This week, I wrote regarding Sotomayor’s decision in the Ricci case that “the city never claimed and was never asked to prove that the test was defective and therefore the basis for a claim of disparate impact by the failing African American test-takers crumbles. You simply can’t be permitted to discriminate against one group of people because another group might raise a fuss, albeit a meritless one. (I discuss the analogy to ‘customer preference’ cases here.)”
Stuart Taylor reaches the identical conclusion:
The [Judge Jose]Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the “disparate-impact” provisions of federal civil-rights law.
In fact, neither Sotomayor nor any other judge has ever found that the exams — one for would-be fire lieutenants, one for would-be captains — were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.
Taylor correctly argues that the natural result of Sotomayor’s decision would be to condone overt discrimination, that is disparate treatment, of any individuals who do well in their chosen field:
Such logic would convert disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.
What Taylor also makes clear is that the New Haven city officials knuckled into public pressure by “powerful African Americans” to throw out the test. What better example is there of the need for impartial justice to protect a politically unrepresented and unpopular figure ( Frank Ricci) from the howls of the mob that would deny him the equal protection of law? Unfortunately Sotomayor didn’t grasp that. She condoned the mob’s bullying and was prepared to give those that caved to their pressure a legal stamp of approval.
The Senate must ask: is this what we want in a Supreme Court justice?