Monday, June 29, 2009

Empathy, Activism, and Consipracy

As a liberal (debate the small "l", if you must), I'm happy with the outcome of the case. I empathize with the firefighters who passed their exam but weren't promoted because they weren't the right color. But anyway, all I'm saying here is that if I were a conservative and didn't want Sotomayor confirmed, I'd want this one particular case decided this way. And I'd want it decided just before the Supreme Court session ends so that it will be the most recent case during her confirmation hearings. That way I could loudly make the (somewhat circular) argument that she's not fit to replace the Bush appointee who voted to uphold her decision because the current Supreme Court overall disagreed with her 5-4.

I'm happy with the ruling, though, and am glad that Scalia, Roberts, and Thomas took into consideration the unfair treatment of the firefighters instead of just heartlessly and rigidly applying the law.


Vercingetorix said...

Well, some would say just the opposite – that they rigidly applied the Title VII disparate treatment rules despite the city's "good intentions". I agree that the case was decided correctly, but it's a bit more complicated than the simple story line both sides like to spout. (And, actually, that's why Sotomayer's original decision was so weird.)

The city (and the business lobby) wanted SCOTUS to rule the other way because they are afraid of disparate results liability – the fact that they can be sued for a process (like the firefighter test) that results in too few of one racial group being promoted, even if the promotion process didn't directly discriminate and they didn't intend those results. So the city (and the business lobby) wanted to be able to protect themselves from that liability by directly discriminating against white firemen. And they argued that the "good intentions" of escaping the disparate results liability should shield them from the Title VII disparate treatment rules that would otherwise apply.

So, all that being said, I feel for the city (and business large and small) because they are in a bit of a bind with the existing laws. But that said, you can't just ignore the process you put in place and use race-based criteria after the fact.....

Mithridates said...

Right. Some would say just the opposite. And I don't pretend that my brief post is the final answer. I just think the whole "we don't empathize, we just rigidly interpret the law, unlike those activist judges who legislate from the bench" argument is bullshit. Judges should - and they all do - empathize. Perhaps judges should try not to let their politics interfere with their interpretation of the law - but they all play politics to some extent.

There's always empathy. There's always politics. From all judges. For better or worse.

From the little I know about Sotomayor, she's not my perfect judge, but the little I know is based on the few remarks and decisions out of her whole career that her opponents have brought to the fore to make their case. In a perfect world I'd want the wisest judge available, end of story. But in this imperfect world, I just want a lefty to counterbalance a court that's too right for my taste.

Phutatorius said...

It's a LOT more complicated than the simple story line both sides like to spout — and that's why I'm glad these judges are deciding questions like this, and not frickin' Rush Limbaugh, who said yesterday that the Supreme Court had decided Sonia Sotomayor was a racist. Or the woman I heard on the radio triumphantly declaring that advancement in the safety-important profession of firefighting would no longer be subordinated to the irrelevant considerations of identity politics. Uh, no: it'll just be determined by performance on a multiple-choice test. I'm frickin' awesome at multiple choice tests, and I (a) am the last person you'd want to save you from a burning building, and (b) can't get a goddam fucking job to save my life right now. So that's what I think about the testing these people are canonizing, which has nothing to do with anything, I grant you.

I've always wondered whether DOJ/OCR had the authority to promulgate disparate impact regs to effectuate the ends of a statute that requires intentional discrimination. Scalia's been itching to get to that question, and the next case might bring it.

It's surely true that disparate impact is circumstantial evidence of discrimination, and that under the present civil rights laws in employment, a person who suffers an adverse employment action when "similarly situated" persons of another race don't has a prima facie case of intentional discrimination, which the employer is entitled to rebut by showing a legitimate nondiscriminatory reason for the action. The regs aren't too far afield of these bedrock principles in the case law, providing as they do that tests that cause disparate impacts can nonetheless be sustainable on a certain affirmative showing (albeit one more substantial, I think, than legitimate nondiscriminatory basis) by the employer. But they do seem to be one or more steps beyond what folks were really after when they settled on disparate impact theories of liability — which was to "smoke out" illegitimate racial considerations that no one would dare, in the post-Civil Rights Act era, to lay out in the open.

So while we can't forget the hundreds of "facially neutral" gestures that Southern whites used to keep blacks from voting and working, it's maybe a bit too far over to the other side to throw out test results on the naked showing of disparate impact, on some vague theory of cultural bias.

Let's hope the Court is able and inclined to do that bit of delicate parsing in the cases to come. For my part, I think a Sotomayor can help with that. Which probably makes me a racist.

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