Sonia Sotomayor - Racist?

[cherdanno]

I think 95% of voters do not pay any attention to such questions. Most of those who do will immediately side with the party they were already backing. Republican supporters will read the Limbaugh comment and think it looks racist, and not look further. Democratic supporters will take notice that the quote may be taken out of context and immediately accept that it is. If the situation were the other way around it would be exactly the same.

 

The few objective readers who are capable of forming their own opinion cannot be charmed by either party and its politics. (of course they can prefer one party over the other, that is somethiing else)

That sounds nice in theory but has little to do with the reality of American politics as cherdanno perceives it.

1. The percentage of voters identifying as Republicans is decreasing. Republicans have to appeal to more than just them.

2. Limbaugh is highly unpopular, except among the self-identified Republicans. Any time Limbaugh's face appears on CNN as the Republican spokesperson, instead of someone who actually makes sense, is a bad time for the Republican party.

3. Equating independents with those "who are capable of forming their own opinion" is a bold statement given polls consistently show self-identified independents don't follow news as closely as others, and are in general less well informed.

[jonottawa]

I disagree with you all. The statement was clearly racist and you'd have to be pretty clueless to miss that. Although, to be fair, I would hope that a wise white man with the richness of my experiences would more often than not reach a better conclusion than a bunch of folks who haven’t lived that life.

 

As for the political suicide question, who cares? Repugs are evil. Dems are corrupt, self-serving and unprincipled. Yes, one's worse than the other but tweedle dum, tweedle dee, etc.

 

Now let's get back to discussing important issues like Rafa's tragic loss at Roland Garros.

[hrothgar]

The plain statement that the decision "affected everyone equally" is nonsense, and specious.  It's like a board being misaligned in one room.  At one table, a pair plays 2S making 2 on normal bidding and defense, and at the other table, a pair goes for 1400 against a part-score.  But the board gets thrown out, because the same team was N-S in both rooms.  Throwing out the board didn't "affect everyone equally" - it was a great break for the team that did poorly.  That doesn't mean it was the wrong decision.  It means exactly what it says - It didn't "affect everyone equally."

 

At its most basic level, its not "affecting everyone equally" is most obviously connected to how well people did.  However, also equally obviously, "how well people did" is correlated to race.  I didn't say, or imply, that for legal purposes the relevant class was "those who did well."  Also obvious is that the decision to not certify the results benefited minority applicants.  As it was intended to do.  As was the reason for the lawsuit. 

 

The relevant classification for legal purposes is race.  *A* relevant classification for parsing the quoted language is "those who did well" and "those who did not do well."  Those groups were not equally affected, and thus "all applicants" were not equally affected.

 

Thanks for the freelance critique of my "elementary mistakes" (though I'm not sure you should be "throwing around" such critiques).  I'm not a law professor; however, some pretty good ones were quite satisfied with my analyses.

So nice that you took the time to forward this to some law professors. Don't suppose that you'd you'd be willing to share the actual correspondence? The way in which one frames these sorts of discussions can have a dramatic impact on the opinons that get rendered...

 

As for your comments:

 

I think that you are overgeneralizing.

 

The original opinion does not state that that the decision would affect everyone equally. Rather, the opinion stated that the plaintiff's could not claim disparate impact "because the decision to disregard the test affected all applicants equally, regardless of race - all applicants will have to participate in a new test of selection process."

 

I don't think that the two constructions are equivilent; especially in the context of a discussion regarding disparate impact where equally effect has a very specific meaning.

[Lobowolf]

So nice that you took the time to forward this to some law professors. 

I was actually referring in general to the three years they were paid to critique my analysis. While I am still in contact with some of them, I don't impose upon them to opine on my internet debates. Sorry for the confusion.

 

 

 

The original opinion does not state that that the decision would affect everyone equally.

Yes, in fact it does. Almost verbatim. It actually says the decision (not to certify the test) DID (not would) affect everyone equally. Which is like saying the decision to throw out the board where one side goes for

-1400 in a partscore affects everyone equally, because they all have to play a replacement hand.

 

The statement would have more merit if the decision not to certify the test was made before the results were known, e.g. if, for instance, the split between the written and verbal aspects of the test was objected to earlier.

 

Here, however, it's not even a judgment call -- the decision not to certify the test was made BECAUSE it didn't affect everyone equally, regardless of race. It was made to benefit minority applicants in a zero-sum game (finite number of positions available).

 

That doesn't imply that it was the wrong decision. You're allowed to make choices that result in disparate impacts. As I believe you noted in one of your posts, for example, a test that resulted in a disparate impact could be certified and relied upon if it was job-related, and if there weren't a viable test that would result in a less discriminatory impact. Additionally, the defendants had the defense that they were attempting to comply with federal law.

 

The decision did not rely on the excerpt I quoted. The plaintiffs did not claim disparate impact, in the first place, and in the second place, that discussion was secondary to the fact that they did not have a legally protectable interest in the job, as doing well on the test (even scoring the highest on the test) was not a guarantee of being chosen for the position.

 

The case was flipped on its head from the typical claim in this case, which would have arisen if the test HAD been certified. The disparate impact on the minority applicants would have been a given, the defendants would claim (from the text of the decision, with a fair amount of supporting evidence) that it was a performance related test (i.e. there was a business necessity for using the test to determine to whom to give the jobs), and the discussion would have revolved around whether there was a less discriminatory alternative available.

 

But to support the decision, you don't have to support every soundbyte offered to bolster it. Obviously, the decision not to certify the test didn't affect everyone equally, and it was never intended to. It was intended to do the opposite.

[PassedOut]

I'm hoping not to read that she has recently paid some back taxes.

[Lobowolf]

I think there is some room for discussion about her actual decisions. The recent decision about the New Haven firemen seemed very dubious, especially given her previous record on discrimination related cases.

Indeed. Reversed by SCOTUS today on a 5-4 decision. Somewhat interestingly, the decision was written by Kennedy, probably the swing vote. It's short & sweet, but there's at least one concurrence (Scalia) and I'm sure at least one dissent. I'll be looking at all of them, but I haven't read anything but Kennedy's opinion yet.

[luke warm]

reference was made in an earlier post to "disparate impact" defined as "... an unnecessary discriminatory effect on a protected class caused by an employment practice or policy that appears to be nondiscriminatory"

 

then there's racism

1. a belief or doctrine that inherent differences among the various human races determine cultural or individual achievement, usually involving the idea that one's own race is superior and has the right to rule others.

2. a policy, system of government, etc., based upon or fostering such a doctrine; discrimination.

3. hatred or intolerance of another race or other races.

 

and discrimination

1. an act or instance of discriminating.

2. treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit: racial and religious intolerance and discrimination.

 

the only reference i could find to the phrase "discriminatory effect" used in the 'disparate impact' definition above is a part of federal law dealing with voting... in my mind, discrimination is not something that can only be done to a minority or "protected class" - any "treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit" is discriminatory, imo

[kenberg]

The decision naturally was based on law and the way the justices understand the law. I, and probably many others, come at it differently. How should a society function? How should a person be able to get ahead? How should an organization be run?

 

I have a Ph.D. In the early 60s, I took the "quals" (qualifying exams to move on towards thesis work). I took two language exams, French and German. Some people passed these exams, some failed. I prepared for these exams and passed. Those who failed either dropped out of the program or set out to learn more thoroughly.

 

New Haven wanted to promote some firefighters into leadership positions. Presumably such leaders should know something, including some matters that require study. They set up an exam, constructed by professionals and vetted by professionals. People put in varying effort into preparing for the exam. Some passed, some failed. To my mind, that should be it. Those who failed are free to work harder the next time an opportunity for promotion arises.

 

I cannot give a lecture on constitutional law but I see the Court's decision as being in line with common sense about how organizations should be run and how individuals should approach opportunity for advancement. I am sorry that four of the justices saw things differently.

[PassedOut]

New Haven wanted to promote some firefighters into leadership positions. Presumably such leaders should know something, including some matters that require study. They set up an exam, constructed by professionals and vetted by professionals. People put in varying effort into preparing for the exam. Some passed, some failed. To my mind, that should be it. Those who failed are free to work harder the next time an opportunity for promotion arises.

If the exam objectively ranked the leadership applicants, I certainly agree with you. But I don't know for sure that it did. If it had been obviously so, I doubt the decision would have been 5-4.

[cherdanno]

For those of you agreeing with SCOTUS here: do you agre with affirmative action in any other situation?

[kenberg]

New Haven wanted to promote some firefighters into leadership positions. Presumably such leaders should know something, including some matters that require study. They set up an exam, constructed by professionals and vetted by professionals. People put in varying effort into preparing for the exam. Some passed, some failed. To my mind, that should be it. Those who failed are free to work harder the next time an opportunity for promotion arises.

If the exam objectively ranked the leadership applicants, I certainly agree with you. But I don't know for sure that it did. If it had been obviously so, I doubt the decision would have been 5-4.

During my professional life I have constructed a great many exams. Even in retirement I serve as a vetter for some of the Ph.D. quals that we give. I recently caught a subtle error in an exam that is scheduled for August. We work hard at getting the exams "right" in all senses of "right". Still, there is always room for dispute and disputes occur. If the standard for acceptability of an exam is that no person, regardless of how crazy, can possibly find anything to gripe about, then basically we can no longer give exams.

 

Errors can happen. We have had very very few outright errors but sometimes we might regret the phrasing of a particular question when we see the issues that unexpectedly come up. Not often, but it happens.

 

But: As I understand it, no one claimed any specific deficiencies of any sort in the exam, except for the result that no African Americans received a passing score. Apparently the Civil Rights Law treats this as adequate reason, in and of itself, to challenge the exam. Or at least New Haven's lawyers thought it did.

 

Houses catch on fire. The people who come to put out the fire should be led by people who know what they are doing. While no selection process is unchallengeable, there should be some reason for the challenge that is based on the quality of the exam rather than on the race of the people who passed it. If any such reasons exist, I imagine we would have heard of them.

[kenberg]

For those of you agreeing with SCOTUS here: do you agre with affirmative action in any other situation?

I certainly support massive effort to make sure that this is a land of opportunity for every citizen. I do not mind in the least that some or many of these efforts are designed with the needs of a specific race, an ethnic group, a gender, what have you, in mind. In fact I believe that such focused effort should be made.

 

Such a general intent as expressed above leaves plenty of opportunity for disagreement over specifics. As with the current case.

[Lobowolf]

If the exam objectively ranked the leadership applicants, I certainly agree with you. But I don't know for sure that it did. If it had been obviously so, I doubt the decision would have been 5-4.

I don't doubt it at all.

[y66]

According to Nate Silver, in his essay Operation Gringo: Can the Republicans Sacrifice the Hispanic Vote and Win the White House?

 

Giving up on New Mexico, Nevada and Colorado is a feasible, and perhaps even wise, strategy. But if they don't thread the needle just perfectly, and they make it difficult for themselves to win back Florida, while putting Arizona and perhaps even Texas increasingly into play, their task will become nearly impossible.

[Lobowolf]

 

But: As I understand it, no one claimed any specific deficiencies of any sort in the exam

That'll be the next step. The decision not to certify the results was a preemptive move. Now things will proceed in the more traditional manner of these types of cases - the test results will be certified, and challenged by the underrepresented minorities. Because of the results, there will be a presumption of disparate impact, and then the burden of proof will shift to the city and the analysis will hinge on the business necessity of the test (i.e. how "job-related" it is). Based on the evidence presented in the original case, this should be an easy showing, which will shift the burden back to the (new) plaintiffs, who will have to show that alternatives which met the city's interest (the job-relatedness) would have less of an adverse impact. The whole case will hinge on this analysis, as everything else is pretty straightforward. Since the City didn't want to certify the test results in the first place, though, it's unclear how zealously they'll defend the test.

[Lobowolf]

For those of you agreeing with SCOTUS here: do you agre with affirmative action in any other situation?

I agree with it to remedy past discrimination by the entity in question (which is one case in which it's constitutionally permissible). For instance, if all promotions are based on seniority, and certain groups have less senority because they weren't hired until 1985.

 

I also don't mind class-based affirmative action, to some extent. With respect to, for instance, public university admissions. What happens with race-based affirmative action is that to some extent, race is used as a proxy for wealth or income (as evidenced by some of the arguments in its favor).

[cherdanno]

For those of you agreeing with SCOTUS here: do you agre with affirmative action in any other situation?

I agree with it to remedy past discrimination by the entity in question (which is one case in which it's constitutionally permissible). For instance, if all promotions are based on seniority, and certain groups have less senority because they weren't hired until 1985.

 

I also don't mind class-based affirmative action, to some extent. With respect to, for instance, public university admissions. What happens with race-based affirmative action is that to some extent, race is used as a proxy for wealth or income (as evidenced by some of the arguments in its favor).

So, say a high school in a diverse district has only white non-Hispanic teachers. Would you agree with the school looking specifically for Hispanic or Black teachers? Or is that unfair preference against white teachers with equal qualification?

[Lobowolf]

For those of you agreeing with SCOTUS here: do you agre with affirmative action in any other situation?

I agree with it to remedy past discrimination by the entity in question (which is one case in which it's constitutionally permissible). For instance, if all promotions are based on seniority, and certain groups have less senority because they weren't hired until 1985.

 

I also don't mind class-based affirmative action, to some extent. With respect to, for instance, public university admissions. What happens with race-based affirmative action is that to some extent, race is used as a proxy for wealth or income (as evidenced by some of the arguments in its favor).

So, say a high school in a diverse district has only white non-Hispanic teachers. Would you agree with the school looking specifically for Hispanic or Black teachers? Or is that unfair preference against white teachers with equal qualification?

If you mean as a hiring preference, then I'd be opposed to it. I'm not opposed to outreach/job fair type of stuff where you try to attract more applicants from underrepresented groups, or make them aware of opportunities, but I'm opposed to preferring one candidate to another based on race.

[cherdanno]

So you are even against affirmative action when it is in the employer's own interests to increase the diversity among its employee's? I.e. the employer cannot hire who is the most useful person in the job, but has to hire someone "most qualified" according to an abstract color-blind standard?

[Lobowolf]

Yes, I don't believe that the employer's desired racial makeup of the workforce as a whole is enough of a justification for racial discrimination against a particular applicant.

[luke warm]

affirmative action (wiki) - The terms affirmative action and positive action refer to policies that take race, ethnicity, or gender into consideration in an attempt to promote equal opportunity. The impetus towards affirmative action is twofold: to maximize diversity in all levels of society, along with its presumed benefits, and to redress perceived disadvantages due to overt, institutional, or involuntary discrimination. The principle of affirmative action stipulates --- to treat unequals as equals is to perpetuate inequality.

 

definition – noun

the encouragement of increased representation of women and minority-group members, esp. in employment.

 

my view is that anyone who is discriminated against on the basis of race, gender, age, & etc. should have protection against such discrimination under the law... to do otherwise belays the words "[...]We hold these truths to be self-evident: that all men are created equal [...]I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character[...]"

 

i was a junior in high school in jackson, ms in june of 1966 during dr. king's march... i put king at the top of my 'greatest americans who ever lived' list... it is a short list - 3 founding fathers and king

... I.e. the employer cannot hire who is the most useful person in the job, but has to hire someone "most qualified" according to an abstract color-blind standard?

i believe king lived and died for such a "color-blind standard" although "most qualified" should not be, and usually is not, the main criterion

[Lobowolf]

So you are even against affirmative action when it is in the employer's own interests to increase the diversity among its employee's? I.e. the employer cannot hire who is the most useful person in the job, but has to hire someone "most qualified" according to an abstract color-blind standard?

My turn.

 

Let's say a particular campus (UCLA, for example) would like to have a more diverse campus. And let's say that Asian-American students are "overrepresented" in the school's demographics. If two applicants are being considered for the last admissions spot, and an Asian-American student is regarded as slightly better than an African-American candiate by objective criteria (LSAT, grades), and even by color-blind subjective criteria (reading their essays without knowing the races of the applicants), and they grew up in the same socio-economic stratum and attended the same schools, would you favor a public school's being able to reject the Asian-American student solely on the basis of race, to create a more diverse campus?

[PassedOut]

If two applicants are being considered for the last admissions spot...

UCLA is almost full. Room for only one more.

[mike777]

Unfortunately this issue comes up when discussing how to divide up a fixed sized pie, rather than trying to grow the pie. Needless to say politics will override everything in who gets the last position.

 

I much rather increase supply rather than focus on demand.

 

Hope to see more ideas on how to grow the supply of education or number of jobs.

 

As for judges, there are numerous judgeships open that go unfilled for years. No doubt we need even more positions to handle the caseload.

[Lobowolf]

If two applicants are being considered for the last admissions spot...

UCLA is almost full. Room for only one more.

There's always a last one accepted, and a first one rejected.