Rule of Law:1, Empathy:0 – Supremes reverse Sotomayor

Breaking News: the U.S. Supreme Court just reversed Sotomayor (Monday, 29 June 8AM MDT)

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

This decision must be considered a victory for the rule of law over “preferred outcome” jurisprudence.  The ruling majority in the case, Ricci vs. DeStefano, upheld the rights of New Haven firefighters under Title VII of the Civil Rights Act of 1964, which “prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e-2(a)(1).”

The city of New Haven, CT had refused to certify the results of an examination given to firefighters seeking to qualify for promotion once it became apparent that none of the black candidates qualified, “based on the statistical racial disparity” and responding to public pressure.  The Supreme Court found

There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” (p.33)

The City, moreover, turned a blind eye to evidence that supported the exams’ validity. (p.33)

The majority ruling was clear in upholding the rights of ALL Americans to equal treatment under the law:

The record in this litigation documents a process that, at the outset, had the potential to produce a testing procedure that was true to the promise of Title VII: No individual should face workplace discrimination based on race. Respondents thought about promotion qualifications and relevant experience in neutral ways. They were careful to ensure broad racial participation in the design of the test itself and its administration. As we have discussed at length, the process was open and fair. (p.37)

The problem, of course, is that after the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. (p.38)

Racial discrimination is abhorrent to the principles expressed so eloquently in the 4th of July 1776 American Declaration of Independence (which must be seen as the philosophical source of our system of laws) and enshrined in the U.S. Constitution: that ALL men are created equal, and deserve equal treatment – as individuals, not categories or representatives of groups – before the law.  Supreme Court Justice Antonin Scalia makes this point explicit in his concurring decision:

“[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995)  (p.40)

However, some ‘justices’ apparently don’t see things this way, viewing people as mere manifestations of group (race, class, gender, etc.) identity, to be advanced (or denied advancement) due to their identification or affiliation, based on the sympathies (or “empathy“) of judges interpreting the law.

 The logic (or lack thereof) in Justice Ruth Bader Ginsburg’s dissent is illuminating:

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. (p.55)

Justice Ginsburg’s stance – that “white firefighters” have no “vested right” in fair and equal application of the law and due process in applying for promotion, only because no one else received preference instead – is ludicrous.  Moreover, her position damages not only the “white firefighters” (and Hispanics) denied promotion as a direct result, but ALL firefighters and citizens of New Haven.  In the six years since the city rejected the results, NO firefighters have been promoted to the rank of Lieutenant or Captain AT ALL.  This cannot be of benefit to the firefighters (even those not making the cut) or anyone in the city.  Typical of preference-based treatment, everybody suffers.

Justice Samuel Alito’s opinion concurring with the majority decision – which also exposes the undue influence exerted by political allies of New Haven Mayor DeStefano in throwing out the test results – provides perhaps the best summary of the underlying principles of the case:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law-of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.  (p.54, emphasis added)

Whether in the Supreme Court of the United States, or in Colorado’s Supreme Court: citizens have a right to demand evenhanded enforcement of the law.  The “Mullarkey Majority” in Colorado has repeatedly demonstrated incapacity or unwillingness to live up to this standard.  We demand better; vote “NO” on retaining the unjust justices of the Mullarkey Court (Justices Bender, Martinez, Rice, and Chief Justice Mullarkey) in 2010.  Let’s Clear The Bench, Colorado!

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