Commentary Magazine


Contentions

Is This What Judges Should Do?

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?



Join the discussion…

Are you a subscriber? Log in to comment »

Not a subscriber? Join the discussion today, subscribe to Commentary »





Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.