Supreme Court Overturns City On Ricci

by Paul Bass and Thomas MacMillan | June 29, 2009 10:06 AM | | Comments (64)

TM_062909_031.jpg(Updated 1:53 p.m.) New Haven has lost the firefighters promotion case — and national civil rights law is being reinterpreted as a result.

That was the upshot Monday morning as the long-awaited Supreme Court decision came down in the case known as Ricci v. DeStefano.

The case was filed by 20 city firefighters — 19 white, one Hispanic — who said the city violated their rights by ignoring the results of 2004 promotional exams because no black firefighters scored high enough to be immediately promoted.

The Supreme Court’s justices, voting 5-4, agreed.

They sent the case back to U.S. District Court in New Haven, where federal Judge Janet Arterton had originally ruled for the city that it was OK to ignore the results.

But the Supreme Court didn’t give Arterton room to delve back into the complex legal issues involved in the case, as many observers had expected. Instead, as plaintiffs’ attorney Karen Torre noted as she digested the verdict, “it was an out-and-out reversal.”

Justice Anthony Kennedy provided the swing vote, as expected. He also wrote the majority opinion released at 10 a.m. Monday. He made an argument that is bound to resound for years to come as lower courts and local governments interpret civil rights law in hiring.

Kennedy zeroed in on the issue that Karen Torre hammered home from the start of the case: That the city shouldn’t have ignored the results of a test just because it thought it might face a lawsuit.

The court wasn’t convinced that the test itself had been racially discriminatory.

Read the decision here.

The bottom line, according to top court-watching blogger Tom Goldstein: “The plaintiff firefighters won. New Haven violated the law by throwing out the test.”

Four conservative justices were firmly lined up on the side of 20 New Haven firefighters who sued and charged reverse discrimination. Four members of the court’s liberal wing sympathized with the city’s argument that under Title VII it had no choice but to throw out the results of the test, because no black test-takers scored high enough to qualify for a promotion.

In his opinion, swing vote Kennedy wrote that the city must certify the results from a 2004 promotional exam — and can use this interpretation of civil rights law to ward off a subsequent lawsuit.

“Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim,” Kennedy wrote.

“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

Kennedy’s opinion confirmed the general notion that governments can take steps to make sure that their hiring processes don’t discriminate. What seemed to irk him in part was the idea of changing the rules after a test has been set.

“[O]nce that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race,” Kennedy wrote. “Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed … and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race.”

Fire union President Pat Egan claimed vindication. He had all along called for a “validation study” that would review whether in fact the test was flawed.

“In reading the decision, what the court seems to have concluded is that you need to base these decision more than just off the results,” he said. “What they seem to allude to would be the process that we advocated for at the onset of this, which was a validation review of the exam itself.”

Meanwhile Monday morning, at New Haven’s Goffe Street firehouse — where named plaintiff Frank Ricci works — four firefighters awaited the verdict on Fox News. They sat silently as the news broke.

“Wait, did they make a decision?” asked one firefighter, who was filling in for Ricci. (Both Ricci and Gary Tinney, the leading African-American firefighter supporting the city in this case, had the day off. Tinney works at the Goffe Street firehouse, too.)

A Yale Daily News reporter present explained the verdict to him.

“Good. Good. Good,” the firefighter said. “I’m so happy.”

The firefighters present said they’re under a gag order not to discuss the case.

“The mood here is fine,” their supervisor, Lt. Louis Rivera (pictured), said before the announcement. “Everyone gets along.”

“We were told by the chief’s office not to comment while on duty,” he added.

The case began in 2004 when the 20 firefighters, 19 white and one Hispanic, filed the lawsuit claiming that New Haven discriminated against them by ignoring the results of promotional exams when no African-Americans scored high enough. After losing two rounds in federal court, the firefighters convinced the U.S. Supreme Court to hear the case; they found a notably more sympathetic audience there.

The case has become a lightning rod in the national debate over anti-discrimination law and affirmative action. It has also become Exhibit A in the case opponents are making against Supreme Court nominee Sonia Sotomayor.

National civil rights groups backed the city’s position. They argued that the firefighters’ suit threatened to eviscerate laws — particularly Title VII of the Civil Rights Act of 1964 — that afford opportunities for African-Americans to advance in fields, such as firefighting, in which racial discrimination lingers.

National groups opposed to affirmative action weighed in on the side of the firefighters, as did TV commentators and others who viewed this as a case of reverse discrimination. Some argued that in light of the election of an African-American president, Title VII and affirmation action are outdated.

When the Supreme Court’s justices heard the case on April 22, the Obama Administration weighed in with a middle position.

ricci%20stock%20photo.pngAt issue was whether the non-black firefighters’ constitutional rights were violated under the 14th amendment to the U.S. constitution; and whether, under Title VII, a city should throw out the results of a test it had believed it conducted fairly because it still believes it could be sued over the results.

For a detailed overview of the legal issues and personal impact of the case, by Emily Bazelon and Nicole Allan in Slate, click here.

Past stories on fire department promotions and the Ricci case:
Minority Firefighters Vow Post-Ricci Unity
Ricci Ruling Won’t End Quest
Ricci, Sotomayor Brand DeStefano
Firefighter Case Reveals Surprise Obama Stand
Justices Zero In On Race-Based Distinctions
Rights Groups Back Black Firefighters
The Supreme Stakes: Title VII’s Future
Dobbs v. Bolden
Latino Group Backs White Firefighters
Black Firefighters: Ricci Case Poses Grave Threat
NAACP Backs City In Firefighter Case
Paging Justice Kennedy
Fire Inspectors Promoted
Fire Inspector List Approved
U.S. Supreme Court To Hear Firefighters’ Case
Fire Promotions Examined in Supreme Court

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Posted by: John Doe | June 29, 2009 10:14 AM

I guess that racism is not okay as long as it isn't against my race. Why do those who claim to be the most tolerant behave the most intolerant?

Posted by: Townie | June 29, 2009 10:21 AM

Congratulations. A special thank you to King Johnny for wasting taxpayer money in the first place. Time for you to go, Johnny.

Posted by: Pedro d'Ibazo | June 29, 2009 10:49 AM

Finally New Haven can put this shameful chapter behind us. Diversity for its own sake is bigotry. And when lives are at stake, it is municipal malpractice.

Posted by: j | June 29, 2009 11:00 AM

Destefano should resign...Not only has he destroyed New Haven,but has set back years of civil rights progress.....

Posted by: East Rock | June 29, 2009 11:11 AM

The city should promote those that are best qualified, irregardless of race.

These fine folks are paid to save lives. Do we really want someone less qualified doing the job simply because we are trying to fill some type of quota?

Posted by: cba | June 29, 2009 11:23 AM

Mayor DeStefano has learned a valuable life lesson, and that is the rule of law will supersede political cronyism.

Posted by: Hmmm... | June 29, 2009 11:33 AM

While I agree that race should not be the determinant in hiring or promotions I question the wisdom of using a written/oral exam as the main factor. How many of us know people who are excellent at exams but have the personal skills of a toadstool? Book smarts don't mean nothing on the streets.

Promotions should be based on real life abilities. Written/oral exams could be used to cull the herd but promotions should be based on many other things. If you pass the test then you should go to the next level of determination. Everyone who passed should be considered.

And please stop trying to make it seem like everything with race relations is okay because of Obama's election. That's just naive and stupid!

Posted by: blue dog dem | June 29, 2009 11:52 AM

Discrimination against white males is easy when they don't complain or take it to the courts. I applaud Ricci and the nineteen others who followed their convictions and made the public address this issue. Hard work is what creates success and should be rewarded.

It is unfortunate that the New Haven taxpayers are going to again get hurt due to our inept leadership (back pay, benefits, etc) but we shouldn't be surprised.
BTW, it is sad that on the national stage New Haven is known for discriminating against White and Hispanic citizens and for legitimizing illegal aliens.

A constitutional law/history professor is going to be speaking about Ricci and other current events at the Hall of Records on July 29th @ 7pm. I think that it is open to the public and free to those interested in these sorts of topics.

Posted by: Eastrockin | June 29, 2009 12:08 PM

Great decision - although its a shame that it took this much time and gov't ressources to come to such an obvious conclusion.

Now let's get back to what's really important in our city - reducing our expenses. Look around - most surrounding towns decreased their mill rate this year - HEY! City Hall - keep the mill rate constant is a step backwards for New Haven.

Posted by: cedarhillresident [TypeKey Profile Page] | June 29, 2009 12:11 PM

Congrates guys. I do feel that the city felt it was above the law and this case shows that they are not. It is hard commenting on this story because it is a racially charged one. As the city stated your dammed if you do and your dammed if you don't. But one race can not have the rights to say discrimination for it to be truly equal all races have to have that right. I agree with Walts comment in the previous story. The NAAcp should of been out there helping there guys pass the test with books and study groups They where started up to show that African Americans were equal, and to get them equal rights. Saying that they can not pass the writing part of the test seems to be a low blow for the fight as far as I see.

Posted by: JZ | June 29, 2009 12:17 PM

My opinion falls on the same side as Scalia & Thomas. Shock.

This case is absolutely about reverse discrimination. If I didn't live in N.H. I wouldn't be aware of that.

Posted by: Walt | June 29, 2009 12:26 PM

Great news!

Tossed a few (very few) bucks toward the firemen's expenses and am proud of my very minor part in this effort.

Posted by: toomanytaxes [TypeKey Profile Page] | June 29, 2009 12:31 PM

DeStefano's is working on Education Reform to improve his legacy. DeStefano's cronyism practices is responsible for killing Affirmative Action. DeStefano will now always be remembered as the man who ended Affirmative Action in the United States. He may get to be a hero to racists everywhere.

Posted by: Exiled Italian Shill | June 29, 2009 1:07 PM

Glad to be in the company of so many constitutional scholars. I suggest everyone read the decision.

Kennedy says that the City DID meet the standard of prima facia but that Kennedy argues that is not enough. The city followed established by not certifying - thats why it was consistently upheld in lower courts. Rather the Court will now employ a new standard - a standard of "strong basis of evidence." Whatever that means. In short the Court just changed the rules of established law.

Justice Ginsberg says it best when she wrote that the Court's opinion on this matter "will not have staying power."

Posted by: Tom | June 29, 2009 1:24 PM

Can you imagine the uproar if the City HAD issued promotions based on these test results? No African-American firefighters getting promoted?

The City was in a damned-if-you-do, damned-if-you-don't it chose to do nothing. It chose to respect the law of adverse impact and hold on making any moves based on these test results.

I think the City did the best it could in a difficult situation.

The particulars of this case aside, I do worry about what this decision will do for the future of protection minorities in our workplaces.

Posted by: Resident | June 29, 2009 1:27 PM

Maybe NOW someone will have the b*lls to run against King John in November. Apparently the tide is beginning to run against the Johnny D. machine. About time for the madness to end.

Posted by: Fred | June 29, 2009 1:43 PM

The decision says that the city cannot through out a test because it doesn't like the outcome. Perfectly sensible except for weak minded liberals.

Posted by: Edison | June 29, 2009 1:50 PM

It's nice to finally see merit win over Political Correctness.
Here's to some judicial sanity!

Posted by: Undertow | June 29, 2009 2:27 PM

It's about time the courts recognize the reverse discrimination Whites have been subject to. So if I am black, I can just walk into a job with no qualifications or not have to worry about passing a test?

These are also public service positions where people's lives are at stake ! I for one want someone qualified for the job!

They were able to pass the tests, why were they denied the position? Great decision by the Supreme Court !

Posted by: New Haven 20 | June 29, 2009 2:47 PM

Thanks to everyone who supported us. We couldn't have done it with out you.

Posted by: Jack | June 29, 2009 3:47 PM

Give the Mayor credit for trying to change a system where only the well connected got a job or promotion from nepotism! It's not his fault that title VII exists today.

Posted by: Peace Frog | June 29, 2009 3:47 PM

The City of New Haven faced a very difficult decision with respect to this case. On the one hand, the results of the test seemed to indicate, to the extent previously upheld in civil rights cases, that the tests were somehow skewed in favor of white firefighters. On the other, the firefighters had personally invested heavily in preparing for the test, playing by the rules and trying as hard as they could to succeed. Today, the Supreme Court of the United States reinterpreted Title VII of the Civil Rights Act, the law that cities across the country have been struggling with for years. Our city now has professional guidance to promote firefighters in a just and non-discriminatory way from the nation's highest legal authority. Mayor Destefano and his administration have committed to moving forward with this endeavor under the court's direction, and will attempt to make the best of what started as a complex decision in which the City had no "good" choice. Hopefully this is a problem that the City can now put in its past.

Posted by: Alphonse Credenza | June 29, 2009 3:52 PM

Fantastic. Merit trumps race!

Posted by: steve | June 29, 2009 4:06 PM

Curious there was no mention at all of Sonia Sotomayor in this story (or the next). She's up for the Supreme Court and she OKed the egregious lower court decision without bothering to comment. Now she has been overturned, on the eve of her confirmation hearings. You wouldn't know any of that by reading the NH Independent today, though. I wonder whether the Independent would have mentioned her role had the Supremes upheld her decision?!

[Editor's Note: Good question, Steve! We threw around a whole lot of story ideas as this story unfolded today. We indeed noticed that the national press was playing up the Sotomayor angle big time. In the end we decided there were so many local angles to cover, we'd let the nationals handle that angle. Maybe a wrong decision, don't know; we decided we didn't have a whole lot to add...]

Posted by: CommonSense | June 29, 2009 4:13 PM

Justice Kennedy hit the nail on the head. The absurdity of this case is that the city CHANGED THE CRITERIA of the test after the fact because no BLACKS could pass the test! and he wrote "is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race"
...................................wake up Connecticut!...................................
.........who do you want calling the shots if your home is on fire?.........
.......someone who has demonstrated KNOWLEDGE to do the job?.......
or someone who was "given" the job because you feel sorry for them?
...........look at your spouse your children your pets your home..........
................take a look around and rethink your PC answer.................

Posted by: blue dog democrat | June 29, 2009 4:38 PM

Exiled Italian Shill:

I hope you read the decision, especially Alito's concurrence. He put in a lot of facts that were otherwise unknown, including Tinney calling Ricci supporters "Clansmen" and the mayor trying to hide the fact that he wasn't going to ratify the promotions, even before the committee made its decision.

The entire decision is 93 pages, but well worth reading if you really want to see how DeStefano, Kimber and the Machine operate.

The right side won, thank God, and it will survive the smell test. BTW, a "strong basis of evidence" is what most people call "facts" and not liberal prejudices, i.e., arguments created to justify a verdict.

Posted by: Common Sense | June 29, 2009 4:47 PM

As the late Paul Harvey would say "..."and thats the rest of the story"....

Posted by: James FP | June 29, 2009 4:47 PM

Undertow rhetorically asks, "if I am black, I can just walk into a job with no qualifications or not have to worry about passing a test?" That is utterly disrespectful to the black and Hispanic firefighters who did not receive promotions. Consider people like Wayne Ricks, who has served honorably for 27 years and scored 69.9833 on the lieutenant's exam, putting him less than two-hundredths of a point away from the promotion threshold. These candidates are exceptionally qualified. Furthermore, there are serious doubts as to whether these exams are even the best way to go about determining who will be promoted. One narrow example of flaws with the New Haven exam: the test focused only on fire-related material, even though most of the calls that the fire department takes are not related to anything actually being on fire--they're medical, etc. Contrary to your beliefs, it's not as though black and Hispanic firefighters expected to be given promotions as a result of their ethnic identities, and for you to imply that they did is totally demeaning to the hard work that they have put in over the years. (NB: I do not mean to say that Ricci et al. did not put in a great deal of hard work, only to say that they are not the only ones that worked hard).

In handling this case the way that it did, the City of New Haven commendably tried to resolve an incredibly unfortunate situation in such a way as to minimize the pain of all parties involved while complying with decades of established case law. The City did NOT, as several commenters have implied, believe itself to be above the law--if it did, I seriously doubt that the eight federal judges (appointed by both Democratic and Republican Presidents) that ruled on this matter before it found its way to the Supreme Court would have sided with the City. The City acted in accordance with the law as it stood in 2004, and continued to stand until it was reinterpreted by a bare majority consisting of the most reactionary justices on the most conservative court the country has seen in generations.

The Mayor is absolutely right to see today's Court opinion as part of a larger pattern of attacks on civil rights protections, and should be commended for his efforts to create a municipal civil service that reflects the community it serves, and to advance equal opportunity in the workplace and beyond.

Posted by: ltmike | June 29, 2009 4:50 PM

Jack, you need a pulse of how things are STILL run in the city! No matter what the employment, politics and nepotism come into play. I am not going to say 'in the day' there was not racial and sexist descrimination, which required law to make much needed improvements. And this is not to say that you do not have people with racial or sexual bias still, although they are few and far between. BUT, in todays day and age things are far different. As the city attempted to do, people bend over backwards to help minorities, at a certain point it becomes sickening and sad. Race is always used as a crutch and excuse and I find that sad for the MANY deserving minorities that HAVE excelled through the ranks AND the minorities that are GOING to excel on future examinations. Politically this city is diverse enough among politicians and commissioners NOT to allow racial bias! Point blank on this set of exams the best candidates happen not to be minority. It does not make them 'bad' officers or firefighters, but on this given exam on those dates not the top score getters. There is no perfect system and the system that has worked in the past (promoting numerous minorities the last 14 years to ALL the ranks)was implemented again. NO ONE worked to change this system BEFORE this exam six years ago. Congrats' to the New Haven 20.

Posted by: cedarhillresident [TypeKey Profile Page] | June 29, 2009 5:00 PM

Thank god they did not. Every other news source is! this was a case about New Haven and at this moment I am glad that the NHI made there story about that. The time will come mid july when theat will be a suitable story. Thank you NHI for not writing the story the way every other news source is.

Posted by: cba | June 29, 2009 5:03 PM

All opponents of political cronyism should work together to send ... Desteafano and Dodd to the unemployment line !!!!!!

Posted by: James FP | June 29, 2009 5:21 PM

Blue Dog Democrat,

You're right to suggest that people should read the ENTIRE opinion. I encourage YOU to read Justice Ginsburg's brilliant dissent, in which she exposes Alito's concurrence for what it is: a massive straw man built out of unproven, baseless allegations. It is truly disappointing to see a sitting Justice of the United States Supreme Court engage in the intellectual chicanery that Justice Alito did. As Ginsburg said in Footnote 1 of her dissent, "Never mind the flawed tests New Haven used and the better selection methods used elsewhere, JUSTICE ALITO's concurring opinion urges. Overriding all else, racial politics, fired up by a strident African-American pastor, were at work in New Haven." The idea that one outspoken Pastor's speech somehow overrides a) the test's inherent flaws as a method for determining one's aptitude as a firefighter in a leadership position and b) the test's clear disparate impact is absurd.

And Commonsense,

As I said earlier, it's not as though the firefighters that were passed over were idiots. Your suggestion that they're somehow unqualified is absurd. Furthermore, as I've said, the promotion exam did not test knowledge of anything beyond fire runs. So, let me pose a question to you: would you rather have a firefighter who had passed a comprehensive promotion review (including evaluations of competence in dealing with medical emergencies) responding if, say, you have a heart attack? Or would you rather have one who had no idea how to deal with a heart attack, but could tell you in vivid detail what happens when cold water hits a hot steel truss?
The fact of the matter is that the exam that was used was flawed. Don't conflate a failure to pass the exam with being unqualified for promotion.

Posted by: nfjanette [TypeKey Profile Page] | June 29, 2009 7:26 PM

The fact of the matter is that the exam that was used was flawed. Don't conflate a failure to pass the exam with being unqualified for promotion. Is it, or are you arguing from an assumption that it must be flawed because of the outcome? How many more rounds of revisiting the test should be allowed?

Posted by: unreal | June 29, 2009 7:26 PM

James let me explain something to you, alito's concurrence may be a little over the top but he exposed the intricacies of this case to the country, the ones main stream media ignored.

And as far as testing for how to handle medical emergencies. If you had any clue as what you were talking about 90% of new haven firefighters are EMT's. As an Officer you are a supervisor, thus supervising CT state certified EMT's at an emergency, unless they are doing something to jeapordize patient care the officer should let his trained men do there job interjecting as he see's fit. When you are leading yourself and 3 other men into the bowels of hell that is when your true command presence and knowledge of the job come into play. Before you speak your idiotic rhetoric get your facts straight.

The highest court in the land has ruled deal with it. God Bless the 20, they are true heroes

Posted by: blue dog democrat | June 29, 2009 7:56 PM


I have read the entire opinion, including footnotes, and disagree entirely with Ginsberg. That she focuses on Alito, rather than Kennedy who wrote for the majority, speaks to her lack of ability to critique a decision based on facts, rather than wishful thinking. Stating that the 20 did not have a vested interest in passing and being promoted was a joke.

Title VII was an extremely important piece of legislation when it was enacted. It attempted to assist those persons who faced grave discrimination in most if not all of their lives. But to tell me that it is still necessary today, when those born after 1975 have never seen a "Whites Only" sign and have never faced the rampant discrimination of their elders is insulting to me and to those who pride themselves on earning their keep, no matter what the color of their skin.

Kennedy, not Alito, wrote for the majority, and as the most moderate of the justices on the Court could not find any merit whatsoever to the City's argument. His tone of questioning during orals showed his complete disdain with the City and it's argument. The fact that enablers are stating the City was between a rock and a hard place are wrong. It is sometimes hard to do the right thing, but it gets harder when you take the easy way out. The error that the City made was that they did not realize that Ricci and the others would take their grievance to the courts.

Also, there were no complaints about the exam prior to it being given or immediately thereafter. Only after the results were posted did it become an unfair exam. Why?

Whether Alito was a scared little boy as one poster wrote or whether Thomas is a reverse racist, picking his wife's race over his own, or whatever else people are going to complain about or any other dispersions that liberal hatemongers are going to spew, the fact is, the rule of law is correct and its time to realize that the free lunch is over.

The irony is that the people complaining about Alito are the same who endorse Sotomayor, who will definitely bring her empathy to the Court and do exactly as Alito is being accused of - using feelings rather than the rule of law to adjudicate cases.

Congrats to the 20!

Posted by: James | June 29, 2009 8:13 PM

@James FP
And I'll ask you a similar question. If the test had produced the "right" racial mix would anybody be questioning the applicability and validity of the test? No, it would never have been questioned. Ginsberg is absolutly naive to believe that political cronyism and backroom deals are not de rigueur for New Haven politics. This city is run according to the politics of pandering and mutual back scratching. It's just a shame that we haven't had a reasonable opponent to JD in many years.

Posted by: jack | June 29, 2009 10:33 PM

finally some sanity,thank God for grownups,show Johnnie and "Rev." Kimber the door

Posted by: kamb | June 30, 2009 8:06 AM



Posted by: James FP | June 30, 2009 11:58 AM

I have to say, I never thought I'd see the day when Fox News talking points would be regurgitated so shamelessly on the pages of the New Haven Independent.

Before I address any comments, let me just point out how absurd the allegations of cronyism on the part of the City are. If the City were determined to engage in favoritism and cronyism, why would it go through the trouble of making every effort to craft a facially neutral test? Why wouldn't it make subtle efforts to help their preferred candidates pass? Then, when the test results came back, why wouldn't the City just say that it had discovered more money for more promotions, and thus could take their allegedly preferred candidates? When the case went to litigation, why wouldn't the City realize the gig was up, then cut a deal? New Haven's actions were indicative of a city with great respect for civil rights law, period. And any discussion of any outspoken community leaders is nothing but a despicable straw man argument created to distract from the real question at hand: whether the test had a disparate impact, and whether that impact was legally justifiable.

Now, Unreal,
I'm frankly a bit alarmed that only 90% of New Haven firefighters are EMTs; I would expect the figure to be 100%. Regardless of the figure, I fully agree that the officers on the scene should not concern themselves with micromanaging medical treatment. But don't you think that this should extend to the fire itself? Every firefighter has spent a significant amount of time learning how to fight fires, and can handle the routine operations himself. As you said, "[w]hen you are leading yourself and 3 other men into the bowels of hell that is when your true command presence and knowledge of the job come into play." I sense that you mean to say that the true test of a leader is an extroardinary situation that requires a blend of leadership skills and innovative application of materials learned, and I could not agree more. However, I'm a bit unclear as to how a multiple choice exam can possibly test for the leadership intangibles and creativity that are essential to being a good Lieutenant or Captain. I can understand why one might say that the multiple choice exam is needed to establish some evidence of a certain level of fire science knowledge, but as Duke Law professor Walter Dellinger has pointed out, New Haven's exam made up 60% of the promotion decision, meaning that it was weighted doubly as heavily as the median fire promotion exam in the United States. I'm not sure how you can justify such a heavy weighting of an exam that does nothing to test for the creativity and leadership intangibles that you yourself seem to imply are necessary. You may want to consider the implications of your ponts before you launch off on your screeds.

Following my argument that the exam was flawed, you ask "Is it, or are you arguing from an assumption that it must be flawed because of the outcome?"
I seem to have misspoken. The exam itself may not necessarily have had inherent problems, but the context in which the exam was used was, in fact, highly flawed. True, if the exam's results had been more equitable, we would not likely be discussing it on these pages today, but that would not change the flawed promotion scheme. Here's why this matters: a flawed exam that doesn't properly account for leadership intangibles is largely attributable to a very rigid union contract and some miscues on the part of a consulting firm, but it is not illegal. A flawed exam that creates a disparate impact is actually ILLEGAL under Title VII, as its disparate impact is not justifiable due to its focus on the minutiae of fire science knowledge rather than actual leadership prowess. There's a difference between a benign mistake (not seeing a stop sign that is hidden by an overgrown tree branch) and a benign mistake that hurts somebody (not seeing that same stop sign, but then hitting a child who pops out on the street to retrieve his bouncy ball). Kudos to the City for realizing that the promotion system had some problems and trying to fix them rather than trying to sweep them under the rug. If only more decisionmakers would be as serious about rectifying unfortunate situations, the world would be a better place.

I believe that between my point about how absolutely ludicrous these allegations of cronyism are (again, consider how a situation with a backroom deal would ACTUALLY look), and my response to NFJanette, I've adequately responded to your post. Let me reiterate, however, my contention that people still would have questioned the test, but the questions would have been more along the lines of "Do you think we should modify our promotion system going forward?" instead of, "Do you think that the City of New Haven would violate Title VII of the Civil Rights Act of 1964 by certifying the results of this promotion exam?" One of these is a more policy-oriented question, while the other is a more "breaking-Federal-law" oriented question. I'd submit that the latter is a bit more visible, hence the high level of interest.

Blue Dog Dem,
I'm going to assume that you're giggling uncontrollably as you refer to Justice Kennedy as a "moderate;" he's anything but. He was appointed by Reagan, and if you look at his voting history, he voted with the reactionary Chief Justice Rehnquist as often as any other Justice between 1992 and Rehnquist's death in 2005. His status as being slightly less reactionary than some of his colleagues does not make him a "moderate" any more than being slightly to the left of Genghis Khan makes Dick Cheney a "moderate." Keep in mind that Kennedy also drafted another quite famous lead opinion in a 5-4 case; this one was back in 2000, went by the name Bush v. Gore. For more on Justice Kennedy, I suggest you read Jeffrey Rosen's great piece on him, "Supreme Leader: The Arrogance of Anthony Kennedy," which was published in the New Republic a while back ( Kennedy's tone towards the City of New Haven at oral argument is more indicative of his own God complex than it is of any flaw in the City's argument.
Furthermore, Ginsburg does not "focus" on Alito; she only discusses him insofar as she exposes his discussion of Kimber for the despicable straw-man argument that it is. Nor does Ginsburg say that the firefighters did not "have a vested interest" in promotion; rather, she says that they had no vested RIGHT TO PROMOTION--these are two very different things. I have a very strong vested INTEREST in the government giving me $20 million dollars for me to spend as I please, but I have no vested RIGHT to receive that money. Ginsburg meant to say that the firefighters could not claim a RIGHT to be promoted; this is an accurate statement.
Your statement that to say that Title VII "is still necessary today, when those born after 1975 have never seen a 'Whites Only' sign and have never faced the rampant discrimination of their elders is insulting" belies a view of race relations in America that can most charitably be described as naive. Yes, we've come a long way from Jim Crow and Bull Connor turning a fire hose on demonstrators. However, significant pay disparities between whites and minorities persist (, minorities still tend to be treated differently than whites by police officers (, and the education system tends to serve white students significantly better than it serves minority students, just to name a few examples of how day-to-day life in America is significantly different for whites and minorities. Again, we've come a long way, but the fact of the matter is that problems and inequalities persist, and to ignore them doesn't make your analysis look any more credible. It's not the '40s, but we're not in a racial utopia either.
Those of us who are criticizing Alito's opinion are not doing so out of a concern that he showed too much "empathy," we're criticizing the fact that he built a massive straw-man out of Boise Kimber and used it to distract from the real issue. And your assertion that Sotomayor uses her "feelings rather than the rule of law to adjudicate cases" is perhaps the most idiotic thing that I have read on here. As an appellate judge, Sonia Sotomayor was BOUND BY PRECEDENT. Her decision to uphold the District Court ruling was actually an act of JUDICIAL RESTRAINT. Since people have problems understanding this, let me expand on this point. The American legal system is based on "common law," meaning that when judges rule on an issue, their ruling can be considered BINDING PRECEDENT for future cases. Over the past 30 years, there have been multiple rulings on Title VII that have given employers broad discretion to toss out tests that had a disparate impact. Judge Sotomayor relied on this precedent when she voted with a UNANIMOUS panel of judges to uphold the District Court's decision. The 6 judges who voted in favor of an En Banc rehearing (meaning that the case would be heard by all of the judges on the appellate circuit) did so because they wanted to OVERTURN PRECEDENT. Judge Sotomayor applied good, standing law; to suggest that she ruled the way she did as a result of her "feelings" is ridiculous and makes your analysis even less credible. It's also worth noting that Judge Sotomayor's history of rulings on issues involving race hardly indicates any antiwhite or pro-minority bias:

Posted by: nfjanette [TypeKey Profile Page] | June 30, 2009 1:03 PM

Following my argument that the exam was flawed, you ask "Is it, or are you arguing from an assumption that it must be flawed because of the outcome?"
I seem to have misspoken. The exam itself may not necessarily have had inherent problems, but the context in which the exam was used was, in fact, highly flawed. True, if the exam's results had been more equitable, we would not likely be discussing it on these pages today, but that would not change the flawed promotion scheme. Here's why this matters: a flawed exam that doesn't properly account for leadership intangibles is largely attributable to a very rigid union contract and some miscues on the part of a consulting firm, but it is not illegal. A flawed exam that creates a disparate impact is actually ILLEGAL under Title VII, as its disparate impact is not justifiable due to its focus on the minutiae of fire science knowledge rather than actual leadership prowess.

The volume of your writing is impressive, as is your knowledge of the history of the court. However, I don't need to write volumes to cut down your argument. You propose, simply put, that the promotion scheme should be structured in some way that allows the outcomes to be changed independently of the objectively measured written exams.

I am reminded of the position once voiced by a member of a Christian church on the subject of the "separation of church and state". He said that it was the church that should be most wary of too close a relationship with the state, for although at the time it may seem to facilitate some goals, in the future that same state could turn against the church and would have a tighter grip on the controls thanks to removing any legal and/or conceptual distances. Civil rights groups should think long and hard about getting into bed with government.

I do not want the state to have the arbitrary ability to place people in positions of public safety. I do not want the non-quantifiable, not-transparent, non-relevant components of testing for promotions that your proposal would require to produce the outcomes you desire when the standard testing results do not match some calculated quotas.

Again, I state my original question: How many more rounds of revisiting the test should be allowed?

BTW, is a "Fox News talking point" to be discarded without consideration? Should the same criteria be applied to NPR? I listen to the latter far more than the former, but I do so with an equal amount of critical thought.

Posted by: James | June 30, 2009 1:08 PM

@James FP

For the record, I do believe that, in this case, the city had little choice. If the promotions went through based on the exam results I have no doubt that the minority firefighters would have sued and been victorious in court based on legal precedent. Under that scenario I doubt that this would have ever made it to the SCOTUS. That being said, it did and SCOTUS set new precedent. It happens. So let's just agree to disagree on whether or not the decision was correct. It is what it is and will stand until it is revisited by SCOTUS at a later date possibly well after we are both long dead.

My real question is, James FP, do you live in New Haven? If so, how long have you been here? While cronyism and pandering may or may not have had an influence in this case are you actually going to argue that this behavior isn't rampant in New Haven? Do I need to trot out all of the examples of patronage, no-show jobs and the special treatment conferred upon supporters and financial backers of the mayor? Do you honestly believe that this is all a "straw man?" that only exists in Alito's overactive imagination? I've seen more than my share of evidence of corruption, political favors, cronyism, and good old machine politics. If you can't see it you're either thousands of miles away or extraordinarily naive.

Lastly, you're surprised, grief stricken that the Independent now carries the rallying cry of hateful conservatives. Why would the readership of the NHI change so rapidly overnight? Maybe we all drank some bad Cool-Aid and woke up with the overwhelming urge to listen to Rush Limbaugh and pine for the days of George Wallace? Or could it be that it's still the same people that were commenting a week ago; that even folks who are pretty staunchly left-leaning found this case to be a disturbing example of the misuse of Title VII? Is it possible that these comments are actually representative of the conclusions reached by compassionate, intelligent people who still found this case to be an overzealous application of a good law? You may have to come to terms with the fact that despite your superior intellect and clear grasp of all of the facts, legal and otherwise, that yours is simply a fringe opinion.

We seek to level the playing field. Not clear the field and replace it with players of our choosing.

Posted by: blue dog democrat | June 30, 2009 3:11 PM


As you choose to insert insults into your dissertation, and nicely put phrases in caps for those of us too ignorant to follow your learned treatise, let me write slowly for you to understand my response, as simple as it may be.

Justices are not "reactionary" if they follow the written word of the Constitution. Rather the liberal wing of the Court is the reactionary side as it creates law rather than interpreting it.

To say something is or is not constitutional should give weight to the Constitution, rather than precedent. Many laws today that are considered constitutional differ from the wording within the document itself. The fact that the Court determined that society would be better off by moving away from the intent of its authors, rather than the strict intent of the actual document, was their decision. This type of behavior was feared by Jefferson and others.

Many people consider Rehnquist to be one of our better justices, though I am sure you would disagree. That Kennedy voted with him most of the time is not a bad thing in most persons' eyes, as the US remains a moderately leaning society.

In re to Sotomayor, I was paraphrasing her words as to how she comes to a decision. I don't have the time to find the citations, but I think most of us have seen the video clips as to what I was referring.

In regards to the rest of your post, I believe that NFJanette and James answered adequately, both the compliments and the rebuttals.

Posted by: New Haven 20 | June 30, 2009 9:46 PM

We would like to express our sincerest thanks to all who have supported us in any way during this long journey for justice.

New Haven 20

Posted by: James FP | July 1, 2009 12:12 AM


I should clarify where I stand as far as what I believe to be the appropriate solution for this situation. In a nutshell, I believe that the City should at least have been allowed to present an alternative plan for remedying the disparate impact. As you may have gathered by now, I'm not a huge fan of these standardized tests. In his book "Outliers," Malcolm Gladwell insightfully proposes that standardized tests are only useful up to a certain point, which we can think of as a threshold of competence; past this point of technical expertise, hard-to-quantify characteristics like leadership ability, composure under pressure, and creativity become more important to job performance than mastery of minute details from the depths of a textbook. I think that we as a society have become too test-obsessed; while I do think that they provide an important tool, they are by no means an end-all, be-all metric. This is all meant to demonstrate an important component of how I personally would have like to have seen the situation resolved: I would have advocated a new test that merely established a threshold of competence, and a greater weighting of performance reviews and peer evaluations. Let's not forget that several black and hispanic firefighters passed the test, and were thus proven to be competent for promotion--they were only passed over because of a rigid and outdated formula. So I'd give the City permission to come up with a new test and formula, and if that yielded similar results, well, that's a bridge to cross if/when we get to it.
As for the NPR/Fox News issue, I certainly agree that all news sources should be considered critically, but come on, are you seriously suggesting that NPR and Fox are even in the same galaxy of credibility? NPR does tend to lean left, but even its left-leaning commentary falls far short of reaching the levels of extremism that have become commonplace on Fox News. Fox has, among other things, recently suggested that the EPA is witholding evidence disproving climate change (; don't even get me started on Glenn Beck and Bill O'Reilly's absurd statements. Fox News's talking points should get consideration, but that consideration should be commensurate with the network's credibility, which is running pretty close to zero right now.

I've been in New Haven since 2006. In that time, I've seen the murder rate drop, I've seen new schools open, and I've seen the groundwork laid for significant economic development that will pay dividends (figurative and literal) for decades to come. I've seen the City respond proactively and intelligently to the foreclosure crisis with the ROOF program, and I've seen the City's leaders successfully lobby to freeze property tax reassessment phase-ins when it became clear that they would be an unbearable burden to working families in the midst of this economic crisis. In short, I've seen some great things happen because of dedicated, forward-thinking leaders. My failure to see the "cronyism" and "corruption" that you refer to is probably the result of my reluctance to casually bandy about accusations of malfeasance rising to the level of prosecutable felonies. When I disagree with someone's politics, I generally avoid accusing them of being a criminal unless I either possess or am aware of solid evidence to back up such a grave accusation. Let's be honest here: if there were legitimate evidence of cronyism, corruption, or abuse of power, we wouldn't be sparring about it here, lawyers would be sparring about it in Court.
As for your statement that mine is simply a "fringe opinion," let me remind you that my opinion is just about identical to that of the eight federal judges who ruled on this matter at the trial and appellate court levels, as well as that of four of nine sitting United States Supreme Court Justices (including two appointed by Republican Presidents). I'd say that puts me pretty solidly within the mainstream of American legal thought. However, even if fewer Supreme Court Justices had signed on to the dissent, I'd say that time will tell whether my opinion is truly a "fringe" one. Consider a famous case that was decided by a 7-2 majority: Korematsu v. United States, which held that the internment of Japanese-Americans was statutorily and Constitutionally permissible. In this case, only one Justice, Frank Murphy, had the wherewithal to call this practice what it was: blatant, impermissible racism. By your standard, Justice Murphy's opinion would have been ultra-fringe, and yet today, it has become one of the most celebrated dissents in our rich history of Constitutional jurisprudence (along with John Marshall Harlan I's lone dissent in Plessy v. Ferguson). So, I must strongly disagree with the contention that my view is somehow a "fringe" one, and even if it were, that does not in any way detract from its legitimacy.
I also found it interesting that you took this case to be a "misuse of Title VII." This is decidedly not the first time that exam results have been discarded because of adverse impact, and Courts had previously upheld decisions to do so (see Kirkland v. New York State Department of Corrections and Bushey v. New York State Civil Service Commission). Furthermore, in the Bushey case, the 2nd Circuit said in no uncertain terms that voluntary compliance with Title VII was the preferred means of achieving its ends; that is precisely what the city was trying to do here. My point is this: would the commenters here believe Title VII to have been misused if the actions had been undertaken by any entity other than the City of New Haven? Somehow, I get the feeling that, had the exams not been discarded by the City, the "anti" crowd would have replaced Kimber's name with that of some Italian-American bogeyman and trotted out the same baseless allegations of "cronyism," "corruption," and undue influence.

Blue Dog,
I'm sorry you took umbrage at my reference to a couple of your views as "ignorant" and "naive;" perhaps I should have chosen less confrontational terms, but I stand by the justifications for my characterizations.
To consider nothing but the "written word of the Constitution" is overly simplistic; in considering the Constitution, we must also take into account the context and construction of the document and its Amendments, as this necessarily informs textual interpretation. I assume that you bring up Constitutional interpretation as a setup to a 14th Amendment equal protection argument; let me share my view on this. As Ramesh Ponnuru of the National Review (hardly a leftwing publication) points out, "[t]o conclude that New Haven acted unconstitutionally is to assume that the Constitution's 14th Amendment mandated a policy of strict colorblindness by state and local governments. Maybe it should have. But the historical evidence that it did is weak." This is an excellent point; as Akhil Amar has noted, "we need only see the date 1868 alongside the Fourteenth Amendment to understand its underlying impulse. This is a Reconstruction Amendment, and its words...should be read in light of the obvious evils that the 1860s reformers were aiming to abolish." The underlying theme of these evils was the systematic disadvantage of minorities, and the underlying impulse was hardly colorblind. Ironically, when you talk about strictly adhering to the "written word of the Constitution," you seem to substitute your own interpretation for the intent of the framers.
I'm sure there are plenty of people out there who consider Rehnquist to be one of the better justices. Perhaps they admire his consistent advocacy for prayer in public schools. Or his gutting of portions of the Violence Against Women Act in United States v. Morrison. Or his body of decisions in free speech cases, the vast majority of which "were hostile to the free-speech claims raised" ( I don't doubt that there are a lot of people out there who think that these opinions make Rehnquist a great judge. I just happen to think that these people are horribly misguided in their Constitutional analysis.
You also say, "[t]hat Kennedy voted with him most of the time is not a bad thing in most persons' eyes, as the US remains a moderately leaning society." I'm not sure how it follows that the conclusion that most people do not disapprove of a track record of voting an objectively VERY conservative judge follows from the premise that we are a moderate-leaning society. And even if it did, let's not forget that contemporary popular opinion is a pretty terrible barometer for measuring Supreme Court decisions, especially in equal rights cases. In such cases, the Supreme Court is perhaps more than at any other time a countermajoritarian institution; it is charged with being the last line of defense for minority rights in the face of majority rule. Of course the contemporary majority will disapprove of any holding that strikes down its rules: even Brown v. Board was met with broad discontent. But in cases that deal with protecting the rights of historically discriminated-against minorities, popular disapproval almost necessarily comes with the territory. So, to recap, Kennedy and Rehnquist are not moderates in the legal world, I wouldn't be surprised to find that substantial numbers of people do not disapprove of them, broadly speaking, and I don't think that lack of popular disapproval makes a lick of difference, especially when considering cases where the Court is called upon to act in a countermajoritarian fashion.
I'd like to see a single clip that provides conclusive evidence that Judge Sotomayor "substitutes her own feelings for established law." It seems to me that most of the clips that have been circulating around twist her words in an effort to make her out to be something that she is not. Let's face it, even Ken Starr has endorsed her confirmation and expressed his confidence that she will be "modest" and open minded in her approach to deciding cases ( Her confirmation will sail through, and rightfully so.

Posted by: blue dog dem | July 1, 2009 4:16 AM

"your assertion that Sotomayor uses her "feelings rather than the rule of law to adjudicate cases" is perhaps the most idiotic thing that I have read on here"

I think Sotomayor stated something about a Latina woman being better suited to come to a good decision rather than a white male. Where is the PRECEDENT in that?

I went to law school with people like you. Still on their mother's teet using daddy's trust fund to get by. Never having to work a day in their life if they didn't want to. Feeling guilty about being a bum. Then telling the rest of us how we should treat the less fortunate when we are busting our asses to make sure we don't become them. Nothing better to do than to become an academic because that is one way to pretend to have a job (not trying to denigrate all academics).

I went to school and have worked with people from all sorts of eco- and socio- backgrounds. Many came from extremely poor areas and did not need people like you to lift them out of poverty. They wanted to better themselves and they worked, usually harder than people more fortunate. They succeeded because they worked, not because of Title VII or any other program. They didn't need to level a playing field when they decided that they would dominate it.

... You go back to your books, your expensive toys and your smug lifestyle while we go back to work.

Posted by: William Kurtz | July 1, 2009 7:48 AM

BDD: The Constitution is only useful as a living document; its authors clearly recognized that changing times would challenge and test its principles and that future society's would need to revisit and revise it from time-to-time.

Thomas Jefferson, in fact, explicitly mentioned the need for periodic repairs.

Read this
for an illustration of the futility of bowing down at the altar of 'original intent.'

Posted by: citizen | July 1, 2009 8:08 AM

Enough is enough let it go they won give them their ranks and move on. He said she said is not going to change anything, NH has learned a lesson and maybe the tests should be given by New Haven and the outside testers should go away who cares if the fire truck is parked whereever as long as they are saving lives while houses our on fire give me a break to much crime going on in this city worry about that and save these kids from being shot in the streets and Fair haven needs to stop with the traffic stops and see who is shooting who another shooting in Fair haven last night. 6/30/09

Posted by: nfjanette [TypeKey Profile Page] | July 1, 2009 12:25 PM

As for the NPR/Fox News issue, I certainly agree that all news sources should be considered critically, but come on, are you seriously suggesting that NPR and Fox are even in the same galaxy of credibility?

No, but let's agree that (from my brief occasional glimpse of TV) FOX clearly has NPR's back to the wall with regard to entertainment value (comedy and modeling pageants both presented as news reports).

Posted by: James | July 1, 2009 2:37 PM

@James FP

I promise, this is the last time I will respond ..

First of all, you laud the Mayor and his administration for bringing the murder rate down. Yet violent crimes have been on the decline nationally since at least 2001. This is not a dissertation, so you'll forgive me if I don't cite sources, but assuming you accept that fact, let's go from there. The decline in violent crime cannot be directly or even indirectly attributed to the administration any more than unseasonably warm weather can be attributes to them. I would have you look at the number of arrest, convictions, and firearms seized but New Haven is one of a very few major metro areas that chooses not to contribute crime stats to the FBI database. Name for me one initiative or action taken by the administration that you can reasonably link to the decline in murders. Of course you can't prove causation. I can't expect even a great mind such as yours to do that. Just something that could be positively correlated. I'll have you keep in mind that while this murder rate was going down we had our department investigated and partly broken up by the federal government, the cessation of community policing efforts, and the eventual-though-late removal of the Chief of police. Also note the armed citizen patrols, the call for the State Police to relieve the PD, and the closing of several substations.

As for the building of schools, any schmuck can raise taxes and build schools. Yet our schools are still terrible performers when judged on pretty much any level. Graduation rates are low, test scores continually show our students performing below their grade level. Yes, I know how you feel about standardized tests and I agree. But please give me an objective measure by which to meter the performance of schools that you do approve of and tell me that New Haven schools aren't terrible. Would it have been better to spend that money on education reform? If you build a shitty mousetrap do you build more factories to build more shitty mousetraps or do you spend that money learning to build a better mousetrap and then expand your production capabilities?

As for economic development, the resurgence of urban centers has been a national trend for going on 15 years. This is proimarkly a function of demand and not government intervention, but that's an opinion. Let's stick to facts, or at least measurable indicators. Would you attribute this national trend to the powers of Mayor DeStefano? I would argue that while the Mayor has presided over economic expansion he has done little to exploit or manage this trend and deserves very little credit for being present when market forces begin to favor urban centers. If fact, I would suggest that Mayor D has terribly mismanaged many of these opportunities. Take, for instance, the Smilow Cancer Center. Despite State approvel, the Mayor blocked this facility which would create hundreds of jobs at all levels for many months, endangering an incredibly important project and the greater public good for concessions that benefited him and his labor supporters. At the very least, he did nothing to foster that relationship. As for the groundwork you've seen laid that will pay dividends, congratulations on your ability to see into the future. So far all I have seen are ill advised ventures than have yet to bear or show any signs of bearing fruit. To what groundwork do you refer and, barring your status as a seer, what makes you so convinced that these ventures will be successful?

What else? What fantastic ED initiatives has the mayor come out with? Can you name an instance where he courted business and expedited the process of bringing them to New Haven? I can name a few that he has failed to prevent from leaving New Haven. Can you give me a single example of the City successfully creating jobs that are not simply more government teats in the form of unnecessary city jobs at which the jobless may suckle? I see partially finished residential towers that nobody wants to live in. I see a mixed use building that is so large that it will be difficult to fill with viable tenants when we cannot keep the Financial Center or the Chapel Square Mall full. Have a look at the vacancy rates at our existing premier commercial properties. Show me one retail venture that has been successful that does not sell donuts or coffee. Show me any new retail that has lasted more than a few years at best. And please, leave out that small strip of high-dollar chachka huts that hawk crafts to visiting parents of Yalies. Show me the services and retail that are the lifeblood of an urban center (not to mention sales tax revenue). For each one I'll show you 10 empty store fronts. I'll show you 2 going out of business signs. I'll show you one doorway soaked in urine. I'll show you one massive hole in the ground where a project is supposed to go. On what objective measure other than your own prognostication and omniscient insight into development do you base your accolades?

But my favorite, my absolute favorite is your extolling John for "successfully lobby to freeze property tax reassessment phase-ins." Do you mean the very same ones he instituted in the first place? So, my property taxes were increased by 120 percent (no joke, 120.2 percent to be exact) by the DeStafano administration but I should be impressed by his ardent desire to postpone this financial ass raping? If I were to come to you and repeatedly smash you in the head with a hammer, would you praise me as a compassionate man when I stopped?

It's a bit cyclical, isn't it, Jimmy? You marvel at his wonderful school program that was paid for by the taxes he doubled on most city residents which he then sought to freeze, so now we're in even more debt.

What else do you have? Ah yes, your assertion that if there were actual corruption and cronyism in City Hall that we would be reading about it in the paper. It's a nice world you live in where all corruption is rooted out and prosecuted. All tax cheats are caught and made to pay penance. Where all the women are strong, all the men are good-looking, and all the children are above average. Please do let me visit some time. I'll just have to step over the homeless crack addict that lives in my doorway on the way out.

You seem to argue that as there are no prosecutions for corruption currently ongoing, there must be no corruption. Flawless logic.

For the record, neither corruption nor cronyism are necessarily illegal. A man can be corrupted without breaking any specific law. He can just be a bad man. A man in power can offer favors to those that can benefit his career without breaking the law. He can just be a run-of-the-mill scumbag. One can also break the law in a manner that is difficult to identify as an illegal action, or blatantly break the law and not get caught. I know that doesn't happen in the Lake Wobegon section of New Haven, but it's pretty common here in the non-imaginary world. How utterly naive you must be, bordering on stupid, to believe that the absence of prosecution proves the absence of crime, or at lease malfeasance.

Posted by: Doriss Day | July 1, 2009 5:01 PM

James, you are a genius. i could not have said it better myself.

Posted by: James FP | July 1, 2009 5:38 PM


Glad we could find some common ground :)


Sounds like anyone short of Superman would fail to win your vote. Urban economic development is an incredibly difficult task to undertake. A responsible official has to balance equity for workers with factors that appeal to business (i.e. labor costs, taxes, etc). As for education initiatives, I would suggest keeping up with the pages New Haven Independent. On April 28, NHI published an article discussing the Mayor and Reggie Mayo laying out the initial framework for major school reform. Essentially, it would allow top performing schools to continue doing what they do, support mid tier schools in their efforts to reach the top level, and clean out and rebuild failing schools. I'm not an education policy wonk, but the articles are and One very cool thing that I did notice in the articles: this "New Haven Promise" proposal. The promise of paying college tuition for New Haven's graduating high school students (provided they get good grades, behave well, etc.) sounds pretty good. But maybe that's just me.
As for property taxes, I will say this once, and once only. Taxes are needed to pay for things like schools, police officers, public works, etc. That is where the money goes. I think it's more outrageous that our federal tax dollars go to house prisoners on island nations in the south pacific than that our city tax dollars go to build schools...again, just my opinion.
Your account of my argument is simplistic, to the point where you make it sound utterly ridiculous. I never said that a lack of prosecutions is proof positive that there is no malfeasance. What I said was that you'd think that if abuse of power, cronyism, and corruption were as rampant as you say they are, there would have at least been an investigation at some point. Perhaps a complaint filed? As for the problems with the PD, it's a bit ridiculous of you to try to pin those on City Hall. If City Hall actually had that level of oversight over each lieutenant in the department, I get the feeling you'd be lobbing accusations of "micromanaging and not focusing enough on the big picture."
Which brings me to my next point. Your last apragraph was very telling. You say, "[h]e can just be a bad man. A man in power can offer favors to those that can benefit his career without breaking the law. He can just be a run-of-the-mill scumbag." Tell us how you really feel, James. What I thought was a generally respectful comment thread has turned into a hate screed.

Blue Dog,

Before I address the second part of your argument, let me just point out that considering that you have a law degree, you should know that a speech given at a conference focusing on the importance of a judiciary that reflects the society it serves neither rests upon nor sets precedent. And the point of Sotomayor's statement at that conference at Boalt Hall was not that white guys suck as judges, it was that all human beings are inevitably a product of their experience, and that is something that extends to judges. One's own worldview inevitably impacts the way we apply facts to the law. That's a fairly uncontroversial statement, conveyed with some words that were unfortunately all too easy to twist.

You mention having worked with people of all socioeconomic backgrounds, and give this as evidence that hard work is all one needs to succeed, and that Title VII is therefore useless. One problem with that, and I will use an example to illustrate. There were undoubtedly some people who made a great deal of money in the United States between the years of 1929 and 1941. Clearly, then, the Great Depression was purely a result of people being lazy and unmotivated to work, right? What I'm getting at is it seems to me that the people you met were outliers. Again, this in no way denigrates their hard work--indeed, they had to work hard to become outliers. But it's not wise to use outliers as the main guidance for policy.

I have to say, I had a good laugh when I saw your diatribe about me. You might be surprised to learn that I come from a union family (including an uncle who I'm very close to who is a card-carrying member of the IAFF), and that my brother and I were raised by a single mother. If I decided that I "didn't want to work a day in my life," I'd end up on the street--I don't come from the projects, but I don't come from Greenwich either. I don't own any expensive toys, I don't even own a car (because I can't afford one). I'm sure you've met plenty of people who suffer from liberal guilt, but I'm pretty sure I'm not one of them. But even if I were, I fail to see how that would take away from the validity of the ideas that I've advocated.

Posted by: William Kurtz | July 2, 2009 11:31 AM

Blue Dog,

Your interpretation of Judge Sotamayor's remark about Latina women is disappointingly simplistic; it's one thing to think she's wrong, and another to present a straw man of her point about judicial empathy.

What do you think of the comments of the male justices in the recent case about the 13 year-old girl strip-searched by school officials who thought she was hiding aspirin in her underwear? None of the male justices seemed to think it was any big deal so it fell to the Court's lone woman, Ruth Bader Ginsburg, to understand what it meant to be a teenage girl in that situation. Do you really think she didn't have a clearer understanding than her colleagues did?

Posted by: blue dog democrat | July 2, 2009 7:48 PM

Had to meet a quarterly deadline, so I haven't had time to read and respond.

To raise someone with such a knowledge as you possess is quite impressive. Your mother must be a wonderful woman. I disagree greatly with your views, but respect your ability to relate them in such a scholarly manner. You make strong points, but I disagree with most and we can leave it at that. I also am a strong supporter of unions, as long as they have the best interests of their members at heart. Most of my business is conducted on behalf of Teamsters.

William Kurtz:
I had a great discussion with ROBN about the Constitution a few weeks ago, and he and I agreed to disagree. There is nothing that either of us can say to change the other's mind, but I have never read anything in the letters of it's authors or the Federalist Papers to make me believe otherwise.

Posted by: blue dog democrat | July 2, 2009 9:30 PM


I try to keep my points simplistic as my days of writing theses are over, and this is too broad of an audience for such excess.

From your comment it appears you do not grasp my (counter)point. JamesFP wrote disparagingly of my empathy comment when Sotomayor has acknowledged how it affects hers (as well as everyone else's) viewpoint. His point was that she was following precedent (and I even put it all in caps, as did he) in the Ricci case. Empathy does not affect precedent, but one's personal belief. Precedent is the law, with no subjectivity.

A person may believe something based on their knowledge or experience, therefore having an empathetic stance towards this belief, but if precedent says the ruling should be different than this personal belief, and the justice is following precedent, then empathy has no basis in the decision-making process. Precedent is precedent and empathy, to the best of my knowledge, has never been referred to within a court decision.

In re to Ginsberg and the illegal search, what exactly has that to do with Sotomayor? I don't think anyone would argue that only Ginsberg would have a firsthand knowledge of what it would feel like as a young lady to undergo what the victim did. But this is not the same as a justice stating that she would make a better decision based on her experiences as a member of a certain ethnicity. I believe that a woman would understand female issues better than a male, and vice versa, but again, this has nothing to do with precedent. Ginsberg pointed the court in the right direction because there was no precedent for them to follow. So I really don't think your analogy is correct.

Posted by: jack | July 2, 2009 11:15 PM

The whole "Living Document" argument is simply a device used by those on the far left,to skirt around the Constitution,and not have to go threw the bother of convincing their fellow citizens of their position, and amending it.It is the last refuge of rogues who desperately want the Constitution to say what it dose not say,and not say what it dose.

Posted by: William Kurtz | July 3, 2009 10:23 AM


Thanks for expanding on your ideas. I would respectfully recommend reading more extensively, particularly from the writings of Thomas Jefferson who I again point out, was explicit about the need to revisit the Constitution in each generation. In fact, he believed it needed to be re-examined every generation, which he defined as 19 years:

No society can make a perpetual Constitution or even a perpetual law. The earth belongs always to the living generation . . .Every Constitution, then, and every law, naturally expires at the end of nineteen years. If it be enforced longer, it is an act of force and not of right.

From The Life and Writings of Thomas Jefferson (ed. Samuel Forman).

The quotation is from the paragraph headed 'Constitution' on page 175. That section is from one of Jefferson's letters to Madison in 1789.

Jack: As indicated above, there's better historical support for the idea of the Constitution as a document whose interpretation needs to evolve with the times than there is for 'originalism' which is a delusion of the far right.

Posted by: blue dog dem | July 3, 2009 12:21 PM

I actually am very familiar with Jefferson, having been raised in VA, and studied his works extensively. A picture is mounted in my kitchen of his last sitting portrait.

While he said that the Constitution should be revisited, it was to be done so "by the people" and not "the Despotic Branch." Since you are so familiar with his works, you recognize his title for activist judges. Even 220 years ago, Jefferson warned of judges who would mold the Constitution into "a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please."

That is why the Constitution has Article V, so that we, the people, can amend the Constitution by popular vote, and not by the majority ruling party or activist judges.

Posted by: blue dog dem | July 3, 2009 12:31 PM

WK, to continue a thought:

The Federalist Papers, as the definitive explication of our Constitution's original intent, clearly define original intent in regards to Constitutional interpretation. Founders James Madison (our Constitution's principle author), Alexander Hamilton and John Jay, published the Federalist Papers in order to clearly delineate the parameters of the proposed Constitution.

In regard to the role of the judiciary, Federalist Paper No. 73, notes, " being often associated with the Executive...might be induced to embark too far in the political views of that magistrate, and thus a dangerous combination might by degrees be cemented between the executive and judiciary departments. It is impossible to keep the judges too distinct from every other avocation than that of expounding the laws. It is peculiarly dangerous to place them in a situation to be either corrupted or influenced by the Executive."

Federalist No. 78 further notes, "[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment...liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments."

And in no uncertain terms, Federalist No. 81 makes abundantly clear, "[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution...."

George Washington advised, "The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, 'till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all."

Today, Justice Antonin Scalia says of judicial activism, "As long as judges tinker with the Constitution to 'do what the people want,' instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically."

Since the quotation you cite does not specifically state that justices should be allowed to make the Constitution a "living" document (and I cannot find any written substantiation from the founding fathers, other than something ambiguous such as your citation), yet find numerous citations to the contrary, I will remain an Originalist in my beliefs.

Not until the hubris of the Warren Court, following the lead of FDR, did the SCOTUS deem itself more brilliant than our Founding Fathers.

Posted by: blue dog dem | July 3, 2009 1:32 PM

To get back on point re the Ricci case, Charles Krauthammer wrote an excellent article today, stating better than I ever could the moderate point of view of this case.

Posted by: jack | July 3, 2009 9:00 PM

Thank you BDD,as an independent, it is comforting to know that not all Democrats are complete political whack-jobs.There is hope for our Republic yet.

Posted by: blue dog dem | July 3, 2009 11:32 PM

Mr. Kurtz,

I took some time to read the book you recommended and found even more quotations backing my argument. The one problem I have always had is when someone takes something out of context to prove a point. An honest mistake, but if you read the rest of the letters you would know that he despised the activist judiciary.

I suggest you read pages 276-277, in the letter to Mr. Jarvis, c. 1820 and also the letter to Mr. W. H. Torrence, c.1815 on page 175 (between the two quotes you provided previously) wherein Jefferson states emphatically that it is not the Court's right, but the right of citizens, to make the appropriate changes to our Constitution.

Also, he says that if the people are not able, it is not proper to take away their right to make the decision, but to educate them so that they become able to make the appropriate changes. I don't think his position could be more clear.

Posted by: jack | July 4, 2009 5:31 AM

WK, That is why the Constitution provides the instrument for it's own amending, the ballet box.

Posted by: jack | July 4, 2009 9:57 AM

WK Just out of curiosity, what is it about the Constitution that you think we have evolved beyond? Is it the document as a whole, or just certain parts? And if we have evolved beyond it,why are we still swearing our public officials to uphold and defend it.Would we not be better off just having a jurist who is wise and ethnic enough to just be able to "feel" how we should be governed? just asking

Posted by: blue dog dem | July 4, 2009 12:37 PM


Thanks for the nice words. Have a great Fourth and keep defending what's left of the Constitution.


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