Krauthammer on Ricci v. DeStefano.

"Ricci raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures (in this case, examinations). It's not enough for a city to say, as did New Haven, that it was afraid of being sued by black firefighters."

Yes, but that sounds like a pretty low bar to clear in the next case. It may be an increment of raising the bar, but everything depends on the next case. And since it was a statutory interpretation case that declined to address the constitutional level, Congress could amend the statute and neutralize it altogether. Krauthammer is writing in an aspirational mode... and defining "considerably" downward.

"It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position."

"I understand that supporters of Judge Sotomayor are claiming that she has been 'vindicated' by the fact that four dissenting judges in Ricci adopted something resembling the position she took when the case was before her. It's comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position. During the Bush years, when a divided Supreme Court would strike down this or that Bush anti-terrorism measure, some liberals were quick to declare the president 'lawless.' They did so despite the fact that there was little precedent on the subject, and such precedent as there was often supported the Bush administration's position. Fortunately, liberal commentators seems to be 'growing in office.'"

Quality snark from Power Line, which links to this Stuart Taylor piece explaining why, in fact, the 4 dissenting Justices were not on the same page as Sotomayor:

[E]ven Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base....

[W]hile Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

"This case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate the opposite belief: that personal experiences and

"This case sharpens our focus on Judge Sotomayor's troubling speeches and writings, which indicate the opposite belief: that personal experiences and political views should influence a judge's decision."

So said Senator Sessions (the ranking Republican on the Judiciary Committee.)

The linked article is mainly about how the Supreme Court's ruling in Ricci v. DeStefano isn't going to keep Sotomayor from getting confirmed. Yes, of course. But the interesting thing is what will be said about the judicial role as a consequence of the new case. It opens up the confirmation hearings for some interesting discussion of what we want from judges.

Sotomayor will take her seat of the Supreme Court. We all know that. What we don't know is what happens next. And these hearings should be about laying the groundwork for the next series of appointments and the next presidential election.

"Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race."

Justice Kennedy writes the 5-4 opinion in Ricci v. DeStefano:

The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action....

[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed... and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race....

[T]here is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.

Justice Scalia has a concurring opinion to note that it "merely postpones the evil day" when the Court will have to decide whether the disparate-impact provisions of Title VII violate the Equal Protection Clause:

[T]he disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles.

Scalia (who also joins the Kennedy opinion) writes for himself alone. Justice Alito also has a concurring opinion, and he is joined by the Chief Justice and Justices Scalia and Thomas. He criticizes the dissenting opinion for characterizing the City's decision not to cancel the test results as "open, honest, serious, and deliberative":

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 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 decisionmaking 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.

Finally, the dissenting opinion is written by Justice Ginsburg, and she's joined by Justices Stevens, Souter, and Breyer. She chides Alito for "equat[ing] political considerations with unlawful discrimination."

That political officials would have politics in mind is hardly extraordinary, and there are many ways in which a politician can attempt to win over a constituency — including a racial constituency — without engaging in unlawful discrimination....

But was it unlawful discrimination?

Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. Justice Alito, I recognize, would disagree. In his view, an employer’s action to avoid Title VII disparate-impact liability qualifies as a presumptively improper race-based employment decision. I reject that construction of Title VII. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment.

ADDED: This post incorrectly stated that the Chief Justice joined the Alito concurrence. Tom Goldstein observes:

Judge [sic] Alito’s concurring opinion comes much closer to an overt criticism of the rulings of the district court and court of appeals. I found it notable that the Chief Justice - who seems to place a priority on not interjecting the Court into political disputes unnecessarily - does not join the concurrence.

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge [sic] Souter, who she will replace.

Hot new Supreme Court cases.

Served up in real time, right now, right here.

UPDATE: "The Supreme Court has finished issuing rulings for the day, without releasing a decision in the Ricci cases — the New Haven firefighters job discrimination litigation. The Court will issue further rulings on Monday."

From today's decisions, there is Melendez-Diaz v. Massachusetts (PDF), a Confrontation Clause case, decided 5-4, with Justice Scalia writing the opinion joined by Stevens, Souter, Thomas, and Ginsburg. Kennedy dissents joined by Roberts, Breyer, and Alito.

Here, Scalia dispenses with pragmatic arguments against giving criminal defendants the right to cross-examine laboratory analysts who produce reports, used by the prosecution, certifying that a particular substance, seized from the defendant, was cocaine:

Defense attorneys and their clients will often stipulate to the nature of the substance in the ordinary drug case. It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any fashion.

Justice Kennedy says:

For the sake of ... negligible benefits, the Court threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal based on erratic, all-too-frequent instances when a particular laboratory technician, now invested by the Court’s new constitutional designation as the analyst,
simply does not or cannot appear.

AND: Here's a new Slate piece about the Ricci case, which is still pending:

As black, white, and Hispanic firefighters in New Haven brace for the Supreme Court's decision, they're keeping their heads down and doing their jobs. But they're also tired and apprehensive. Almost no matter what the court decides, the ruling will mean more hard feelings and strife. No one we talked to can really imagine a way to resolve fairly who will get the promotions—which have been frozen now for six years. In this city at this moment, it's hard to imagine what fair would possibly look like.

Also left for Monday: "the case on radio or TV broadcast of a documentary movie critical of presidential candidate Hillary Rodham Clinton (Citizens United v. Federal Election Commission, 08-205), and a test of state governments’ authority to investigate race discrimination in home mortgage lending (Cuomo v. Clearing House Association, 08-453)."

"Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon."

A unanimous 7th Circuit panel, consisting of Easterbrook, Bauer, and Posner, adhering to Supreme Court precedent, says that the 2d Amendment is not incorporated in the 14th Amendment and thus does not apply to the states. Easterbrook's opinion (PDF) — emphasizes federalism — the value of decentralized decisionmaking on the subject of gun rights:

One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government.

Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back—in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens....

Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law §10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety—whether guns deter or facilitate crime is an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)—but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people’s hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate....

Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”); Crist v. Bretz, 437 U.S. 28, 40–53 (1978) (Powell, J., dissenting) (arguing that only “fundamental” liberties Nos. 08-4241, 08-4243 & 08-4244 9 should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to “incorporate” the second amendment are for the Justices rather than a court of appeals.

The panel adheres to Supreme Court precedent, but it also lays out the federalism argument in clear bold terms for future consumption by the Supreme Court.

Do you think it is good for the rules about whether one must retreat before using deadly force or the choice of self-defense weapons and so forth to be subject to variation from state to state? What do you think the famous Brandeis quote — "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country" — in this context?

AND: See how this helps the Sotomayor nomination?

Sotomayor was labeled “anti-gun” by Gun Owners of America for refusing to extend to the states the U.S. Supreme Court’s 2008 decision overturning a Washington, D.C., handgun ban. The group said a January ruling by a three-judge panel that included Sotomayor displayed “pure judicial arrogance” for declining to throw out a New York state weapons law.

But Easterbrook and Posner — "two top conservatives on the federal bench" — are on the same side.

The San Francisco-based 9th U.S. Circuit Court of Appeals ruled this year that states are bound by the Second Amendment’s protection for an individual’s right to bear arms -- in contrast to the three-judge panel in New York that included Sotomayor....

Mark Tushnet, a law professor at Harvard University in Cambridge, Massachusetts, suggested it was the 9th Circuit approach that is “activist.”

“Judge Sotomayor’s position, and the apparent positions of Judges Posner and Easterbrook, is far more in the mainstream,” Tushnet said....

In a brief, unsigned opinion, [Sotomayor's 2d Circuit] panel said it lacked authority to overturn the ban because that is a matter for the Supreme Court. The high court has “the prerogative of overruling its own decisions,” the opinion said.

And that's exactly what the 7th Circuit said.

Ah, the gods of Supreme Court confirmation are smiling on Sonia Sotomayor. Now, I will place my bet that the white firefighters will lose Ricci v. DeStefano.

Jeffrey Rosen makes the case against Sonia Sotomayor.

The name we've heard bandied about the most may not be the best choice to replace David Souter:

She would be the first Hispanic Supreme Court justice, if you don't count Benjamin Cardozo. (She went to Catholic schools and would also be the sixth Catholic justice on the current Supreme Court if she is, in fact, Catholic, which isn't clear from her official biography.)

It fascinates me that practically no one dares to say too many Catholics. (Click that link, dammit.) If we're ever going to talk about group representation and diversity, we need to talk about the overrepresentation of Catholics. Catholics are 22% of the U.S. population. 6 is 66.6666% of 9.

On the other hand, we really can't suddenly start noticing all the Catholics just when a Hispanic name comes up for the first time. Who can estimate the destructive power of the resultant diversity vortex?

Back to Rosen:

Over the past few weeks, I've been talking to a range of people who have worked with her, nearly all of them former law clerks for other judges on the Second Circuit or former federal prosecutors in New York. Most are Democrats and all of them want President Obama to appoint a judicial star of the highest intellectual caliber who has the potential to change the direction of the court. Nearly all of them acknowledged that Sotomayor is a presumptive front-runner, but nearly none of them raved about her. They expressed questions about her temperament, her judicial craftsmanship, and most of all, her ability to provide an intellectual counterweight to the conservative justices, as well as a clear liberal alternative.

The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue." (During one argument, an elderly judicial colleague is said to have leaned over and said, "Will you please stop talking and let them talk?") Second Circuit judge Jose Cabranes, who would later become her colleague, put this point more charitably in a 1995 interview with The New York Times: "She is not intimidated or overwhelmed by the eminence or power or prestige of any party, or indeed of the media."

Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees. It's customary, for examples, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views. Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn't distinguish between substantive and trivial points, with petty editing suggestions--fixing typos and the like--rather than focusing on the core analytical issues.

Not that smart. That's what I hear in that passage. The classic putdown. (Click that link, dammit.)

Who are these unnamed former clerks? What brilliant star might they want to clear the path for?

The most controversial case in which Sotomayor participated is Ricci v. DeStefano, the explosive case involving affirmative action in the New Haven fire department, which is now being reviewed by the Supreme Court. A panel including Sotomayor ruled against the firefighters in a perfunctory unpublished opinion. This provoked Judge Cabranes, a fellow Clinton appointee, to object to the panel's opinion that contained "no reference whatsoever to the constitutional issues at the core of this case." (The extent of Sotomayor's involvement in the opinion itself is not publicly known.)

(Interesting parenthetical. The extent of Rosen's knowledge of Sotomayor's involvement is not known by me.)

Not all the former clerks for other judges I talked to were skeptical about Sotomayor. "I know the word on the street is that she's not the brainiest of people, but I didn't have that experience," said one former clerk for another judge. "She's an incredibly impressive person, she's not shy or apologetic about who she is, and that's great." This supporter praised Sotomayor for not being a wilting violet. "She commands attention, she's clearly in charge, she speaks her mind, she's funny, she's voluble, and she has ownership over the role in a very positive way," she said. "She's a fine Second Circuit judge--maybe not the smartest ever, but how often are Supreme Court nominees the smartest ever?"

Can you put a little more glue on that not-smart-enough label?

"It seems to me that if I say a whole system must be upset for me to win..."

"... I am saying that I cannot sit in the game, and that safer rules must be made to give me a chance. I repudiate that. If others are in there, deal me a hand and let me see what I can make of it."

John McWorter quotes Zora Neale Hurston and W.E.B. Du Bois — "I sit with Shakespeare and he winces not" — to side with the plaintiffs in Ricci v. DeStefano:

[T]he International Association of Professional Black Firefighters tells us, "Cognitive examinations have an adverse effect upon blacks and other minorities." Du Bois crowed, "Fifty years ago the ability of Negro students in any appreciable numbers to master a modern college course would have been difficult to prove," and proudly documents 2,500 black college graduates. Imagine Du Bois listening to a rep from the black firefighters' association now sneering that the promotion test merely measures "the ability to read and retain"--i.e. engage in higher-level thinking processes! O tempora, o mores.

This will not do: People like Du Bois did not dedicate their lives to paving the way for black people to be exempt from tests. Sure, the tests may not correlate perfectly with firefighters' duties. But which falls more into the spirit of black uplift that you could explain to a foreigner in less than three minutes: teaching black candidates how to show what they are made of despite obstacles, or banning a test of mental agility as inappropriate to impose on black candidates?

Was the city required to take race into account and not to take race into account?

Adam Liptak summarizes yesterday's Supreme Court argument in Ricci v. DeStefano, an important affirmative action case:

The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”

Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.

The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.

“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”...

The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”...

Chief Justice John G. Roberts Jr. [asked] the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”

Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.

Read the whole thing. This is genuinely a complicated problem, as the Breyer hypotheticals at the end of the article demonstrate.

"Chief Justice John Roberts Jr. questioned Meade skeptically..."

A line from a news article made me laugh.

But now, really, I must get serious and read the whole transcript of today's argument in Ricci v. DeStefano. Here's the PDF. I'll have something more soon.

Jeffrey Rosen on the two important race cases that will be argued in the Supreme Court in the next few days.

Northwest Austin Utility District v. Holder and Ricci v. DeStefano:

[Northwest Austin Utility District v. Holder] challenges Congress's reauthorization of the Voting Rights Act in 2006... But... Congress didn't engage in a serious empirical comparison of voting patterns in the areas of the country that are and aren't covered by the Voting Rights Act. The civil rights establishment was intent on preserving the status quo, which has led to the election of some African Americans in the South at the expense of the Democratic party as a whole; and ... neither Republicans nor Democrats were willing to acknowledge the evidence suggesting that discriminatory barriers to ballot access today, unlike the '60s, seem to be very rare....

[Ricci v. DeStefano is] the most controversial affirmative action case of the term, involving the promotion of firefighters in New Haven. In 2003, the city administered a promotion test. The test was validated by independent experts, as federal law requires, to ensure that it focused on job-related skills rather than purely cognitive ones. But, after the test was administered, none of the top-scoring candidates for 15 positions turned out to be African American. (Fourteen were white, and one was Hispanic.) ... [T]he city refused to certify the exam and promoted no one. The city was then sued by 19 white firefighters (and one Hispanic) led by Frank Ricci, a sympathetic 34-year-old white man. Ricci, who is dyslexic, spent more than $1,000 buying the study guides recommended by the city and paying an acquaintance to record them as audiotapes, which he listened to as he drove to and from work.

The Ricci case is a nightmare for moderate liberal supporters of affirmative action, because it presents the least sympathetic facts imaginable. The Supreme Court has said repeatedly that affirmative action is most troubling when its burdens are concentrated on a few innocent white people rather than being widely dispersed among a large group of white and black applicants....

If the Supreme Court strikes down part of the Voting Rights Act and the New Haven affirmative action program, [it] would force Obama to articulate a moderate, middle-of-the-road position on race that is rooted in empirical evidence rather than ideology....

With all the other problems facing the country--from the economy to the war on terrorism--Obama has no incentive to take on liberal racialists who believe we've made little progress on race since the 1960s or conservative color-blind partisans who insist that anti-discrimination laws are no longer necessary. But everything in Obama's background suggests that he has the inclination and ability to help the country transcend the extremes that have defined our racial politics for too long.

I added the boldface.