacks and whites equally he would be hauled into court on the grounds that he was practicing illegal affirmative action against whites. Liberal judges are result-based.

But we can at least hope that liberal judges will be procedurally fair. There are three ways this case could have proceeded:

1. The Supreme Court rules that the “fear of being sued” defense is valid, and then returns the case to a lower court for that court to find out if employer actually did have a fear of being sued instead of using that as a pretext.

2. The Supreme Court rules that the “fear of being sued” defense is valid, and then grants summary judgement to the employer, saying that it is utterly clear that the employer’s motive was fear of being sued and not an illegal desire to discriminate.

3. The Supreme Court rules that the “fear of being sued” defense is invalid, and grants summary judgement to the firefighters, since the city has offered no other plausible defense for its discrimination.

The Majority chose option 3. The Dissenting 4 Liberals chose 2– which is dishonest. I suppose one could reasonably doubt whether political pressure and desire to promote blacks instead of whites were important reasons, but one cannot say that it is so utterly obvious that the employer’s motives were entirely unpolitical and color-blind that a reasonable judge or jury could not find otherwise and there is no need to look at the evidence. As Alito’s concurrence says:

[T]he decision below, which sustained the entry of summary judgment for respondents, cannot be ffirmed unless no reasonable jury could find that the City’s asserted reason for scrapping its test—concern about disparate-impact liability—was a pretext and that the City’s real reason was illegitimate, namely, the desire to placate a politically important racial constituency….But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” 554 F. Supp. 2d 142, 162 (Conn. 2006), summarily aff’d, 530 F. 3d 87 (CA2 2008) (per curiam).

It’s noteworthy that Justices Kennedy and Roberts wouldn’t sign on to this concurrence. I treat that as a sign they don’t dare fight injustice and lying if it’s done by important people they need to work with.

The dissent goes into detail about Rev. Kimber and the evidence. It’s amazing.

Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” App. to Pet. for Cert. in No. 07–1428, p. 906a; see also id., at 909a. On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince….In 1996, for example, Mayor DeStefanotestified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. See id., at 126a, 907a. “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” …In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal manage-ment.” Id., at 127a; see also id., at 928a–929a. In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’” Thanawala, New Haven Fire Panel Chairman Steps Down Over Racial Slur, Hart-ford Courant, June 13, 2002, p. B2. After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ibid.; see also App. to Pet. for Cert. in No. 07–1428, at 929a, but he remained on the BFC and retained “a direct line to the mayor,” id., at 816a….Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regarding the matter.”….Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that
you would not put yourself in this type of position, a
political ramification that may come back upon you as
you sit on this [Board] and decide the future of a
department and the future of those who are being

Corporation Counsel Ude bristled at one board member’s suggestion that City officials were recommending against certifying the test results. See id., at 215a (“Attorney Ude took offense, stating, ‘Frankly, because I would never make a recommendation—I would not have made a recommendation like that’”)….Soon after the CSB voted against certification, MayorDeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.”…

Taking into account all the evidence in the summary judgment record, a reasonable jury could find the follow-ing. Almost as soon as the City disclosed the racialmakeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by aninfluential community leader to scrap the test results, andthe City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked—as things turned out, successfully—to persuadethe CSB that acceptance of the test results would be ille-gal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could test resultswas not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politi-cally important racial constituency….

It is noteworthy that the Solicitor General—whose position on the principal legal issue in this case is largely aligned with the dis-sent—concludes that “[n]either the district court nor thecourt of appeals . . . adequately considered whether, view-ing the evidence in the light most favorable to petitioners, a genuine issue of material fact remained whether respondents’ claimed purpose to comply with Title VII was a pretext for intentional racial discrimination . . . .” Brief for United States as Amicus Curiae 6; see also id., at 32–

The dissent authored by Justice Ginsburg is rather confused on how it comes out in the end. She says :

Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.

and later

As earlier noted, I would not oppose a remand for further proceedings fair to both sides. See supra, at 26, n.


What she is supposed to be saying in her dissent is precisely whether “final adjudication by this court is indeed appropriate”. It is just weird to say that since the Majority says summary judgement for the firefighters is best, she can’t say remand is best.

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