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Re: Don’t Break Out the Champagne

Linda, while Harry Reid’s and Nancy Pelosi’s tone deafness never fails to amaze me, I find it nearly inconceivable that they would seek to overturn the Ricci decision. For starters, polling shows that the public overwhelmingly opposes racial preferences and the sort of naked racial power grabs that nearly took Frank Ricci as their latest victim. The latest:

A CNN/Opinion Research Corporation national survey released Monday morning, as the Supreme Court handed down its ruling, indicates that 65 percent of those questioned say the firefighters were victims of discrimination and should get promotions based on the test results, with 31 percent feeling that the city should a new test to make sure minority firefighters were not victims of discrimination.

Moreover, should Congress decide to take this up the optics might be less to their liking than in the Ledbetter case. Rather than the sympathetic Lily Ledbetter, Reid and Pelosi would face Republicans battling for a working class hero, Ricci, who without court intervention would have been left to the race-victimization mongers.

To that end, I would call everyone’s attention to a fascinating concurring opinion by Justice Alito, who goes chapter and verse through the racial bullying that precipitated New Haven’s decision to throw out the test. The local bully, a powerful African-American reverend with ties to the mayor, led the charge to throw out the tests. The  public campaign went so far as to claim the white fire fighters had cheated. Alito concludes:

Taking into account all the evidence in the summary judgment record, a reasonable jury could find the following. Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the 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 persuade the CSB [civil service board] that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decision making authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency.

So if Reid and Pelosi want to take the side of the identity politics mob, it would be one revealing fight. Defenders of the Ricci case would have no better argument than Alito’s masterful summation:

Petitioners are firefighters who seek only a fair chance to move up the ranks in their chosen profession. In order to qualify for promotion, they made personal sacrifices. Petitioner Frank Ricci, who is dyslexic, found it necessary to “hir[e] someone, at considerable expense, to read onto audiotape the content of the books and study materials.”. . . He “studied an average of eight to thirteen hours a day . . . , even listening to audio tapes while driving his car.”

Petitioner Benjamin Vargas, who is Hispanic, had to “give up a part-time job,” and his wife had to “take leave from her own job in order to take care of their three young children while Vargas studied”….

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39.

But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

If Pelosi and Reid really want a fight, I would suggest they consider how all that will sound to the average American.



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