Commentary Magazine


The Senate Should Do Its Job

Scholar and Vice Chair of the U.S. Commission on Civil Rights, Abigail Thernstrom, recaps Ricci and reminds us of the important concurring and dissenting opinions:

The Supreme Court has made an elegant start at cleaning up the mess of employment discrimination law, in part by insisting on a critical point. “The purpose of Title VII is to promote hiring on the basis of job qualifications, rather than on the basis of race or color,” Justice Kennedy said. The goal was to create a workplace environment free of discrimination, “where race is not a barrier to opportunity.” And yet “the City made its employment decision because of race. The city rejected the test results solely because the higher scoring candidates were white.”

Justice Samuel Alito’s concurring opinion noted that New Haven never made any credible effort to determine whether the firefighters’ promotional exam was a legitimate test of job-related skills; the decision to discard the test results was nakedly political. The tests, in fact, had been scrupulously designed and scrubbed of all possible racial bias.

Incredibly, Justice Ruth Bader Ginsburg, writing in dissent, agreed with the willfully blind conclusion of the district court — which had reasoned that New Haven’s assessment “was race-neutral” on the grounds that “all the test results were discarded, no one was promoted.” The panel on the Second Circuit effectively agreed with this nonsense.

She and others who have taken the time to read the justices’ multiple opinions have concluded that it was hard to miss — except willfully — what was a stake here. As Alito detailed, there is a veritable industry devoted to hounding private and public employers to impose quotas and preferences. They cajole and threaten, bluster and sue. PRFDEF, the NAACP, MALDEF and others like them spend thousands of attorney hours and millions of dollars doing this, year after year. The goal is to intimidate, bully, and render employers — both public and private — wary of letting the chips fall where they may. Their goal is to shape employers’ actions so that merit no longer determines the outcome in thousands of hiring decisions. The pressure to succumb to their threats is great.

Sometimes, as Thernstrom points out, the stakes are very high:

Here we should listen to Frank Ricci, the lead plaintiff. He appeared at a hearing held by the Civil Service Board before the test results were released. “The people who passed should be promoted,” he said. “When your life’s on the line, second best may not be good enough.” Residents in a burning building want competent firefighters. They don’t care about the race of those whose job it is to save them.

It is tempting for the Senate not to dwell on Ricci or on the upcoming Sotomayor confirmation hearing. After all, there is the economy, healthcare reform, and many less controversial topics. But nothing can be more important.

We forget how critical these nominations and confirmation hearings can be. After all, without the nomination and confirmation of Chief Justice Roberts and Justice Alito, Frank Ricci could well have been stuck with his terse dismissal from the Second Circuit. The very fiber of our society may be altered by one or more of the appointments Obama is likely to make to the Court during his presidency. Are we to look the other way when the victimization mongers raise a fuss? Or do we as a society tell employers to stand up to intimidation and resist the urge to discriminate against those without a civil rights lobby behind them?

It behooves the Senate to take seriously its responsibilities, to question Sotomayor and to consider why it is that she could not discern the issues, articulate her reasoning, and reach a defensible result in Ricci. Future Frank Riccis who may come before the Court in the years to follow deserve nothing less.