Submitted to a Candid World
Archive for June 2009
National Review, Desperate to Spin Ricci, Gets It All Wrong
In the wake of the Supreme Court’s resolution of Ricci v. DeStefano – the Court’s highly anticipated, highly controversial, and highly complex “season finale” – the most conservative elements of the GOP seem desperate to spin the case as a stunning rebuke of Judge Sotomayor, which it plainly is not (thanks, Rebecca). But even in a crowded field, the National Review’s “Reckoning with Ricci” stands out for its disingenuous oversimplification of both the facts and the law.
First, one has to question whether Ricci is, in fact, a “model of judicial restraint.” Although the case did “le[ave] for another day the core constitutional question of whether the Civil Rights Act’s ‘disparate impact’ provisions [. . .] are valid under the Fourteenth Amendment’s equal-protection clause,” Justice Scalia, the conservative poster boy against “judicial activism,” would have reached and struck down those core provisions.
Further, though the Court did not reach the constitutional question, it did essentially gut the disparate impact provisions of the Civil Rights Act, a frustrating mockery of “restraint” that’s become a hallmark of the Roberts Court. Notwithstanding NRO’s attempts to rhetorically frame disparate impact as a judicial invention, Congress and a Republican president wrote the disparate impact theory of discrimination into the U.S. Code. I admit that the statute does “put employers in a pincer,” but it’s hardly for the Supreme Court, especially under conservative theories of jurisprudence, to solve the conundrum by writing affirmative defenses into the statute. Nevertheless, that’s exactly what Kennedy does on page 38.
It is this novelty – for better or worse – that makes the fact of Judge Sotomayor’s reversal not just understandable, but meaningless as far as the larger debate of her own “restraint.” When the Supreme Court so thoroughly rewrites the scope of existing law, a reversal of the lower court literally provides no new information. The Justices understood this fact: one searches the majority and dissenting opinions in vain for what NRO describes, without citation, as a stern rebuke of the Second Circuit. To the contrary, Justice Kennedy “almost seemingly goes out of his way not to criticize the decision below.” Just so: if hard facts make bad law, hard facts and new law make for even worse grandstanding.
In Florida, a Fight for the GOP’s Future Carries Risks for the Middle-Left
By most estimates, the GOP will hold on to Mel Martinez’s Florida Senate seat in 2010. Who will take that seat, though, is another question entirely. Despite momentum, popularity, and a long career in Florida’s service, incumbent governor Charlie Crist is no longer a lock. While Crist holds on to a lead for what now looks to be an interesting primary, he’s bleeding endorsements on the far right, while Rubio benefits from a small swell of popular support from conservative ideologues.
To listen to the Daily Kos, this is good news, presumably because Crist is more of a threat at the national level than Rubio. I’m not so sure.
Rubio – a young, loquacious man with a compelling life story – plays the moderate fairly well, keeping strategically quiet on hot-button issues like abortion & gay marriage. But this masks a very far-far-right persona. Rubio is a “tea partier” –
– with thinly veiled hostility towards the First Amendment (watch this video after minute 6). He voted to roll back keystone environmental protections in Florida, would have required women seeking abortions to view and pay for pre-abortion ultrasounds, and thinks that the “situation in Iran” would be a lot easier, if only the population were armed. In short, he’s an inveterate culture warrior who, on casual inspection, could appeal to moderate voters unaware of his actual record.
I remain deeply skeptical of the theory that the Republicans lost in ’08 because they weren’t “conservative enough.” It’s a modified form of the “No True Scotsman” fallacy, and completely unsupported by polling data (Rasmussen aside). But if anyone can construct a reality in which that theory somehow makes sense, it’s Rubio.
Real Sexism Against the Obamas: Where are the PUMAs When You Need Them?
Michelle Obama is using her position to do real good for the world, which RedState doesn’t like one bit:
[Michelle Obama] is an angry, arrogant, martinet that [sic] isn’t aware that “first lady” is an honorary title that has no proper, Constitutional role and is not an elected position with legal, legitimate powers of its own
Now, don’t misunderstand me here. I am neither saying that wives are unimportant nor that a first lady should hide her light under a bushel for the entire time she is in the White House. But a first lady, Michelle, does not direct policy, nor serve as an official advisor in government, nor have “deliverables” to promulgate, nor have much of a role with czars and “advisory boards.” That, little lady, is for the actually, legally empowered, officials.
To put it simply, dear, you ain’t no official. [. . .]
Chillax, honeypie. Read a magazine, watch the kids, and leave the policy to the real officials, will ya?
Presumably, RedState also objects to the incredible extra-constitutional power wielded by the White House Chief of Staff, the press secretary, the director of communications, and don’t even get me started on the deputies. They “ain’t no” officials!!
Given the PUMA’s apparent hatred of all sexism, everywhere, one can’t help but think that their rejoinder will be swift, and deadly. Any day now, once they finish indulging in far-far-right fantasies about Bill Ayers being the real author of Obama’s biography (because what if he is!).
Right Already Wrongly Condemning Sotomayor Over Ricci
Nor is the media helping: CNN’s cover image for the case, depicted to the right, sets up the right’s narrative: if Sotomayor couldn’t get Ricci right, how can we confirm her? Just ask Newt Gingrich:
The senate will have to review supreme court rejection of judge sotomayor’s reasoning in ricci case of discrimination against fire fighters
Thanks, Newt. Of course, this line of attack is hopelessly flawed. Kennedy’s opinion for the majority in Ricci essentially rewrites Title VII, turning it from an expressly remedial statute into one that prefers existing discrimination over good-faith attempts to build a more just society. The devil you know, I guess, but Sotomayor could hardly be expected to diverge from existing law in an attempt to predict whatever novel theory Kennedy will fabricate on certiorari.
Further, if the “gold standard” for Supreme Court justices is agreeing with settled law, then, by that logic, Roberts and Alito should never have been confirmed, given their known hostility to Roe. And, lest we forget, Sotomayor is a replacement for Souter, who voted, with 3 other justices, to affirm her opinion. No, Sotomayor isn’t a conservative, but was she supposed to be? McCain lost: deal.
In any event, here’s what I’ll be singing for the rest of the day:
Well they passed a law in ’64, to give those who ain’t got a little more. But it only goes so far…
Supreme Court Rules in Ricci, Limiting Title VII’s Antidiscrimination Provisions
Breaking: by a vote of 5 to 4, split on political lines, with Justice Kennedy writing the majority opinion, the Supreme Court ruled in Ricci v. DeStefano that New Haven’s attempts to comply with Title VII themselves violated Title VII. Read the opinion here.
Fallout
Political reaction is likely to focus on (1) the sympathetic nature of the plaintiffs, or (2) the fact that the case reversed an opinion in which Judge Sotomayor participated. But if we’re to listen to Rush Limbaugh, the first point shouldn’t matter (whither “empathy”?), and the second will be given more attention than it deserves.
If the Supreme Court had penned a decision that sternly rebuked the lower courts for being flat-out wrong, Judge Sotomayor would deserve some of the criticism she’ll inevitably receive, from pundits or conservative senators, over this case. But Ricci was a notoriously hard case and, in approving the district court’s decision, Sotomayor was doing nothing more than following established law. The Supreme Court resolved this case, eseentially, by relying on off-topic authority to read out of Title VII the congressional ban on disparate impact discrimination (@ 75-77). Judge Sotomayor can hardly be blamed for failing to read Justice Kennedy’s mind.
Analysis of the case follows below the line.
Defending Marriage, with Acts
Over the past week, we’ve been privileged to witness the conservative reaction to governor Mark Sanford’s infidelity, from the disappointed to the insane. Now, from “New Majority,” finally, we get the sensible acknowledgement that treating “family values” as a simple buzzword might be oversimplifying the issue. True “values” gather meaning from a diversity of experience, not from the words of conservative hopefuls:
I no longer believe that there is any single formula for successful marriage. Contra Tolstoy, I would go so far to assert that unhappy families are all alike; every happy family is happy in its own way. [. . .]
But maybe the one quality that fans the initial spark into a steady pilot light is this: An overwhelming determination never to hurt the other person. In otherwords, whatever pleasure a certain action might grant you, you could not possibly bear the pain it would cause your wife or husband. You would rather scald your own hand than see the other’s scalded. You would throw him or her the last life preserver rather than keep it for yourself. It’s that basic. And it’s, of course, mutual.
With this realization should come the acknowledgment that different paths towards that same happiness should be lauded, not frowned upon. If it wasn’t clear before, it should be painfully obvious today that the far, far-right does not have, nor has it ever had, a monopoly on “family values.”
On that note: a happy if belated Pride Weekend to everyone, and especially the many, many gay couples who, by their acts, define and “defend” marriage and marital love daily.
Short Note: Glenn Beck is Probably the Best Reason to Have a Twitter Account
Otherwise you’d miss out on gold like this tweet:
If you have read Common Sense, keep it with you. PASS IT ON! Listen to that still small voice. You will find like minds everywhere.FIND THEM
Which one is it, Glenn?! Keep it with me, or pass it on!? Pick a side, we’re at war!
Plus, this once-in-a-lifetime candid admission:
Many are too afraid to say something out loud. BUT MANY are feeling it. GOP&DEMS.Make others comfortable.speak w/o guile. Hard2do I know.
It IS hard not to lie! At least he understands.
We’ll return with substantive coverage of things that matter tomorrow.
Obama Considering Reviving Indefinite Detention: Softening the Blow
Late yesterday news broke that President Obama is considering re-asserting an executive right to detain certain terror suspects indefinitely, without charge. Although my peers on the left are already treating this as news that Obama has broken a campaign promise, let’s remember three things: first, and foremost, Obama has not yet issued any executive order to this effect. No promise is broken, until it’s broken.
Second, and more importantly, the President of the United States no longer has the lawful authority to detain any Guantanamo inmate indefinitely, without recourse to the federal court system. That ship sailed late last year when the Supreme Court decided Boumediene v. Bush, 553 U.S. ___ (2008), which clearly extended the writ of habeas corpus to detainees sited at Guantanamo and, indeed, any similar future facility.
Nor does the President contest this conclusion. Indeed, while Dick Cheney fought it, and Justice Scalia characterized it as inaugurating America’s downfall (“The Nation will live to regret what the Court has done today”), Obama embraced explicitly the conclusion by executive order:
§ 2(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
Comparisons between Obama and the Bush administration, then, are overblown: any “indefinite definition” under the Obama administration would necessarily be subject to habeas relief. That is change, even if it’s imperfect.
Finally, note the administration’s stated reason for considering indefinite detention of some (key word!) terror suspects: despite Obama’s preference for criminal trials over detention & habeas relief (a thoroughly realistic option), some current detainees literally cannot be tried. Why? Because they were tortured, rendering evidence of their guilt inadmissible. Great. Just great.
The story of Obama’s first 200 days is the story of his attempt to escape from the sins of our previous President. Sadly, that monolithic task continues.
Update: Mike’s take on this subject is interesting, but I think misses the nuance.
“Tea Party” Protests and Textbook First Amendment Law
Did you know that all forms of taxation are basically socialism? It’s true: I learned it at the “tax day tea parties” last April 15th. If you missed them the first time around, though, don’t worry: America is apparently due for another wave of hilarity as “July 4th tea parties” crop up all over the country.
Except in Duluth, Georgia, a suburb of Atlanta.
It’s true. Gwinnett Place Mall, a Simon mall, has revoked the tea partiers’ permission to use mall facilities for their demonstration, leaving them without an alternate venue and forcing them to cancel the event. Naturally, despite the fact that Simon prohibits all political demonstrations on their properties, anywhere, and with apparent indifference to the actual meaning of the term, WorldNetDaily is claiming “censorship,” and blaming President Obama.
Set aside the obvious point, that a (1) content neutral decision by a (2) private actor can never reasonably be called “censorship,” and WND’s position is still ridiculous. Owners have an inherent right to circumscribe the speech of the general public while on their property: content-neutral policies restricting free speech on private property have been plainly constitutional since 1972, see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), absent state law to the contrary. Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980). Property owners have a right “not to speak,” or let their guests presume speak for them, a concern that’s only magnified by the historic disruptiveness of “tea party” protests (see above, right). I thought conservatives were for property rights?
But good news everyone! The tea party cancellation has precipitated a boycott of all Simon properties by the far-far-far-right, which should make every mall in Atlanta a nicer place to be for a good long while. Hurray!!
Affirmative Action, What to Expect from Ricci, and “Judicial Activism”
On Monday, the Supreme Court will issue its ruling in Ricci et al v. DeStefano, one of the most complex and (naturally) controversial decisions of the term. The opinion will (likely) have far-ranging consequences for affirmative action – which we already know Justice Roberts hates [1] – and the difficulty, if not the actuality, of Justice Sotomayor’s confirmation. Because we’re here to help, we’ll attempt to break it down. For more detailed brief-by-brief analysis, your source, as always, is ScotusWiki.
The Facts
In 2003 the city of New Haven, Connecticut, prepared to promote firefights to lieutenant and captain grades based on service and merit. To partially assess performance, the city instituted a written qualifying exam, enlisting the help of a consulting agency to ensure the test was fair. All firefighters took the test but, after results came back, no African-Americans and only 2 Latinos passed, while all white firefights excelled. Facing the very real prospect of civil liability if accepted the results, New Haven instead set it aside. As a consequence, no promotions were issued, even for the firefighters who passed and were thus “entitled” to promotions.
One of the parties injured by this decision was Frank Ricci. Basically the Platonic form of the “sympathetic plaintiff,” Ricci is a hard-working firefighter family man who suffers from dyslexia and, despite this impairment, passed the exam with flying colors. Arguing that the city’s policy constituted reverse-discrimination – impairing the rights of white firefighters to stave off a lawsuit by black firefights – Ricci sued. He lost at the trial level and, in a curiously perfunctory opinion joined by Judge Sotomayor, the Second Circuit affirmed.
The Law
Title VII of the Civil Rights Act of 1964 forbids employment discrimination, including the use of discriminatory ability testing, [2] unless the test is not “designed, intended, or used to discriminate because of race.” [3] The Title goes on to prohibit the use of employment practices to correct for racial imbalances, [4] including altering test scores to favor races or other protected classes. [5].
However, established law also forbids the use of practices that discriminate by virtue of having a disparate impact on protected classes. Although the Fourteenth Amendment does not so provide on its own force, [6] Title VII forbids employment practices creating a disparate (e.g., racial) impact unless “the challenged practice is job related for the position in question and consistent with business necessity.” [7]
Independently, the Equal Protection Clause forbids the use of race-conscious policies to engage in racial “balancing” for a purpose other than diversity in an academic setting. [8] It also forbids non-job related employment tests that build in a “headwind” against minority applicants, although this rule of law is largely superseded and incorporated into Title VII. [9]
The Problem
As you can probably see, Title VII as currently drafted functions as a ripsaw for the defendants in this case (the city). Quite literally, they were damned if they did accept the test results, because it’s hard to justify an academic test as a “business necessity”; and they’re damned because they didn’t, since once the results are in, ignoring them looks like remedial race policy, or “altering” test scores by setting them aside. The case literally puts Title VII at war with itself, while simultaneously implicating Equal Protection Clause concerns. The question for the Supreme Court is whether to resolve the case on the statute, and choose which of the 1964 Congress’ interests to vindicate; use Equal Protection Clause values to inform the construction of the statute (as in, construe the statute one way or another to avoid a constitutional question); or look to a broader ruling invalidating or upholding the city’s conduct on the Equal Protection Clause alone. For more on the last option, Volokh has a good take on possible constitutional grounds.
The Politics
This case is heavily statutory. Accordingly, it will be hard to call any outcome “activist,” one way or another. On that note, Ramesh Ponnuru is right, although not for the reasons he states (and don’t get me started on his interpretation of the Voting Rights Act case, in which he treats the Fifteenth Amendment’s enforcement clause as essentially useless surplusage… moron). It would, however, be bad judicial policy, and “activist” in some way, to take this incredibly difficult case as an opportunity to expound an authoritative constitutional rule on affirmative action, because the case can be decided in so many narrower-but-still dispositive ways. And on the “empathy” front, let’s remember that while Frank Ricci is an incredibly sympathetic guy, he’s not the only player in this drama.
Ricci should be an opportunity for Justice Roberts’ allegedly minimalist instincts to truly shine, as they did in the Voting Rights Act case. What employers need is some certainty on how to comply with Title VII and fight discrimination even where it arises only accidentally. The case need not present, and thus the Court should not resolve, the fundamental constitutional issue, and it certainly should not completely de-fang disparate impact analysis. One thing, at least, is for sure: we’ve probably seen the last of advancement exams for jobs that primarily take place in the field.
Footnotes follow, below the line.
