Strictly Stasi
by Anthony Stasi
Jul 07, 2009 | 2334 views | 0 0 comments | 57 57 recommendations | email to a friend | print
The much-talked about Supreme Court case in New Haven, Connecticut, where test scores that could have lead to promotions for city firefighters, has become center stage in the judge's senate confirmation hearings - and rightfully so. The president, to his credit, chose a jurist with a history of making decisions that can now be analyzed. The last two presidents purposely went out their way to find nominees that had little past to analyze.

Of Sotomayor's almost 4,000 decisions and opinions, this case stands out because it is recent and speaks to her history of race-based remarks. One-hundred-and-eighteen firefighters in New Haven studied for a test that required scoring in the highest percentage in order to be promoted. It must have been a difficult test because only 19 people earned high enough scores (17 whites and 2 Hispanics). Firefighter exams are usually very difficult. New York firefighters spend months and months studying in order to be in a position to be promoted.

When the city of New Haven discarded the scores (before there was any kind of protest about the results), it showed a government frightened of lawsuits. Governments cannot operate when they are afraid or scared - just ask politicians in the Middle East how well that works.

Justice Sotomayor ruled that this was not discrimination against the firefighters that scored well. Title VII of the federal Civil Rights Act states that governments need to consider the results in hiring and promotion practices. But one could arguable say that it was Sotomayor's decision that violates Title VII. On the Equal Employment Opportunity Commission (EEOC) website, as the very first bullet point to describe the law, it reads: "Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits employment discrimination based on race, color, religion, sex, or national origin." We're the firefighters not discriminated against on the basis of their race? And remember that - most importantly - the residents of New Haven, regardless of color or race, need the best fire department they can get.

There a certain importance to having a civil service agency that understands the population it serves. Meaning, if you have a majority African American population, it certainly does not hurt to have people serving them that understand their lives. Former Republican Governor Bill Weld of Massachusetts tried to encourage minority representation in certain police precincts in the Boston area.

Encouraging and wanting a certain outcome is well within the ethics of government. Punishing a group that has played by the rules of which they did not set up in the first place, is not really good government...nor is it good for public safety. If you're being dragged to safety in a burning building, do you really care what the guy saving you looks like?

Here is how this act of the city of New Haven could have been acceptable: The city should have told these firefighters before they began this journey that there was a possibility that their scores would be thrown out for reasons having nothing to do with performance. It sounds silly, but what is wrong with telling them the truth in advance?

Title VII allows for a government to "...engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action."

So basically, if the government is worried it might get sued, all bets are off when it comes to what might or might not be fair. So you see that there was wiggle room for Sotomayor's original decision, even though it's slightly stretchy.

Sotomayor has written many opinions and this is but one of her decisions. She is certainly qualified to hold this post. Past decisions are not always a marker in determining how a judge will perform at the Supreme Court either. After all, Justices Blackmun and Souter certainly did not turn out to be very predictable on the bench.

In the end, judges should not be forcing outcomes that they wish to see at the expense of interpreting the law as it is written. If an individual wants to make legislation, he needs to put his name on a ballot. But the job of a judge is not necessarily that of a legislator.

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