What if the tests is written in a manner to discriminate against those who knew the subject in favor of the inexperienced?

If the tests had built in bias to favor minority testers, would she have supported it?

It is ludicrous to throw a job experience and knowledge advancement test out, on which some test-takers did poorly, by making an assumption that they failed because as minorities they were disadvantaged in the smarts department. If you want to advance in a career, you need to study and know your sh*t.

In some fields it can be dangerous to advance people who are not up to performing at levels beyond their experience and capabilities. (The office of the POTUS for example.)

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Actually, triz, my objection is she uses precedents to expand the law (i.e. allowing New Haven to totally discard the tests, unlike Kirkland) which supports her main concept that racial preferences under the guise of 14th Amendment is just hunky dory.

And yes, confirmation hearings should be the venue to sort this out. But they are trying to rush the confirmations, and all depends upon the bozos asking the questions. Unfortunately, Congress is filled with bozos on both sides of the aisle. And it’s all of us… the citizens… who pay the price for Congressional lack of due diligence because, just as you say, they are counting future voting blocks.

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Hope my comment didn’t come off as back-handed; I genuinely respect the spartan work you guys are doing in parsing these issues.

What you see as “kicking to the curb” I see as letting due process take its course and not obfuscating the law. The case is going up to SCOTUS and will likely be overturned along with all of it’s ancestors – all’s well that ends well. I agree, though, that this shows a lack of will to tackle complex Constitutional questions. In fact, my main complaint about Sotomayor is that she plays it too much by the book and seems to have no desire to look at historical context / broad applicability of her decisions or consider reasoned changes to established law.

It’s funny, I only now recognized that we have a venue where all of these nuances can be sorted out – the confirmation hearing. Although I have an inkling that we’re the minority in discussing the issues rather than pushing polls and counting future minority voting blocks before they’re hatched.

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triz: The Kirkland decision is a bit odd, but I would think that if some hand-picked credits resulted in qualification of only 9% of minorities when they had scored almost identical on an aptitude test, then the choice of those credits is suspicious.

triz, they had a top percentile that fit with the PC Title VII standards. Since they could not offer appointments to all, they had to figure out ways to decide who was more entitled. And they did this based on seniority and experience credits. To say this is unfair would be the equivalent of you and I making near identical scores on exams, you with more veteran experience, and me being female. I get the job based on “quota” rules.

If you are an employer, would you rather have you promoted based on seniority and experience credit? Or me because I fill a racial/gender quota? And even in that decision, as I excerpted, the judge recognized this was discriminatory detrimental to the non-minority, but that discrimination detriment fell within his judicial acceptance.

So I guess some discrimination is okay in the court’s eyes as long as the judge considers it “moderate” discrimination. Boy do I feel queasy. Especially when the intent was never based on race discriminaiton.

In fact, if Sotomayor had ruled in favor of Ricci, this would have struck a blow to the anti-affirmative action effort by, essentially legislating, contradictory laws on the books instead of letting the appeals process run its course and have the SCOTUS overturn a plethora of lower circuit decisions, settling this issue once and for all.

In other words, Sotomayor and the 2nd kicked the Constitutional issue in Ricci to the curb and refused to deal with it. However there is evidence presented in the oral arguments that not only did they dodge the issue, they went the extra mile to bury the firefighter’s evidentiary arguments. This compounds not only dodging the issue, but attempting to hide it.

At best it portrays a judicial panel who refuses to dance around Constitutional issues, and at worst shows the same attempting to cover their tracks. This is why I say that a Ricci reversal becomes quite a statement on Sotomayor’s judgment, as well as making a more definitive statement on affirmative action v Equal Protection found in the Constitution.

Maloney will offer the same in the RKBA v states’ rights issue… another kick to the curb moment.

It’s a sad state when the most compelling information I’ve gotten has been from this blog and others and from personally reading the cases; while the MSM focuses on “a compelling life story” and gossip from anonymous co-workers.

Very nice compliment you pay the FA community. For the most part, most of us do try not to mire ourselves solely in the mud. We’ll get muddy, mind you… but we do because we came to the opinion it’s appropriate to sling the mud to begin with. LOL

But yes… it is a sad state of affairs. I’ve already seen David Savage from the LA Times begin the whitewashing… er Hispanic washing… of the likely SCOTUS reversal of Ricci. This is because they view it as a statistic, and not the context of the ruling and how it fits within judicial philosophy.

That, IMHO, is a major error. As the Dems ripped the Bush nominees for judicial philosophy, the same should be able to be addressed with Obama’s nominees without have racist accusations hurdled. I don’t want judges who “choose to see” facts. Does this mean there are facts they choose *not* to see? This is truly, by her very chosen language, an admission of her personal philosophy.

Kirkland, the foundation of Bushey, created a foundation of settlement/compromise after test results. When New Haven threw them out entirely, Sotomayor and buds created a new and more drastic “cure” for what may not even be a disparate examination. Kirkland, to my knowledge, never even approached SCOTUS for a hearing. Bushey did, but whether that was denied on the issue or a technicality of lower court ruling is not addressed in the SCOTUS records.

What we do have is the dissenting opinion on the refusal to hear, and you can see that some of the robed ones are very concerned about states’ attempts to interpret the 14th Amendment as the ability to “…establish preferential classifications on the basis of race in the absence of rulings by an appropriate body that constitutional or statutory violations have occurred.” Notice that “in absence of rulings by an appropriate body that constitutional or statutory violations have occurred” bit? *Very* important. He is fully admitting that the Constitutional issue in Bushey was never fully addressed. And I consider that very heartening…. at least from the dissenting High Court members.

But it’s good you see that the media and the Sotomayor supporters are attempting to ram this confirmation down the nation’s throats with little vetting and debate. And they are not only trying to do this by shutting down opposition and exploration of her philosophy, but they are trying to do this at lightning speed. They want this done before Congress heads out for their summer vacation starting Aug 7th.

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@MataHarley: Sorry about the link, I tried to pick one that summarized the situation well but they clipped the list of cases from that quote (Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v. N.Y. State Civil Serv. Comm’n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985)). Regardless, you found the gist and some other interesting cases. The Kirkland decision is a bit odd, but I would think that if some hand-picked credits resulted in qualification of only 9% of minorities when they had scored almost identical on an aptitude test, then the choice of those credits is suspicious. INRE (to borrow an acronym) the test, you’re right, the burden of proof falls on the test and in bickering over who has the burden of proving the burden I’m splitting hairs. Regardless, the crux of our argument is this:

You call it “rule of law”, however it is a law that, until Ricci, has not been considered by SCOTUS. If they overturn it, as it may be likely to do, this provides an opinion that addresses this issue.

The Ricci court looked at the court history for these types of decisions – at Bushey which allowed race-norms, at Hayden which allowed selecting only those portions of an exam which were normal, at Kirkland which was settled and un-challenged by SCOTUS – and saw precedent. Moreover, it was not Sotomayor’s role to decide of the current precedent was fair or unfair, merely to decide if it had been applied correctly. In fact, if Sotomayor had ruled in favor of Ricci, this would have struck a blow to the anti-affirmative action effort by, essentially legislating, contradictory laws on the books instead of letting the appeals process run its course and have the SCOTUS overturn a plethora of lower circuit decisions, settling this issue once and for all.

—

The Berkeley quote is stark, but when taken in the context of the speech I “choose” to believe that she’s simply pointing out the well established idea that personal experiences effect our decisions; she goes on to say that we should recognize this rather than ignore it, and try to make sure that they effect us positively (as they have for other white male justices in the past). To say that we all have biases is not the same as justifying outright prejudice. Mainly I wanted to clarify your claim about runligs, it may seem like nitpicking, but this is how a single borderline case turns into a pattern of racist and discriminatory judicial decisions.

It’s a sad state when the most compelling information I’ve gotten has been from this blog and others and from personally reading the cases; while the MSM focuses on “a compelling life story” and gossip from anonymous co-workers.

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triz, your Bushey link above doesn’t even mention that case. That, BTW, is a 2nd Circuit decision. And, in fact, the 2nd Circuit based their Bushey decision on Kirkland v. New York State Department of Correctional Services. Oddly enough, that was a case where the test results were *not* “disparate”, and 88% of minorities achieved the scores (compared to 92% of the non-minorities). Appointments were being made, with final consideration including adding seniority and veterans’ credits to the candidates’ adjusted scores. When only 9% of them went to minority candidates, the minorities filed a lawsuit.

To make a long story short, they worked out a “settlement”. Yet in that settlement hearing, Judge Griesa wrote:

The present settlement agreement is not only justified by legal precedent, but is inherently reasonable and sound as a matter of policy. The benefits to plaintiff class of minority applicants inevitably result in some detriment to non-minority correctional officers competing for promotion to the rank of Lieutenant. However, the benefits to plaintiff class are modest and are carefully tailored to the precise problem raised by them in litigation. By the same token, the detriment to the non-minority applicants is also modest and is in fact considerably less than what might have occurred if plaintiffs had pressed their litigation to the end and not agreed to a settlement [i.e., those appointments already made could have been declared null and void].

What this judge said, in fact, was there was a “detriment”… I guess his PC word for discrimination… to the non-minority correctional officers involved, but he deemed it a good trade off, describing that discrimination as “moderate”.

Pretty reprehensible, IMHO. And it is on this foundation that the 2nd decided Bushey.

The Supreme’s refused a rehearing of Bushey, effectively dodging the Constitutional issue at it’s center. I find almost no write ups on what points of law or arguments they used for their refusal. However a dissent was written up by Rehnquist himself, stating:

I believe that the Court of Appeals’ opinion reaches questionable conclusions on difficult and important questions, and that certiorari should therefore be granted. Principal among these decisions is the court’s unexplained extension of Weber to allow voluntary affirmative action by state employers. This Court has never taken the position that, consistent with the restraints of the Fourteenth Amendment, a state agency may establish preferential classifications on the basis of race in the absence of rulings by an appropriate body that constitutional or statutory violations have occurred. See University of California Regents v. Bakke, 438 U.S. 265, 302-310, 98 S.Ct. 2733, 2754-2758, 57 L.Ed.2d 750 (1978) (opinion of POWELL, J.). Cf. Firefighters v. Stotts, 467 U.S. 561, 583, 104 S.Ct. 2576, 2590, 81 L.Ed.2d 483 (1984) (again reserving the question of a public employer’s ability to adopt voluntary affirmative-action plans).3 Certainly the express reservation of the question in Weber suggests that a public employer may fare differently in this regard from a private employer, and no decision of this Court subsequent to Weber holds that it is consistent with the Fourteenth Amendment for a state agency unilaterally to decide to use race-based criteria to favor minorities in employment decisions. The States are not granted the enforcement power under § 5 of the Fourteenth Amendment that many Members of this Court found important in upholding the congressional Act in Fullilove v. Klutznick, 448 U.S. 448, 472, 100 S.Ct. 2758, 2771, 65 L.Ed.2d 902 (1980) (opinion of BURGER, C.J.); Id., at 500, 100 S.Ct., at 2786 (POWELL, J., concurring). Nor is there even a hint in the opinions below that the State Correction Department has violated the Fourteenth Amendment, either in utilizing this particular test or otherwise, by purposefully discriminating against minority employees. The test itself has been deemed irrelevant to this litigation. All that has happened here is that the State has perceived a statistical disparity in the test results of minority and nonminority applicants, and, at least in part because it fears a lawsuit by minority applicants, it has chosen to do away with that disparity by discriminating against similarly situated nonminority applicants.

Lowering the standards to achieve weighted scores via race is illegal at the heart of the Equal Protection Clause in the US Constitution. And only now, in Ricci, will the Supreme’s be forced to address the issue they refused to hear in Bushey.

The entire notion that test results must provide a sampling of racial classes is affirmative action and discrimination. Period. You call it “rule of law”, however it is a law that, until Ricci, has not been considered by SCOTUS. If they overturn it, as it may be likely to do, this provides an opinion that addresses this issue.

As to the burden of proof INRE the test becoming the issue in a Title VII suit by the minorities, I state that as it references to the 8th Circuit’s refusal to hear FIREFIGHTERS INSTITUTE FOR RACIAL EQUALITY v City of St. Louis, and USA where black firefighters sued the City for entry level positions. The Circuit did not really address the test as disparate in it’s design, but did accept that the results proved to be racially disparate.

It is not disputed here that the 1974 written exam for the fire captain’s position adversely affected black candidates as a whole. The district court concluded that the statistical evidence presented established that the test had a disparate impact on blacks.4

12
It is a distinguishing feature of a Title VII cause of action that discriminatory impact suffices to establish a prima facie showing of discrimination. The recent case of Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) establishes that a law or other official act is not unconstitutional solely because it has a racially disproportionate impact regardless of whether it reflects a racially discriminatory purpose. However, Congress’ statutory standard for Title VII, where discriminatory purpose need not be proved, is unshaken by the Washington decision. Id. at 246-47, 96 S.Ct. 2040.5

13
It is now a familiar principle that Title VII was not meant to preclude the use of testing devices, and that what is forbidden is the controlling use of such tests “unless they are demonstrably a reasonable measure of job performance.” Griggs v. Duke Power Co., 401 U.S. 424, 436, 91 S.Ct. 849, 856, 28 L.Ed.2d 158 (1971).

14
Once a racially adverse impact is demonstrated, the burden of proof shifts to the employer to prove the job relatedness of the exam he has utilized. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Accepted professional methods of “validating” exams for their job-relatedness are found in the EEOC Guidelines published in 29 C.F.R. § 1607.5 (1975).

When you looked at EEOC, you looked only for the result percentages… not whether the validation was found to meet a fair EEOC guideline. However, as I said, in the event of a lawsuit INRE adverse impace, the burden of proof then falls on the test… the employer to prove it meets the guidelines vs the plaintiffs accusations that it does not. Perhaps I could have worded it more clearly that saying the plaintiffs would have to prove that test is discriminatory… they indeed must submit evidence in contrary to the EEOC guidelines to prove just that. Just as the employer must submit his evidence that it is in compliance with EEOC guidelines. But then, the issue becomes about the exam and it’s discimination.

INRE “other cases”, we peons still don’t have a complete record of Sotomayor’s judicial history. Finding 2nd Circuit opinions online isn’t easy, and is a lengthy process that is best left to those who have the time as a professional to do due diligence in vetting a nominee (and in that… we have few “investigation journalists” who do that anymore…)

But we do have, straight from the horse’s mouth in her 2001 Berkeley lecture, her judicial philosopy stating her judicial philosophy that:

Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see.

I am taking Sotomayor at her word. That she “chooses” to see facts… or not… based on her experience as a woman and a woman of color. Without going thru each and every decision of hers that is not a clear cut legal interpretation, and relies upon those “experiences” as the foundation for her decision, I can assume she “chooses” to see thru the eyes of a woman of color, and not a judge with a blindfold.

And that is not acceptable to me.

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@MataHarley:

you can’t lower standards for a test merely to make sure it produces racially proportionate results

Actually, you can. As we saw with Bushey v. New York State Civil Service Commission where exams were weighted differently and cited in the Ricci decision:

These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

New Haven did one better and threw out the whole exam, but the precedent is such that they could have gone so far as to explicitly change testing standards for different racial groups. Further, as I mentioned, a minority bringing a suit would not have to prove “that the test was deliberately designed to create an “adverse impact”,” but merely to show that the test had an “adverse impact”, deliberate or not. According to the EEOC and a string of cases including Bushey (where 25% of the minorities passed), that was demonstratively the case here.

Side note:

… and in rulings where “her life experiences” cause her to fall on the affirmative action side of the fence when the evidence is less clear and absolute

What other cases besides Ricci had anything to do with “life experiences” and affirmative action? Also, maybe I’m a stickler for accuracy, but I would substitute “rule of law and precedent” for “affirmative action” in your statement. If anything, ruling in favor of Ricci would have been a relativist decision based on empathy.

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[...] to add something to my post yesterday on Sotomayor’s Ricci decision the LA Times believes the case will be overturned: In a [...]

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triz, you can’t lower standards for a test merely to make sure it produces racially proportionate results. And I have no idea why you say the plaintiff did not argue the validity of the test as Torre specifically pointed out that the test was ..job-related and valid for use under Title VII.” That’s in Curt’s post above. And I daresay that’s probably not the only instance in the multiple hearings and sundry courts that the test under Title VII has been discussed.

The city would be open to lawsuit either by the minorities who claimed adverse impact, or by the firefighters who are allowed by law to sue an employerwho is discriminating because of race.

For New Haven’s method of thinking, it was a case of damned if they do, and damned if they don’t. They were litigation targets either way… by those who did not come up to snuff, or by those who did and were thwarted by this crap.

New Haven should have accepted the test results and allowed the promotions. Had they done so, the onus would have been on the minorities who (if they had filed suit) would have to prove that the test was deliberately designed to create an “adverse impact”.

As it stands, the rights of the firefighters have been blatantly violated merely on the speculation that a minority would have brought suit. This is not enough to trample a citizen’s rights.

Marcell: In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.

Flawed thinking, Marcell. We don’t know the specifics of those cases compared to Ricci in front of the Supreme’s today. It’s more likely that those lawsuits’ and their invalidity was quite obvious, so she would have no recourse but to rule that way. This may also be supported by the fact the suits did not advance thru the appellate process… (or possibly that the losers didn’t have the cash to get it to the Supremes).

So prior to your giving points to Sotomayor for rulings that were probably more obvious based on the evidence, or the procedure (as you point out), you’d have to know if any of those cases tried to get heard before the High Court.

Sotomayor has made her judicial philosophy quite clear in both her 2001 speech in Berkeley, and in rulings where “her life experiences” cause her to fall on the affirmative action side of the fence when the evidence is less clear and absolute. In other words, when in doubt, she automatically favors who she considers the underdog. And she bases that on not only race, but gender. This is not only inappropriate for a member of the High Court, but reprehensible as a judge in any capacity.

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@Marcell: I’m interested in your theory, and my gut tells me that the missing piece of the puzzle is Bill Ayers. Think about it, at around the same time that Barry Soetoro was training to be a crypto-Muslim so that he could become the first black president and institute the caliphate, Sotomayor (codename Bagheera) was training to be a crypto-black-panther so that she could become a circuit judge and decide a very small fraction of discrimination cases in favor of affirmative action which would increase the number of fires in wealthy neighborhoods, somehow cause all the planes to crash, and eventually lead to the downfall of this country! Obviously neither of these Ivy League morons could have concocted such a devious plan, but the smoking gun is the fact that many of Sotomayor’s decisions sound exactly like they were written by Ayers – the same lyrical flourishes such as use of adjectives and articles. Also, keep an eye on ACORN, La Raza (the RACE!), Chrysler Dealers, Lt. Quarles Harris Jr. and follow the money.

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