Chris Matthews panel ignored Souter in hyping potential Ricci reversal
SUMMARY: Discussing a potential Supreme Court reversal of Sonia Sotomayor's position in Ricci v. DeStefano, Chris Matthews Show panelists did not note evidence that a reversal would not demonstrate that Sotomayor "got it wrong" in the view of Justice David Souter, whom she would replace.
During the May 31 edition of the NBC-syndicated Chris Matthews Show, host Chris Matthews asked whether the Senate Judiciary Committee can "smoothly go along" and "put[]" Supreme Court nominee Sonia Sotomayor "on the court" if the Supreme Court reverses her position in the 2nd Circuit Court of Appeals case Ricci v. DeStefano. New York Times writer Helene Cooper responded that if the Supreme Court reverses the Ricci decision, Sotomayor is "gonna look as if she got it wrong." However, neither Matthews, Cooper, nor any other panelist noted evidence that, even if a majority of justices on the Court -- which is dominated by conservatives -- voted to reverse, at least some members of the Court, in their questioning at oral argument, laid out the case for upholding the 2nd Circuit. Specifically, Justice David Souter, whom Sotomayor would replace, noted what he said was the "damned if you do, damned if you don't" position faced by the city of New Haven, Connecticut, and proposed an outcome consistent with the 2nd Circuit's decision.
As Media Matters for America has documented, in addition to the comments above, during oral argument, Souter also asked the lawyer representing the firefighters, "Why isn't the most reasonable reading of this set of facts a reading which is consistent with giving the city an opportunity, assuming good faith, to start again?" Moreover, according to a May 31 Washington Post article, "The lawyer who argued at the Supreme Court last month on behalf of the white firefighters ... found a receptive audience in the court's conservative justices but not among the liberals, including the justice Sotomayor would replace, David H. Souter, who is retiring."
The 2nd Circuit ruled that precedent in interpreting Title VII's employment discrimination prohibitions compelled the decision in the Ricci case. The city of New Haven has argued that it was, in the words of SCOTUSblog contributor and H&R partner Kevin Russell, "simply trying to avoid a violation of Title VII's disparate impact provision."
From the May 31 edition of the NBC-syndicated Chris Matthews Show:
COOPER: I think this is the one -- the sort of Achilles heel for this nomination. I mean, I think her silence, I mean, her not saying that much in her opinion and just letting that court case stand without explaining or wading into the constitutional issues that are raised by it. I think those are gonna hurt.
MARK WHITAKER (NBC News Washington bureau chief): But it also means there is no paper trail that she has to either defend or repudiate, and she's gonna have to address it, but she can really do that from scratch.
MATTHEWS: OK. Mark and Helene, what happens if the U.S. Supreme Court reverses her decision at the appellate level and say, "No, this was an unfair case where there was some reverse discrimination against these white firefighters? You're wrong." Can the Senate Judiciary Committee then smoothly go along and say, yeah, but we're putting you on the court having your decision reversed? This could well happen this time.
WHITAKER: Well, first of all, I think it's hard to have a huge debate about a case that's already decided by the Supreme Court. But again, I think, she's gonna have a chance to explain herself, and the fact that she didn't write an opinion in overturning -- or upholding the district court ruling means that it would just depend on how she does before the Senate in the confirmation hearing.
COOPER: But this puts her on the defensive. Because, if the Supreme Court does overturn her decision, as so many people think that they will, she's gonna look as if she got it wrong -- and that's gonna be sitting there, right there --
[crosstalk]
WHITAKER: Well, but she was a part of a three-judge panel that upheld it without saying why they did.
MATTHEWS: Well, let's get to the bigger question, and you get to get this first. People say she's gruff. There's all kinds of interesting terms. We're gonna know more about her personality when she goes up against the Republicans on that committee. OK, let's say she's gruff, OK? Is this on purpose, they want a strong, ramrod kind of personality on the liberal side of the court to take on the intellectual [Justice Antonin] Scalia?
This is not only laughable but wildly inaccurate.
But what would one expect from mmfa...an organization that loudly proclaimed over several articles that Breyer isn't a liberal justice.
I understand why you would cite that statistic...it fits neatly into your notion...but it's illogical and useless in the contention made by mmfa...and you.
I challenge you to back up that contention by naming the SC justices and labeling them as conservative or liberal in your opinion...fair enough?
It's ok with me if you want to continue with the worthless premise of presidential appointments...I just thought you might be interested in sharing your opinion to back up your contention.
If not...que sera sera.
I also think that if you're appointed by a republican, you're probably a good conservative in good party standing, and well known in said circles.
If you're appointed by a democrat, normally you're appointed through the process of vetting by the republicans, so as to not "rock the boat". In other words, I believe justices appointed by republicans are conservative, and that justices appointed by liberals are moderates.
What proof do you have that shows justices are more "liberal"? Because, they're not really.
I made a simple request that you don't care to expound on...I'll except the towel.
Conservate?...moderate?...blue heron?
It's not that shocking to believe is it?
hw was not a conservative president, just as his son was not a conservative president.
I have often wondered how you guys on the right rationalize your extreme hatred of policy making from the bench with your hypocrisy on the same subject.
Admit it, all that really matters to you guys is that a judge finds it plausible to administer religious ideology into his decision making. It's all about Abortion to you people.
You've dreamed up the judicial activism thing on my post.
List the SC judges that are conservative...that's the issue at hand...mmfa's contention that the SC is dominated by conservates.
It's pretty simple...there are just 9 of them...let's see what ya got.
This comment will be censored by MM because I am a Black conservative. MM must carry forward the lie that all minorities are liberals/radicals/etc.
So please spare us this idea that the court is not a Conservative court. Hopefully that won't always be the case. For Scalia is 73 and Kennedy is 72. Stevens is likely to soon retire, as he is 89, and Obama will likely nominate a Liberal even more to the left than Sotomayor to replace him, and Ginsburg's health isn't good and she's 76, so he'll likely get to replace her as well before his first term is up.
If he's re-elected for a second term, Obama will almost assuredly, to the absolute HORROR of the Right-Wingers in this country, be able to replace either or both Scalia and Kennedy, as well as the Liberal Breyer (who is 70). Then, thank God, the court will be Liberal for the next two decades or more.
I am looking forward to a court dominated by a six to three Liberal majority. I can just imagine how Clarence Thomas, Samuel Alito, and John Roberts will be grinding their teeth for a couple of decades having to have their pathetic opinions be the minority opinions in case after case...lol
A STATISTICAL STUDY
William M. Landes and Richard A. Posner
If Blueneck wants to make a point he/she should do it.
Apparently you either can't or won't back up some sort of point you thought you were making by simply posting a link.
Gotta love that typical liberal argumentation. When asked for some sort of clarification, rather than engage in a discussion or attempt to make some sort of point, you instead waste your time in an ad hominem attack before quickly descending into juvenile name calling.
Your last sentence was classic. Thanks for the laugh.
It really was a minor point. I was interested in seeing what the conclusions were but not interested enough to page through 50 pages. I gave it a try but didn't see the need to go any further after eight pages. I thought I made that clear. I was not attacking you or the link.
I see all this ranting you are doing is simply a deflection on your part. For what reason I do not know. My suggestion to you is if you don't like reading my posts, please don't. If all you are going to do is level juvenile insults you are wasting your time as they mean absolutely nothing to me and reflect poorly on you.
Anyway, most of the other posters here made it an interesting discussion.
I don't owe you anything. How often do I have to repeat this before you get it? There is no deflection here--the paper is the point...there is no point beyond the paper...if English isn't your mother tongue I would be pleased to translate it for you. You don't get to determine the rules by which information is disseminated on this site. If a paper is posted without comment it is because there is no comment. A comment is not required. The paper and it conclusions are the comment. Are you getting it yet?
The vetted data you claim was not provided is in the paper, but since you didn't even bother to read the conclusion I guess you wouldn't know that.
No, instead you chose to shoot your mouth off without even reading the paper. But that wasn't enough for you--you had to inject your petty little snark about me being unable to back up my point (which I don't have to do because the paper is the point). Just thought I'd repeat that one more time since comprehension doesn't appear to be your strong suit. Now why wouldn't you know enough to read the conclusion of the paper if, as you say, you were interested in the conclusion? You don't have to read fifty pages--only three (HINT: Conclusions are generally found in the section of the paper labelled 'conclusions'). How about demonstrating a little of that vaunted 'self reliance' you wingers like to tout as a virtue? Namecalling? Rant? If you want to see a rant just keep this nonsense up. And as for my chosen descriptors--if it quacks like a troll, sociopath, or narcissist it probably is one or more of them. A minor point? Then why are you choosing to prolong your agony?
To quote you:
"My suggestion to you is if you don't like reading my posts, please don't. If all you are going to do is level juvenile insults you are wasting your time as they mean absolutely nothing to me and reflect poorly on you."
Newflash: I don't live on this site and almost never read your posts. But you were the one who tried to call me out here. My initial post (the link to the paper) was not addressed to you and how can you say you were responding to it when you didn't read or comprehend it? You have no excuse for not reading a three page conclusion or demanding a summary. None. That is the sort of thing trolls do: make others do work you should be able to do if the outermost section of your posterior cingulate gyrus is normally convoluted. Since you have taken it upon yourself to offer me some advice let me offer some to you--if you don't want me to confront you don't mess with me. You don't have the chops. And I give back what I get.
Produce some evidence Straussian.
In other words, I didn't like the results so I'm going to throw them out and start over.
Justice Roberts skewers that contention by asking...How many times can the city take that stance? Until it comes out the way they want?
Here's the early line on the decision...remanded back for a new hearing 7:5...Ricci appeal confirmed 3:1...Ricci appeal denied 10:1.
If the decision of the court is overtturned, so be it. This is why we have an appeals process in our judicial system.
A jusdge is not an activist by overturning unconstitutional law. After all, that is their job. An activist judge is where one goes beyond what is written in the Constitution and uses their own personal beliefs to make law.
In Ricci, everyone can see that these white and Hispanic firefighters were denied their promotions due to race. That is discrimination and flies in the face of our Constitution. Upholding that lower court decision, in defiance of the Constitution is the truest definition of an "activist" judge.
It is apparent to me that the District Court and the 2nd Court of Appeals overturned the well established Civil Service laws that said promotions were to be based on merit alone. That has been upheld by courts all over the country. This court has decided to invalidate the Civil Service exam concept, (and one that has been devised to insure fairness in civil service promotions,) simply because they did not like the outcome.
There is no evidence to date that I have seen that proves the test was in any way discriminatory or racially prejudiced against blacks. The lawful test was thrown out only because no African Americans who took the test scored high enough. This fact alone does not prove disparate impact against blacks or racism. I have not seen any argument that even attempts to show the test was discriminatory. The only argument for not accepting the merit based civil service exam, is simply that there were no blacks who scored well enough. If you replace the word "blacks" with "whites" and you'd acknowledge the apparent unconstitutional ruling of the district court and 2nd Appeals Court of which Sotomayor agreed.
That to me looks like judicial activism.
I am always suspicious at people who cut and paste other documents into their post without comment and then when questioned tell me to go read the link - that they do not understand the argument.
I think that is the case here.
I don't doubt the district judge based his decision on previous rulings and it is apparent that the 2nd court of appeals (with Judge Sotomayor concurring,) backed it up without comment. That is not the issue here. The issue is if the ruling was correct according to the Constitution.
It is evident that the white firefighters were denied their promotions solely due to race. The argument, which 6 of the 13 judges disagreed, is the constitutional question of whether Ricci was denied his equal rights under the law.
Had Sotomayor voted the other way, the 2nd Court of Appeals would have heard the Ricci appeal. We now see that since this appeal has gone to the SC, this case brought up legitimate constitutional questions.
One has to wonder why Sotomayor, as supposedly, the most experienced living judge to go to the SC, did not recognize the unresolved Constitutional questions brought up by this case.
I'm guessing that's what the Supreme Court will consider. The District Court was obligated to follow precedent. You don't seem to understand they have different roles.
I do understand the different roles. The question is why did the 2nd Court of Appeals, and specifically, Sotomayor as a candidate for the SC, not give consideration the Constitutional questions of reverse discrimination that is apparent by the District Court's ruling?
Just because YOU think something defies the constitution does not make it so sir. People disagree on such issues, which is why we have people who study the law for years sit on a bench and judge laws instead of people like you and me who haven't studied the law doing so. It is so simple minded to just proclaim any decision to which you disagree as liberal activitism. That is what many, many, many conservatives called the Brown vs Board of Education decision many years ago even though the court voted 9-0 on the matter. The point here is that for you to insinuate that judicial activism is owned by the left is laughable at best and just plain dim witted at worst.
Can you point out any ruling by Thomas and Scalia where they included their personal religious beliefs in their rulings or their dissents? If not, you should apologize.
Apparently you are not reading what I am writing. I said if a judge (or justice) goes beyond the Constitution, that is, in my opinion, judicial activism. Simply overturning bad law is not.
I agree that it is not just my opinion that makes a ruling constitutional or not. After all, I am not a SC Justice. However, like you, I am entitled to my opinion. So your point is frivolous.
As for your other frivolous argument, one does not have to submit to the premise of "they studied it so they know better" rule on any issue. That is about the weakest argument out there with the exception of the "Oh yeah. You're dumb," that you try using in ending your post. We are simply discussing the issue of the day. Saying I am not a judge does not invalidate my argument in any way.
Rather than pepper your post with quotes you cannot attribute, I challenge you to name just two of the "many, many, many conservatives" who called Brown v Board of Education as "liberal activism". I have an inkling that you cannot do it.
So you really haven't addressed any of my points other to make unfounded accusations, tell me I should not have opinions about the law because I am not a judge and that my opinions are, in your opinion, dumb. I'm afraid you won't win many debates with those arguments.
AChris didn't say that Thomas or Scalia put their religious views into their decisions, but cited that their opposition to abortion was not based on the laws of the United States, but their personal religious beliefs.
Here is a conservative who calls Brown judicial activism:
"But John Eastman, law professor at Chapman University in Orange, said courts raise questions about judicial legitimacy when they second-guess elected lawmakers - particularly on subjects that are not mentioned in the Constitution, like abortion and gay rights.
Even in the Brown case, whose equal-protection rationale he supports, Eastman said the court should have confined its ruling to individual students and districts and left broader changes to the democratic process, where they would have been "longer lasting and more stable.''
http://www.commondreams.org/headlines04/0517-06.htm
I'm sure that whites in the south saw Brown as judicial activism. Trying to find more quotes for you, but it certainly was what you would call "judicial activism" now.
I have two problems with your post.
1. Citing a law professor 50 years after the fact leaves you one short. This guy may or may not be a conservative. Having the writer for the S.F. Journal characterize him as such when not characterizing the proponent for judicial activism, Professor Chemerinsky as liberal or progressive says a lot about the bias in the article.
"When the court advances liberty or equality in a way that the legislature won't, I think the court's performing its highest mission,'' said University of Southern California Law Professor Erwin Chemerinsky. "I believe that the courts make a positive difference in society.''
That, I think you'll agree, is completely contrary to law and the Constitution.
However I know you love a challenge and will search high and low to find a second "conservative". However keep in mind how difficult it is and how that flies in the face of AChris's hyperbolic "many, many, many conservatives" statement. If you ask me it you are wasting your time trying to defend what is not worth defending.
On another point, I do not see where Eastman called the Brown ruling "judicial activism". As your cut and paste shows, he agreed with the ruling although would have presented it differently. So is Eastman, a supposedly conservative, advocating "judicial activism", in which it negates Achris's contention? Or is Eastman simply saying the ruling is correct based on the Constitution? The article does not say.
The article does make an unfounded statement regarding the courts and legislature, "...directing legal and societal changes from the bench that would not have happened in a state legislature." that is completely unsupported.
So I would say you gave it a good try, and it is an interesting article, but it does not prove Achris's contention that "many, many, many conservatives" called Brown v Board of Ed and example of judicial activism.
All in all, I would call the article typical liberal mishmash.
You may be right that whites in the South at the time saw Brown as judicial activism. However to do so is only to raise a straw man argument.
"While Brown in effect overruled the 1896 Plessy v. Ferguson Supreme Court decision that racially "separate but equal" facilities were constitutionally acceptable, it avoided saying that Plessy was simply a wrong interpretation of the Constitution--that is, wrong in 1896 as well as wrong in 1954. Instead it relied on "modern" psychological knowledge, not available to the court in 1896, to show how separate could no longer be considered equal."
"Brown v. Board of Education was the crucial case establishing a pattern in which rhetoric beats reasoning--and we are still paying the price today. The painful irony is that black schoolchildren, the supposed beneficiaries of all this, have gained little or nothing in their education."
http://www.opinionjournal.com/extra/?id=110005085
From Klarman:
http://www.neh.gov/news/humanities/2004-03/brown.html
"In Brown the law was reasonably clear: segregation was constitutional. For justices to reject that finding suggested that they had very strong personal preferences to the contrary. And they did. "
That sounds like activism the way you define it, does it not?
http://www.conservapedia.com/Judicial_Activism
Examples
Brown v. Board of Education - 1954 Supreme Court ruling ordering the desegregation of public schools.
AA,
Why do you think Scalia is opposes abortion? Answer that question sir....honestly.
Again, just because YOU say it is "bad law" doesn't make it so. So again, my point here is that I tend to trust the opinions of legal scholars over the legal opinions of you in matters of the law. To accept your premise, we must conclude that there is no reason to give the opinion of experts in a matter more weight than those of a layman. The fact that you are not a judge certainly does not invalidate your argument, but it's really no different than having a car mechanic give an opinion on cardiovascular surgery and expecting equal value to the opinion of the surgeon. Which is what your argument is and you know it.
As for conservatives who viewed Brown as judicial activism you can try William Rehnquist who wrote at the time: ""I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed. To the argument . . . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minorities are." But mostly, I base my comment on experience sir. Were you not alive in the 50's and 60's? Do you not remember people like Orval Faubus, George Wallace and other various southern politicians who promptly turned to the Republican party after civil rights and how they railed against the federal government and the courts enforcing their liberal ideology on them? Are you really trying to tell me that this is untrue? So in the end, I'm afraid that you will never win an argument until you understand how to comprehend the argument put forth by the other person, which according to your previous post, indicates that you aren't to that level just yet. Better luck next time slugger!
Fried has done a nice job citing a law professor that a "liberal" reporter called conservative and Thomas Sowell, who we all agree is a conservative. Both conservatives, I think you'll agree, agreed with decision. Both would have presented the decision differently.
The point I want to make is that Brown v Board of Ed is not judicial activism. the justices invoked a proper reading of the Constitution that redresses the improper conclusion in Plessy v Furguson. The reasoning behind this ruling does not what makes the ruling judicial activism. What makes judicial activism is for judges and justices to go beyond what the Constitution and Bill of Rights guarantee and invoke their own personal preference over and above the Constitution.
So you might argue that the reasoning behind Borwn v Board is judicial activism, but it is clear that the ruling is not.
On another point, Achris your appeal to authority is a very weak argument. I can just see you arguing 100 years ago that the opinions and theories about physics by a patent clerk in Switzerland also worthless.
It would be great if you would provide a link to Rehnquist's quote. I'd like to read it in context.
Seriously, the arguments presented here rise and fall on their own merits and not the person's profession, race, gender, or personal life story.
I don't know why you are trying to attribute words and arguments to me I did not write. I remember that Faubus and Wallace were Democrat Governors. and Wallace later ran as an Independent. So your memory is flat out wrong.
As a side note, Faubus endorsed Jesse Jackson for President in 1984.
Yes, it is accurate to say Wallace and Faubus were segregationists at one time. I was young at the time, but I do remember many people arguing against some of the court's decisions with regards to school busing, which many, liberals and conservatives alike, felt clearly went beyond the constitution in order to desegregate the schools. But that is a different subject. Yet I remember personally some of the problems that insued because of it. So yes, I do remember. You are making a straw man argument to say I am calling the civil unrest of the time as untrue.
Rather than criticize my comprehension, I think you would do better to do your homework before posting. Either that or pay fried a retainer. :-)
Sowell would not have had the court decide this issue, AA, as he noted the consequences of the decision:
"Judicial activism was for all practical purposes now the accepted law of the land in everything from anti-trust cases to the arrest of criminals."
"This approach finessed the whole question of why the Warren court's reading of the Constitution was superior to that of the 1896 Supreme Court, rather than simply reflecting a different social preference. Such a question would undoubtedly have stiffened the resistance to the Brown decision, which was stiff enough as it was in those states where racial segregation existed."
That quote seems to be what you want SS to have done in the Ricci case, which, here Sowell calls judicial activism.
Klarman does not seem to be liberal by his quote thinks it was judicial activism as well.
Both are not disagreeing with the decision, but rather that the SC made it.
Sowell especially considers Brown to be judicial activism and, obviously, so does the author of the site conservopedia.
Here's another site that calls Brown an example of the Warren Court's judicial activism:
http://law.jrank.org/pages/4901/Brown-v-Board-Education-Topeka-Kansas.html
"It also symbolized the judicial activism of the Supreme Court under Chief Justice EARL WARREN, who would go on to lead the Court until 1969 in a remarkable era of change with regard to civil rights."
I'm glad you don't see Brown as judicial activism, AA, but your side of the aisle certainly does.
Since you like giving challenges, why haven't you responded to mine? Can you name another decision made by the SC which is not to be cited for precedent over the last 50 years other than the Bush v. Gore decision?
I agree that the Warren Court engaged in Judicial Activism. I did not and do not see that the judgment in Brown v Board of Ed was liberal activism, but Sowell makes a good point that the reasoning and the later decisions that flowed from the decision indeed are good examples of liberal activism.
I'll take just some small consolation in that it looks to me Sowell argues that the Warren Court's reasoning was in error, not the end of "separate but equal" schools. I find myself in agreement with Sowell that as he wrote, "Brown v. Board of Education was the crucial case establishing a pattern in which rhetoric beats reasoning--and we are still paying the price today."
I do enjoy Sowell. Thanks for doing the legwork. You win. :-)
As for your challenge, I will have to pass at this time. I do not see the reason why you ask for it in terms of this discussion and it frankly does not interest me at this time to go looking as this thread is a few days old. I hope you'll forgive me.
Maybe next time. It's been a fun discussion.
If you don't agree with Sowell that Brown was an example of judicial activism, how can you agree with him that the decision was the lynchpin of judicial activism? I'm not sure how you can disagree and agree with him on the same point.
I don't believe I posted that Bush v Gore was one of several cases the SC concluded was not to be used for precedent. Perhaps you are thinking of someone else?
I only asked for legwork when I see claims that look to me to be in error.
Since this thread is not about Bush v Gore, and you didn't explain how it is relevant to the discussion at hand, I find the request on your part is immaterial to the discussion. For this reason it is not important enough for me to take up your challenge.
As a rule you are always asking questions and as a rule I do try to give you my take. Sometimes it doesn't work out. This is one of them.
My agreement with Sowell is with his take on the reasoning that the SC used and the judicial activisim that followed, not the actual decision to overturn Plessy v Furgeson. My guess is that Sowell also agrees that the "separate but equal" ruling should have been overturned. He as much stated it in the cut and paste you provided.
I believe that the "separate but equal" doctrine that flowed from the Plessy v Furgeson was unconstitutional. I believe correcting it was the proper function of the SC. I would guess we are in agreement over that.
I hope that explains it. I wish I had time to further discuss but have to run. Thanks for the discussion.
From: http://mediamatters.org/research/200905010029
"by Brabantio (May 01, 2009 4:39 pm ET)
Bush vs. Gore stated that the decision shouldn't be used as precedent. If there was a sound basis for the ruling, then there shouldn't be any problem with using the same reasoning in the future. The only way it makes sense is if they knew they were making a purely political decision and they didn't want to justify the same sort of decision benefitting a Democrat at any point in the future."
"by anotheramerican (May 01, 2009 4:58 pm ET)
Brab,
I do believe the Court rules this way fairly regurlarly."
When challenged, you didn't respond. Like you, when a claim looks like its in error, I challenge it. Here, you backed down. Its germane to the discussion because you asked for legwork from me and bluneck above. When challenged similarly, you didn't respond.
I can only take from our brief discussion that you approve of judicial activism, as you define it, when you agree with it.
Now, when you challenge others to do leg work, I'll challenge you again to show more cases, like Bush v. Gore, where the SC rules without precedential value because you stated they do this "regularly."
I wonder if you would argue this way if it 16 black firefighters had passed the test and were denied the promotion? Would you say there was no discrimination if that scenario had taken place?
There is another case where Ricci v New Haven decision prevented a civil service taker a promotion after the fact. See Timothy Bottone et al v City of Bridgeport et al.
You can argue that there is no harm, but it looks to me that if the same 16 do not get the promotion, they were indeed harmed professionally, and financially.
Well, here's what Ricci's attorney had to say in Sotomayor's courtroom on that subject:
-- No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 a piece. Half of their marriages were strained by this. They spent 3 months of their lives holed up in a room like I was and you were when we took the bar exam...
You need to know: this is not an aptitude test. This is a high-level command position in a post-9/11 era no less. They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined space rescue, dirty bomb response, anthrax, metallurgy, and I opened my district court brief with a plea to the court to not treat these men in this profession as if it were unskilled labor. --
Ricci's attorney makes a lot of sense to me concerning harm. Sotomayor and her amigos thought otherwise.
And if the test HAD resulted in 15 Black Firefighters passing and NO ONE ELSE? Yeah, I'd say that was a bogus test, and I imagine you would too.
Till then (the confirmation that is), it is a time filling slot for the news media. No one provides a fair coverage, every one invents possible 'problems' and our stupid elected officials make asses of themselves in public.