Once again, Ruth Bader Ginsberg proves to be the Voice of the J Continuum

God love her. Though I still can't see how RBG and Scalia are supposedly personal friends; I guess they don't let politics get in the way, which in a way is admirable, and another way, kind of... blergh. I guess it's mostly admirable, but it's weird to me: "You have a fundamentally different view of justice, rights, appropriate behavior, and the roll of state than I do, to the point that where I see oppression, you see correctness, where I see sound reasoning you see soft-headedness, and where you see correctness, I see incorrect or wistful interpretation, and continuing of an oppressive system." I guess it's good -- and much needed -- to have friendship across political lines, but when it's someone like Scalia... It'd just be weird hanging with someone who not only differs with you on, say, whether or not the state should put people to death and what constitutes torture, but has and has used his position (quite correctly) to advance his views. (Like I say, it's of course correct for Scalia to do so, it just adds a creepy element to political disagreements, when you each have the power to make your stance part of the "correct" interpretation of the laws of the land.)

Anyway, Emily Bazelon returns to my good graces with this in her recent post on the recent Ricci decision:

Why all the competitive storytelling? The Supreme Court's ruling today will apply whenever cities try to base promotions (or, by extension, hirings) on a procedure that turns out to eliminate most or all of the minority candidates. This is called disparate impact, and Congress wrote it into Title VII in 1991. New Haven's test for promoting firefighters had such a disparate impact—that's one thing all the justices do agree on. The question is, What happens next? Can the city say, hey, we think there's another better way to make these promotions that won't leave us with a fire department led only or mostly by white people; now let us go figure that out? Until today, the answer seemed to be yes. Now the answer is clearly no. If a city in this position sees a disparate impact problem coming toward it like a right, it can only step out of the way if it has, as Linda explains, a "strong basis in evidence" for thinking that the test can't be defended—in other words, that the test it used is more job-related, and a better measure of performances, than the other measures of assessment it didn't use.

The city can't throw out its test even though the results allow for the promotions of no black firefighters because it would be making such a decision based on race or, as Kennedy writes, because "the City rejected the test results because the higher scoring candidates were white." He is treating the decision to throw out the test and start over as an absolute racial preference. Here is where the bad facts come in: Frank Ricci and the other white (and one Hispanic) firefighters who sued did what they were supposed to do. They studied for the test the city offered, and they scored the highest. But they didn't get the promotions they felt entitled to because no black firefighters scored as well. Justice Ginsburg points out that Ricci and his fellow plaintiffs "had no vested right to promotion." She's right. But to the majority, that doesn't really matter, because the majority focuses only on this test and this round of promotions in New Haven. And when you frame the case that way, Frank Ricci and his dashed hopes take up the whole screen. At which point, you think about justice for them and only them.

Ginsburg widens the lens. She goes back to the early 1970s, when African-Americans and Hispanics made up 30 percent of New Haven's population and only 3.6 of the city's 502 firefighters. This is when the black firefighters in New Haven started suing. Their efforts yielded much better representation among the rank-and-file in the department. But as Ginsburg says, not among the fire department's leadership: "The senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Departments' 21 fire captains is African American." (More from me about the history of New Haven's fire department here.) New Haven threw out the test results because it was trying to rectify that imbalance. To Ginsburg, this should surely be permissible—a city trying voluntarily to comply with Congress' 1991 mandate to address disparate impact.

And then, Ginsburg points out, the majority raises the bar for what New Haven must show to justify throwing out these test results. Kennedy dismisses as "stray facts" in the record the doubts raised about how the test was weighted—60 percent written, 40 percent oral—and the city's proposal to replace the test with an assessment center, which are designed to evaluate the particular skills needed for a job. But Ginsburg sees that the 60-40 weighting simply reflects the demands of the union—the same union that filed its own suit against the city in support of Frank Ricci. And she sees the merit of the assessment centers as an alternative measure. "Relying heavily on written tests to select fire officers is a questionable practice, to say the least," she writes. "Successful fire officers, the City's description of the position makes clear, must have the '[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.' These qualities are not well measured by written tests." No wonder, in Ginsburg's view, a 1996 study found that two-thirds of the cities surveyed were using assessment centers in making promotion decisions.

They make a good point that I've been (inadvertently) dancing around with my fellow discussants in other fora: the (reasonable) sympathy evinced for Ricci and his fellow white (and one hispanic) firefighters in this case is in conflict with the institutional history and less acute but nonetheless real plight of black firefighters in New Haven. And I would differ with my friend EssEee (Sean) who sees institutional racism as less of a problem than institutional discrimination against poverty; I guess part of my counterexample would be the various problems women have with equality of management positions, salary, and promotion (see i.e. Lilly Ledbetter), where the problems of disparity and inequality for women is, if not completely distinct from poverty, relatively so.

More on Ricci v. DeStefano from another forum

J-Friend EssEee said:

Jumping in late here... Has it been demonstrated in any valid way that the test was, in fact, flawed. Or is it merely a case of the results pointing to the possibility of a flawed test?
From my limited knowledge, it appears that the city said "This is the criteria used to determine promotions." and when the results came back and too many people of ... Read Morethe "wrong" race met the criteria, the criteria were changed. Without demonstration that the original criteria were flawed, it seems to be flagrantly a matter of discrimination.

J responds:
(as often happens, I don't get to my point until I ramble through a lot of "thinking out loud." As I occasionally do, I'm reposting the conclusion at the top because I think it contains a brief summary of all the words I wander through to get there. So feel free to read the whole thing, but here's the gist:)
So I argue: can one have a test that discriminates along race but is not itself discrimination or resulting from the structures of racism? I think this is unlikely. And if it is possible to use an alternative but equally or more valid test of ability that doesn't divide along race, how does that compare to the original? If the original is fair does that make the alternative "hyper-fair"? Or if the alternative is equally or more valid, does that mean the original is discriminatory? I think this is an important question to ask. Some argue that looking at the result they got in terms of race and saying you will re-test is discriminatory in itself. I argue that looking at the result and not re-assessing the evaluation to see if there's a better way to do it is racist, because if there's a better way to do it that doesn't end up segregating racially, that seems to de facto mean the original way is flawed. I mean, they can't both be true, can they? If one test yields more racially balanced results, and is a reasonable test of ability, but another test yields racially segregatory results, can this other test also be considered a reasonable test? How can two reasonable tests give different results? And if two reasonable tests do give different results but one favors racial equality, is it racist to demand that test be used (or at least such industry-common alternatives tried)? How do we analyze a situation like this (which seems likely to be what would happen)?

I will say that I'm somewhat rather swayed that those who prepped for the test extensively are owed some kind of recompense, because institutional racism is not their fault, but I don't know that they're owed a promotion. (And if I were ruling the world, the way they'd get recompense would likely be cuts in everyone's salary to pay for a proportional compensation for them, since it is everyone's responsibility in society to agitate for racial equality, though of course in real life, this would just make everyone hate everyone... though that seems to be likely in this case anyway.)

Well I'd challenge you on that EssEee, though I'm fairly sure you'll still disagree. The criteria for discrimination is "disparate impacts", that is, if different races are affected differently, there's a prima facie reason (to my understanding) for assuming discrimination. This was instituted such that people couldn't (consciously or unconsciously) ... Read Morediscriminate after Jim Crow was struck down by trying to tailor tests towards one race. It seems fairly clear, in this case, it *was* tailored towards whites, completely inadvertently, given that it tested (seemingly) esoteric knowledge of the characteristics of fire over practical experience, and the whites were MUCH more likely to be nth generation firefighters, and therefore to possess (or have easy access to) such knowledge.

To me the question I suppose is what do you count as discrimination? The biggest problem this day & age is institutional racism, imho, which is racism inherent in the structures of the society we've built today. You don't have 300+ years of de jure racism without a lot of de facto racism becoming part of the culture and its institutions. To me, there's a good argument for looking at all institutions critically from the standpoint of race & sex, because they were founded on assumptions of inequality, and getting rid of the *rules* of inequality doesn't ... Read Morechange that the institution was founded in it and therefore is likely to have understructures of power favoring one race or sex. In any case, the argument is that if a test affects one race completely differently than another (as seems the case here), it's likely there's a discriminatory factor. After all, there are 3 Occam's Razor type conclusions to be drawn: 1) The white firefighters are inherently more qualified (as measured by the test); 2) they worked harder as a group than Latinos and Blacks; 3) the test (likely unintentionally) exploited factors that aligned racially. The fourth, that it's random chance, seems unlikely given the numbers.

And one has to admit, I think, it's quite possible that the test did discriminate based on racially-aligned factors that are non-obvious . (I guess one of a more libertarian ilk might argue that's tough crap, that society is only responsible for intentional racism and inadvertently racially-aligned factors are not germane, but I could go on for two... Read More pages on why I think that's completely faulty reasoning.)
I guess I'd pose a couple questions on this basis: 1) Is it possible for the city to want to redo the test, purely based on race, because the test *in its results* seemingly discriminated? Aren't results that break too-neatly on racial lines automatically suspect, whatever the cause? In effect, is wanting to redo it simply because not too many of the "wrong" race met the criteria but because only ONE of the non-white races qualified? After all, that's the issue -it's not that the wrong people won, it's that one race all but COMPLETELY dominated promotions. 2) If it is automatically racist to want to redo it just because the test broke down (I would bet) non-randomly along the lines of race? (That is, I bet the chances of getting these results at random from a fair test is very low, so one must assume systematically lower qualifications among the blacks and hispanics or assume the test is inherently unfair.) If this is true, that it is racist to redo the test simply because a not representative enough x-section was promoted, in otherwise, racism can happen in advancement of a fair goal (equality in promotion), then it seems to me it must be equally true that it is inadvertent racism to presume a test is fair and that blacks and hispanics were systematically under-qualified. That is, if it's racist in the pursuit of diversity to re-do a test that, unintentionally or not, strictly divivded on racial lines, then to me it is equally (if not more) tenable to argue that a test that strictly divides along racial lines is de facto racist, unless it can be shown that there's not a different, equally or more valid way to conduct the test that does not break down on racial lines.

In the end, that is my understanding from Richard Thompson Ford of the law -- if there is a way to do it that does not break down racially that is equally or more valid, then it is discriminatory to use the method that does break down along racial lines, even if unintentionally. To me, there are two burdens of proof, a different one for each side: for those who want to redo the test, that the test is unfair in some way; for those that want to follow the results, to prove that the reason it broke down racial lines is skill-related. If both sides fail to prove their contention, I'd argue that the compelling interest of society in having its services reflect its own diversity carries the day. All this is to say, I would (I have to admit, at least now that I've considered all the factors) have to say it would be equally racist if only blacks passed and the test wasn't reconsidered. I mean, think of that -- would you assume the test was fair if only blacks and hispanics succeeded in promotions and only one, or no, white people succeeded? I would think that's suspicious on its face as well.

In the end, I think it is simply wishful thinking to equate "discriminating" in order to achieve racial balance the same as doing so to achieve segregation. One cannot correct a society that was biased along color lines through a color blind approach. You cannot expect all social starting points to be equal while Jim Crow (legal segregation) is still within easily living memory. MLK, often quoted for his "dream" of all living in harmony, did not seem to believe this would be achieved through colorblindness:

Many of the ugly pages of American history have been obscured and forgotten. A society is always eager to cover misdeeds with a cloak of forgetfulness, but no society can fully repress an ugly past when the ravages persist into the present. America owes a debt of justice which it has only begun to pay. If it loses the will to finish or slackens in its determination, history will recall its crimes and the country that would be great will lack the most indispensable element of greatness — justice.
o Where Do We Go from Here : Chaos or Community? (1967), p. 109

Can it be this "debt of justice" can be paid simply by ignoring race? That doesn't sound like in any way paying a debt to me. He further said:

If a city has a 30% Negro population, then it is logical to assume that Negroes should have at least 30% of the jobs in any particular company, and jobs in all categories rather than only in menial areas.
o from a 1968 Playboy magazine interview

This is certainly an "argument from authority," but I use it because MLK is so often used to argue for a race-blind society. Can anyone doubt from those two quotes alone that he meant for an equal society to come about by not challenging any institution that has, say, a 30% black population but not 30% blacks at all levels? That he would say the solution to that is not action and re-examination of the method of determining it, but simply, I don't know, hard work and better luck next time?

have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends.

This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God's children. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood.

So I argue: can one have a test that discriminates along race but is not itself discrimination or resulting from the structures of racism? I think this is unlikely. And if it is possible to use an alternative but equally or more valid test of ability that doesn't divide along race, how does that compare to the original? If the original is fair does that make the alternative "hyper-fair"? Or if the alternative is equally or more valid, does that mean the original is discriminatory? I think this is an important question to ask. Some argue that looking at the result they got in terms of race and saying you will re-test is discriminatory in itself. I argue that looking at the result and not re-assessing the evaluation to see if there's a better way to do it is racist, because if there's a better way to do it that doesn't end up segregating racially, that seems to de facto mean the original way is flawed. I mean, they can't both be true, can they? If one test yields more racially balanced results, and is a reasonable test of ability, but another test yields racially segregatory results, can this other test also be considered a reasonable test? How can two reasonable tests give different results? And if two reasonable tests do give different results but one favors racial equality, is it racist to demand that test be used (or at least such industry-common alternatives tried)? How do we analyze a situation like this (which seems likely to be what would happen)?

I will say that I'm somewhat rather swayed that those who prepped for the test extensively are owed some kind of recompense, because institutional racism is not their fault, but I don't know that they're owed a promotion. (And if I were ruling the world, the way they'd get recompense would likely be cuts in everyone's salary to pay for a proportional compensation for them, since it is everyone's responsibility in society to agitate for racial equality, though of course in real life, this would just make everyone hate everyone... though that seems to be likely in this case anyway.)

Daktari & J continued: Ricci v. DeStefano and I get errors when I try to post this in comments

Previously on this same Bat-Channel, D said:

OK, I'm having a problem following your logic here. So maybe you can try following mine for a minute. Black and Hispanic test takers did not score proportionately as well given their representation in the test taking pool as white test takers so the test was thrown out. (I assume that the single Hispanic plaintiff is the one who passed the exam.)

It seems to me that the racial imbalanced results have two possible origins: 1) the test was racially biased against black and hispanic test takers, or 2) it is the product of chance. Now, to the best of my knowledge, no black or hispanic test takers claimed that the test was biased at the time of the test. So any bias wasn't apparent to any of the test takers, regardless of race. All test takers were willing to wait on the results, presuming that it was a fair and balanced exam. Also to the best of my knowledge, no post-test analysis has been performed on the actual test taken to see if there is support for the claim of racial bias in the test.

Other than perfomance, there is no evidence to support the claim that the test was racially biased. So it must stand to reason that it IS the fact that no blacks made it to the "promotion level" that the test was thrown out. The city did not get the results they desired. What the hell? This case is going to go to the Supremes without the test in question even getting a once over by the people in a position to evaluate such tests?

I am sure you are right that there is residual institutional racism in the New Haven fire department. But it seems to me that the problem lies within the department's flawed policies. Change the policies if they don't give you what you want.

I for one cannot see the problem with saying that gender and racial representation should reflect that of the broader community. Therefore, half the firefighters should be men, x% should be black, x% white, x% hispanic. If you don't like that idea, then take a job somewhere else.

BUT, a handful of firefighters have been denied promotion based on the criteria that the city said it would use to promote firefighters. I hate the idea of an all white supervisory staff there, especially given the community's racial composition, but you can't switch boats mid-stream. I think these guys have a legitimate case.

The real issue for New Haven will be how to design a promotion policy that allows more equitable representation without being discriminatory against minority (for their community) ethic or racial groups.

Finally, didn't Ricci take 6 months off work to study for this test? Surely he, and anyone else who did similarly, must be seen as outliers. What happens to test results when you take these couple of fellows out of the analysis? Who know? Maybe the playing field does seem more level. There is too much unknown here to presume anything about the fairness of that test. However, it seems incredibly unfair to me that the criteria were established and agreed upon by all participants and then the rules change because the right people didn't win the game.

Will be interesting to see what the Supremes say.

J responded, here in a post body because his comments post refused to work:

Don't know that I entirely misunderstood you. I'm only half awake, but I don't think this particular policy constitutes a contract with its employees. I'm not sure how often supervisory positions come up, but seemingly not very. Besides which, promotions are (I would think) discretionary; sort of like tenure -- there doesn't have to be a particularly great reason to deny someone tenure. It can't be a purely discriminatory one, but it can be as simple as "you don't fit where we thought we were going when we hired you/when we told you that typically people with your track record of crazy hard work get tenure yesterday before the review". I mean, especially if this test is unrelated to the skills needed for the position, which is a quite arguable position (and one of the positions the black firefighters have taken). Clearly, it is not a "contract" in any absolute sense, as no one would say they were required to promote them if the deal were "we draw straws and whoever gets the longest straw gets promoted." If you then (rightly) decided that pure chance was a horrible reason to promote someone, I don't think you are breaching contract to refuse. (It may be "unfair" but again it depends on your perspective; in this case, it would be "unfair" to the supervisees and the city to have firefighters chosen by raffle when a better method could be devised to gauge quality.) Further, if the test does depend on white privilege, it could therefore be called discriminatory even if it were fair in the way I outlined earlier, that is, given sufficient backgrounding in the facts and culture, you could excel. Of course, that's the further problem -- the "contract" was that the top scorers absolutely get the promotions, not all those who passed any arbitrary cut-off. Most would agree that a written test cannot be the most effective way to determine a manager and firefighting supervisor. The agreement was for the written test to be everything -- and for having the highest relative scores being as important as high absolute scores. If the scores had been 99.9, 99.8, 99.7, 99.6, etc. and those first several were white, under the agreement as it was, they still would have to be the ones promoted -- even if those differences were within the margin of error and any number of other factors (20 years on the force vs. a well-testing greenhorn to make an extreme example) said that Mr. or Mrs. 99.2 should get promoted.

The problem is, you're of course right that if the test is "fair" then the employer shouldn't change midstream just because the results weren't what they wanted. But the law defines unfair as "ending up with a result affecting minorities differently when an alternative would work as well or better." That is, unfair for that exact circumstance, i.e. the test the white firefighters did better on is by default unfair if there is a difference in race and it can be shown that better practices could've been used for the test. Hence the tough spot the city is in -- the black firefighters may've had the law on their side had the city gone with the test because discriminatory results apparently automatically raise the possibility if not plausibility of a discriminatory test.

The problem to me is not whether or not you can change requirements mid-stream; if tomorrow the test were found to be a horrible predictor of skill, you aren't going to risk firefighters & civilians lives because of a tacit agreement with the test-takers. And if the test were obviously discriminatory, then the city would be within its rights you seem to be saying. The problem is, it's easy to (to me) to argue both sides, and no matter how you decide you may be "unfair" to one group. Fairness depends on where you stand, as does the test's discriminatory nature. In the end, the test is an attempt to make a qualitative process strictly quantitative, and that underlies the whole problem -- we can't reduce any of this to "facts" because almost every bit of it but the most basic elements are subject to interpretation.

D & J Discuss Firefighting Institutional Racism

Daktari (from this post's comments):

OK, I'm having a problem following your logic here. So maybe you can try following mine for a minute. Black and Hispanic test takers did not score proportionately as well given their representation in the test taking pool as white test takers so the test was thrown out. (I assume that the single Hispanic plaintiff is the one who passed the exam.)

It seems to me that the racial imbalanced results have two possible origins: 1) the test was racially biased against black and hispanic test takers, or 2) it is the product of chance. Now, to the best of my knowledge, no black or hispanic test takers claimed that the test was biased at the time of the test. So any bias wasn't apparent to any of the test takers, regardless of race. All test takers were willing to wait on the results, presuming that it was a fair and balanced exam. Also to the best of my knowledge, no post-test analysis has been performed on the actual test taken to see if there is support for the claim of racial bias in the test.

Other than perfomance, there is no evidence to support the claim that the test was racially biased. So it must stand to reason that it IS the fact that no blacks made it to the "promotion level" that the test was thrown out. The city did not get the results they desired. What the hell? This case is going to go to the Supremes without the test in question even getting a once over by the people in a position to evaluate such tests?

I am sure you are right that there is residual institutional racism in the New Haven fire department. But it seems to me that the problem lies within the department's flawed policies. Change the policies if they don't give you what you want.

I for one cannot see the problem with saying that gender and racial representation should reflect that of the broader community. Therefore, half the firefighters should be men, x% should be black, x% white, x% hispanic. If you don't like that idea, then take a job somewhere else.

BUT, a handful of firefighters have been denied promotion based on the criteria that the city said it would use to promote firefighters. I hate the idea of an all white supervisory staff there, especially given the community's racial composition, but you can't switch boats mid-stream. I think these guys have a legitimate case.

The real issue for New Haven will be how to design a promotion policy that allows more equitable representation without being discriminatory against minority (for their community) ethic or racial groups.

Finally, didn't Ricci take 6 months off work to study for this test? Surely he, and anyone else who did similarly, must be seen as outliers. What happens to test results when you take these couple of fellows out of the analysis? Who know? Maybe the playing field does seem more level. There is too much unknown here to presume anything about the fairness of that test. However, it seems incredibly unfair to me that the criteria were established and agreed upon by all participants and then the rules change because the right people didn't win the game.

Will be interesting to see what the Supremes say.

J responds:
Don't know if you read my prior post and the linked piece by Richard Thompson Ford. But the choice between "it's racially biased" and "it's random chance" isn't so easy as it appears. That is, it doesn't have to be racially biased in a way most would recognize ("these are questions black people somehow are less likely to know the answers to") but rather "the test (possibly inadvertently) gives advantage to whites based on greater access to certain types of knowledge -- the institutional history of most of them being nth generation firefighters whereas almost none of the blacks are anything but 1st gen. firefighters". It also -- the linked article makes this point -- relies strongly on "book learning" of (almost seemingly esoteric) knowledge of fires that doesn't apply to the job at hand to a high degree.

"Switching horses in midstream" is really not a concern to me. After all, fighting discrimination is by definition switching midstream. You don't get to benefit from it just because it seemed fair at the time.

It rather seems that the test was "fair" in that given the same amount of studying and background in firefighting, anyone could do as well. There are two parts to unpack here: one is that the white firefighters seemed to have a greater interest (due to family history and culture seemingly) and greater background in the "book aspects" of firefighting and thus did better on a test of such aspects; two, even presuming it was "fair", the law around discrimination (as I understand it from R. T. Ford) is that, if there is an equal or better way to test for skills related to promotion that would be less likely to result in disparate impacts, it is essentially a discriminatory act to use the test that ends up with disparate results.

That is to say, no one (except the firefighters who passed) argues that this test was the best way to determine their suitability for promotion. If there is a test that would better test such suitability, it should be used and this test should be thrown out. Since the test was not based on actual comportment in the field, people skills, or operational knowledge rather than memorized knowledge, one can easily (in my opinion) argue that it's not the best way to test for promotions. Whether or not discrimination was intended, if there is a better way to test for suitability that would end up with less disparate results, it should be used and this thrown out.

don't know if you read the articles linked in *this* post, but the test hasn't been publicly examined because it's proprietary and the company and city's contract doesn't allow it to be released. But the description makes it quite seem to me that the test is fair in the ways I described. But, that's the point of institutional racism -- you can set things up that are nominally "fair" and use them, inadvertently or purposefully, to end up with disproportionate results. Such disproportionate results are inherently suspect, and if there is a different and plausibly better way to do things, then they should be done that way, whether or not the intention was to discriminate.

It seems to me like this test was a case of "white privilege" -- the white firefighters in this case benefited from culture and history in a way they had no control over, but in a way that would tend to maintain a discriminatory status quo. As I said to my white colleagues at Procter & Gamble -- if you reasonably believe in equality, then in certain zero-sum situations like promotion, you *have* to believe that whites will be promoted less often then now. you can't both maintain the status quo of disproportionate power and achieve equality. And like the original SATs, which appear fair but which were explicitly instituted for discriminatory purposes (originally to keep out Jews, though it didn't work very well), you can't argue to maintain a seemingly fair solution if there are better solutions, especially when the present one, even unintentionally, holds people back.

And I completely agree with you on making things reflect community %ages, but people argue that a) this is a quota (which it is) and quotas per se have been illegal for a while now, and b) that this means "unqualified" people (minorities) will get in, and if you require some "basic" competence, then you return to defining what this competence is, and you almost never end up with a "basic" test favoring minorities (historically speaking, and if you do, you get lawsuits like this).

I guess this is one of the reasons I feel so strongly -- this to me is a case of white privilege, where the racism is not intentional or obvious, yet to leave things status quo means perpetuating "hidden advantages." I would propose that everyone taking the test get equal access to studying resources, but even then, the nth generation firefighters have an advantage, and since almost all several-generation firefighting families are white... well, there you go.

It's prickly, and hard to explain in writing for me, but by your definition, essentially, the white firefighters are as a group outliers (which is statistically an inviable proposition I'd say). Of course, the criteria established and agreed upon were not by "all participants" but rather by the union, on behalf of "all participants," but then, the union is majority white and split on racial lines and supporting the white firefighters. Hardly a good way to establish "criteria agreed upon by all participants."

If it only turns out after the fact that the "right people" didn't win the game, when the game doesn't necessarily test the most pertinent skills, then it seems to me that changing the rules is not unfair. There is no right to a promotion, and fairness is not "holding the rules steady" per se; like I said, if fairness were simply constancy of rules, then rules couldn't be changed in the face of discriminatory results. There is more to fairness than constancy, and not all institutional barriers are obvious before they are smacked right into.

Firefighting in black and white: More on Ricci v. DeStefano (aka the New Haven Firefighter Case)

This continues an earlier J-Continuum/Anekantavada discussion about the discrimination case before the Supreme Court of Ricci v. DeStefano. Again on Slate, an article does a pretty good job covering a lot of the relevant territory. Although I won't get into it now in any depth, a couple of facts together seem to me to point to why the city got it right in throwing out test results and denying promotions to everyone from that round of testing (i.e. mostly white, one Hispanic, and no Black promotions would have resulted):

a) In their entries, Allan and Bazelon lay out a still-common history and present of discrimination against minority firefighters, such that majority Hispanic and Black neighborhoods have had and often still have majority white firefighting forces, and even further, have stratification such that the supervisory levels are quite disproportionately white, along with

b) In this case, the white firefighters are predominantly from almost-totally white neighborhoods (~95% white) outside of the city they serve, New Haven, while the minority firefighters are mostly residents of the city. In entry exams, city residents get a slight (5%) advantage, on supervisory applications, there is no preference for those who live in-city. (It seems to me that living in the place you serve as a civil servant is a logical thing to preference for, if not require or distinctly advantage -- there's something to debate here, but I think you should be an explicit member of the civic community you supposedly serve for a variety of reasons, and the very least, this should likely be preferenced/encouraged in perhaps positive-incentive ways if it were not to be required). Further, in this specific case, allegedly some of the white firefighters "joke on the phone about 'working in the ghetto.' [Black, female New Haven Firefighter Erika Bogan asked] 'How dare you, when you live in Madison or Guilford, come in here and take our money and go back to your communities and talk shit about New Haven?'" I don't know that this has entered the case, but such casual disdain -- even as a joke -- speaks poorly of a white "civil servant" who doesn't even live in the place he's "serving." (It just compounds the problematicness of the whole thing -- at least if he lived in the "ghetto" he'd have the social "right to speak" ill of it by being a part of the community, rather than an "outsider" ridiculing it.)

c) The tests were based almost wholly on memorization and technical details of firefighting, items which don't even (apparently) apply to the majority of cases faced by the New Haven dept. (which are emergency calls, often medical in nature, according to the article). In other words, the tests don't have an apparent relationship with the actual on-the-job performances and requirements of firefighting in New Haven.

d) The firefighter's union chose to support Ricci (the white firefighter), despite accepting dues from all the firefighters, of all races; when a court ruled they couldn't back Ricci in court, they still spent union funds supporting his case, despite protestations (and an impending suit) from Black firefighters. This seems to me to constitute another form of institutional bias; it clearly should've sat out of this case in this manner, attempting to see the interests of all of its members. (One could argue it sees this supposedly "neutral" test to be in the interest of all of its members, but when the vote went straight down racial lines, it seems to me paternalistic and institutionally (i.e. not individually or purposefully) racist to then honor the requests of the majority-white vote.

e) The way the test was designed and conducted -- little input or review by outside experts (to avoid potential cheating, apparently) and out of step with what appears to be best practices in many other municipalities -- seems to me to further indicate the possibility of systematic unfairness and, importantly, to indicate that it is not necessarily the best way to determine promotability. This is one of the cornerstones of the "disparate impacts" bit of discrimination law -- if there's a better way to assess ability that is less likely to affect races differently, then (from my lay interpretation) it appears the city did the right thing in vacating the test.

f) Scalia apparently said at oral argument that he doubts the city would've done the same thing had the situation been reversed and almost exclusively black firefighters got promoted. ARGH. That just sounds so FUCKING ignorant to me. For one thing, that seems unlikely -- actually, if someone can point out an example of that happening, I'd like to know, because the very fact that all blacks doing better than all whites on a job exam seems to be rare if not non-existent points to me to the persistent and lingering problems of institutional racism, which is the very spur for the city's interpretation of the law that Ricci is challenging. Besides which, if that happened, wouldn't the white firefighters seem likely to challenge it? And wouldn't they, perhaps, have a point? One cannot simultaneously maintain that the white firefighters would be right to challenge the results in that case, and that they are right to challenge it in this case, without the logical implication that the point is that the white firefighters are entitled to do better automatically. And the white firefighters would likely be right to challenge it should the results have been nearly all-black. And if the city's behavior in THAT case would possibly be illegal, it is possibly illegal in this case. To be logically consistent, if he's going to find for Ricci in this case, Scalia would have to think that a case where only blacks were promoted would be prima facie legal, I think. (Despite the Latin, I'm not making a specific legal claim since I know nothing about the practice of law.) Bottom line: that sounds potentially discriminatory to me. In the end, this objection sounds suspiciously like "Oh, the city is just too obsessed with promoting BLACK PEOPLE," which is a stone's throw from "Political Correctness is ruining us all" and a good ways down the road, but on the same road, as calling them "Nigger lovers." Really, Scalia just disgusts me with that (though I know that's in part visceral and not logical, but it still, to me, trades on racial anxiety in a deceitful way.)

Anyway, I actually did talk at length about all that. Ooops. Time for showering and eating and writing actual academic work.

So, I'll leave off here with a quote from what seems to me to be a (rare) exceptional bit of writing from Slate (and an exception to much of Bazelon's recent production, despite my overall fondness for her as a writer based on memories of articles I liked long ago):

To young black firefighters like Mike Neal and Erika Bogan, that sounds like a solution. "We want to be on a level playing field," Neal says. "We want everything to be given to us on our merits." Ricci's group, on the other hand, feel as if they've already earned their promotions based on merit. They did what the city told them to. It's hard to imagine how they'll feel right about starting all over again.

Neal and Bogan's conception of merit is different from Frank Ricci's. It's easy to see why. Ever since the test results came out, the black Firebirds and the white plaintiffs have had opposing interests. Stretching back further in time, back over the decades, the two groups also see the history of the department through a different lens. For Frank Ricci, the past is a story of ethnic heritage and family pride. For Mike Neal and Erika Bogan, it's a story about breaking the lock on hiring that kept their people out.

Maybe promotions based on an assessment center would serve the city better, in the long-run, by testing for the abilities fire captains and lieutenants most need. Or maybe there are just a lot of firefighters well-qualified to do these jobs and a scant number of openings. "It seems like guys on both sides of the line feel like they've been cheated, like there just aren't enough positions to go around," says William Gould, the white captain. He supports Frank Ricci. But he can see what this fight looks like from the other side. If New Haven could start over, maybe it could also admit outright that it has more deserving firefighters than it has rewards. The city could come up with a measure for who is qualified for the promotions, rather than who is somehow best. And then it could choose from that pool by lottery. That might not exactly be fair, either. But it would recognize that sometimes there may be no such thing.

Point, Counter-punch

An interesting contrast of two articles on Counterpunch recently.

Nadia Hijab writes in "Small Changes Within the Confines of the Establishment: The Obama Difference:

Many have read much into Obama's speech - that was part of its genius - but it contained no policy announcements. That does not mean there are no policies. The Obama administration works differently from its predecessors in at least three ways... it doesn't do business on the basis of public pronouncements, the Obama administration speaks with one voice (the same tough line - settlements must stop, peace must start - is delivered by Mr. Obama; Vice President Joe Biden, who used to call himself a Zionist; Hillary Clinton, the former stridently pro-Israel junior senator from New York; Rahm Emanuel, who twice volunteered for the Israeli Army; the national security adviser, General James Jones; and the special envoy, George Mitchell), and this is an administration that does its homework. So, yes, nothing has changed on the ground yet. But because of the way it works, the Obama administration has a much better chance of bringing peace to the Middle East than its predecessors. Still, before breaking out the champagne, remember that Mr. Obama works within the boundaries of the American establishment. Within those narrow confines and given the present Israeli-Palestinian power imbalance, the Palestinians are likely to secure a bare minimum of rights while Israel walks off with the rest. Unless, that is, the Palestinians can rapidly tilt the balance in their favor - or unless Israel's intransigence does it for them.

In contrast, (though not strictly speaking, in complete opposition), Jennifer Loewenstein writes in "New Rhetoric for the Coloner-Settler Project: How Much Really Separates Obama and Netanyahu?":

Benjamin Netanyahu and Barack Obama have one thing very much in common: both of them have nearly the same vision for the future of “Palestine”. They may not recognize it yet, but sooner or later, whether Netanyahu remains in power or is replaced by someone who speaks Dove-Liberalese better, they will shake hands and agree that the only thing that really separated them in the early months of President Obama’s administration was semantics: the language each man used to describe what he saw for the future of Palestine, or “the Israeli-Palestinian conflict” –a phrase that suggests there are two sides each with a grievance that equals or cancels out the other’s and that makes a just resolution so difficult to formulate. How deeply have we been indoctrinated. If President Obama’s speech in Cairo signified anything, it was that the likelihood of a dramatic shift in United States’ policy toward Israel in the coming years is almost nil... Barack Obama has sent Benjamin Netanyahu the message he most seeks, whether Netanyahu recognizes it or not: continue your colonial-settler project as you have been doing; just change the vocabulary you use to describe it. Then nobody will get upset or notice that the status quo will persists. In the meantime Nasrallah and his followers in Lebanon will be shaking their heads in disbelief at the service Obama has just performed on Hizbullah’s behalf.

Loewenstein lays out the numerous problems Obama didn't address (such as the "illegal use of white phosphorous on the densely populated neighborhoods of Gaza City and beyond? The cluster bombs and fleschettes? The rocketing, fire-bombing and bulldozing of entire neighborhoods? ...[Israeli Defense Forces'] attack on hospitals, schools, ambulances, UN buildings and shelters, food warehouses, businesses, factories and family homes... [Israeli opposition to] the UN fact-finding mission on the commission of war crimes during its relentless assault... [the] planning [of] Operation “Cast Lead” six months prior to its beginning, or when the ceasefire was still in effect... the cantonization of the West Bank into a series of disconnected ‘island’ villages and towns; the de facto annexation and militarization of the Jordan Valley; the encirclement of the economy-stripped Palestinian enclaves by the annexation wall whose boundaries incorporate the theft of the best agricultural land and resources in Palestine for Israeli use only; The status quo grid of interstate, “Jewish only” highways connecting the settlement blocs to Israel so that they are inseparable and indeed indistinguishable from the Jewish state itself..."), and an allusion to the Palestinian casualties during Operation "Cast Lead", estimated to 1400, 85% of which were reportedly civilians. In contrast, I remember hearing on NPR casualties among the Israelis from rocket attacks; I feel like it was around 100-200 max. This references the one other thing I wanted to bring up: to me, there comes a line, a line VERY SOON, where the number of people you're killing as "collateral damage" (nominally untargeted civilians) becomes an equal horror to the number of civilians the other side may kill intentionally ("terrorism"). Chomsky discusses this a lot in other contexts (as well as in this one), calling the civilian casualties of (often "just" wars) "state terrorism". Call it what you will, I don't excuse it. A life is a life is a life to me -- especially in the case where the life snuffed out is not the one who attacked you. That it is a countryman or countrywoman of the person who attacked you is as immaterial as when civilians are intentionally killed and it's justified by pointing out their collusion or support of attacks on another aggrieved party in turn. If we claim only military targets are justifiable targets, we cannot simultaneously claim that military attacks killing large amounts of non-military citizenry is justifiable.

But of course, we do. Hiroshima and Nagasaki nominally had military value, but were entire cities. But the justification to this day is that it prevented later heavy casualties. So how come it's ok to kill civilians when the cause is important enough to us but it's not ok when the cause is important enough to others? (Not that I think it's ok in either case, but I'm asking for moral consistency on our part. Silly, perhaps -- but hypocrisy, to me, cannot be morality.)

I've wondered afield here. Go read the Counterpunch articles.

Um... Happy Monday?

Silence is the enemy: Marching orders from Comrade PhysioProf

From Comrade PhysioProf this morning:

This morning begins a coordinated blogospheric effort to draw attention to the ongoing horror of mass rape of women and girls in Liberia, which continues despite the end of civil war:

Jackie is too young to remember the 14-year civil war in Liberia, from 1989 to 2003, when as many as three-fourths of women were raped. Jackie’s world is one of a bustling, recovering Liberia with a free press and democratically elected leaders.

Yet somehow mass rape survived the end of the war; it has been easier to get men to relinquish their guns than their sense of sexual entitlement. So the security guard at Jackie’s school, a man in his 50s, took the little girl to the beach where, she said, he stripped her and raped her. Finally, he ran off as she lay bleeding and sobbing on the sand.

Mass rape and torture of women and girls also continues in the Congo:

Nothing I have heard or seen compares with what is going on in the Democratic Republic of Congo, where corporate greed, fueled by capitalist consumption, and the rape of women have merged into a single nightmare. Femicide, the systematic and planned destruction of the female population, is being used as a tactic of war to clear villages, pillage mines and destroy the fabric of Congolese society.

In 12 years, there have been 6 million dead men and women in Congo and 1.4 million people displaced. Hundreds and thousands of women and girls have been raped and tortured. Babies as young as 6 months, women as old as 80, their insides torn apart. What I witnessed in Congo has shattered and changed me forever. I will never be the same. None of us should ever be the same.

A number of bloggers are coordinating our efforts to call attention to this horrible situation and mobilize activism and financial support to end systematic mass rape in Africa. Here are some things you can do:

(1) Visit the blogs of Isis the Scientist, Tara Smith’s Aetiology, and Sheril Kirshenbaum’s The Intersection. They will be donating their revenues for page views to Doctors Without Borders, and they will be posting on an ongoing basis about this situation.

(2) Donate to Doctors Without Borders, who are leading the effort to provide medical treatment to women and girls who have been grievously harmed.

(3) Write to your representatives and senators in Congress to urge them to use the diplomatic power of the United States to end this horrible situation. You can use this directory to obtain the contact information for your representative and senators by typing in your zip code.

(4) You can blog about this yourself to call attention to our efforts.

Original post here.

Doctors Without Borders

Congressional Directory

I almost feel like this shouldn't be necessary, but it seems like all the news Americans ever hear out of Africa is about victimhood and horror. So a couple of bits of news to remind us all that, there are many troubles in Africa, but that she is diverse and vibrant and evolving, like everywhere else, despite the difficult history, and present, of the continent:


S. Africa's 'Breakthrough' Succession Case
Ruling in Favor of Woman in Chieftaincy Dispute Seen as Victory Over Patriarchal Tribal Traditions

Phyllia Tinyiko Nwamitwa is one of the very few women among South Africa's 750 or so traditional leaders. (Photo By Karin Brulliard -- The Washington Post): Buy Photo

Togo institutes truth and reconciliation commission

Burundi senators reject bill criminalizing homosexuality
The government of Burundi's latest move comes in the context of considerable hostility to homosexuality in the East African region. Two-thirds of African nations maintain criminal penalties for consensual same-sex behaviour.

Tributes to a fallen giant
'He was a giant by any measure. He was genuinely committed to the liberation of our continent. Maybe after all, it was no coincidence he passed away on Africa's liberation day! Tajudeen kept the universal torch of Pan-Africanism alive.'

To be certain, not all good news -- but a more diverse look at news and an Africa on the ground that is similar and different to our world in ways we don't commonly appreciate. A last sample: although there is the "good news" of a program of activism against gender violence in South Africa, a variety of other stories of struggle, success, survival, hope and despair is available on Pambazuka News, "A weekly forum for social justice news in Africa".

Homework:
(a) Take action on the persecution, rape and torture of women in Africa.
(b) Find your own source of news about Africa that gives a holistic picture, positive and negative, everyday life and quotidian problems as well as the grand divides and challenges. It's harder than it seems! Report back, and show your work.

The Tragedy of the Hardin

Odds are, you've heard of the "tragedy of the commons." (If not: Let Google be your guide.) The (contemporary) source of the idea is an article written by ecologist Garret Hardin some time ago, laying out the seemingly logical proposition that (at base) -- people in a community will inevitably abuse a shared resource in order to try and maximize their personal use of it, such that the shared resource will eventually run out or be otherwise denuded.

Although in my own research, I've certainly read of cases where that did happen, it certainly is far from true that that always happens, or that the only ways to prevent it are: a) government coercion/restricted access, or b) complete privatization. He argues that one cannot rely on conscience or cooperation to regulate the wise use of a commons, as selfish people will inevitably exploit it.

We all know cases where such exploitation does happen, again, but it certainly isn't an "inevitable consequence" as Hardin implies. (A mentor of mine has re-phrased Hardin's proposition as "The tragedy of the privately owned sheep" -- based on the case Hardin used as an example, that of English peasants herding sheep with a commons providing forage for the sheep. Of course, if the sheep were raised in common for the village, it would again not be in their interest to denude the commons, theoretically bringing the system back in balance -- and certainly, it's easier to tell who is eating extra sheep and thus "conscience" and social pressure seem more likely to rule in that case. But I digress.)

Although the argument has grown considerably more complicated since Hardin (and I suspect before as well -- he was hardly the first to think of this), the raison d'etre of this blog post is this article here, pointing out that as written, Hardin's piece offered no actual proof, real-life context, or other essential elements of scientific reasoning, yet it has been hugely influential and widely quoted. The author implies that this is because it could be used to justify pre-existing prejudices, which it certainly did so for Hardin, who himself was something of a eugenicist and rather worried about the population growth of the poor masses (rather than the population growth of the huge, resource-chomping-like-it's-candy wealthy few). Anyway. Read. Tchau.

Palestine-Israel Peace prospects: Or not.

Perhaps Middle East Peace is farther away than ever -- due as much to past actions and "ground truths" ("For all intents and purposes, every Israeli under the age of 50 has grown up with the doctrine that the Green Line does not exist, that the West Bank is in fact Judea and Samaria... Currently, almost 10 per cent of Israel's Jewish population lives in settlements beyond the green line") as to present political figures and their attitudes:

The continued acceleration of Israeli settlement activity and the concomitant fragmentation of the Palestinian national movement have led many analysts and commentators to declare the impending demise of the two-state solution. Judging the point at which two states can no longer be carved out of the present reality is not an exact science, but it seems inconceivable that a realistic prospect for partition still exists... In this respect, it has become increasingly common to argue that a one-state solution (whether a binational entity or unitary democracy) is the logical alternative to the disappearing two-state paradigm. Yet this outcome - while admittedly the closest approximation of a just peace - is even less likely to materialise than a two-state settlement.

Unlike white South Africans, Jewish Israelis are not a small minority who can be expected to conclude that providing equal rights to the indigenous population within a democratic framework represents their only salvation...

The status quo is also increasingly untenable, and the more likely scenario for the coming decade, if not longer, is that Israel's determined efforts to perpetuate it will produce increasing - and increasingly existential, regionalised and bloody - conflict.

Read the whole article at Counterpunch.

More on Sotomayor

She's hardly a die-hard fan of the little guy.

In the linked Slate article by Emily Bazelon, Bazelon lays out how Sotomayor can be very convincing; in the cited case, she convinced a conservative and liberal judge, both of who started out opposed to her view, to switch sides and sign on to her decision in a case where "empathy" would lead you to believe one might side for the trucker in this case over the off-duty cop:

But what's striking, of course, is that she persuaded them to undo a verdict in a case that a jury saw as rife with police abuse of power. "You read this unanimous opinion, and it would seem to be the Republican judge who is driving this decision that she just signed on to. When in fact it was exactly the opposite," one observer said.

The other two judges had decided to rule to uphold a jury verdict and a $600,000 award for damages for a trucker who, whatever the merits of his suit (he was found not guilty of assault against the officer, who he got into an altercation with over a payphone, back in the 90s, where trucker Jocks claimed he explained he had an emergency with his truck broken down further up the highway and the cop refused to reliquish the payphone; fight ensues; the cop claims Jocks made no mention of an emergency and started a fight for the phone) seems to have been quite thoroughly punished for a crime it was ultimately determined he didn't commit:

fter his arrest, Jocks was held for 24 hours and ended up having to make 28 court appearances before he was found not guilty of felony assault. He spent $20,000 on legal fees, lost his truck driving job, and had to give up full custody of his daughter, who went to live with her mother, his ex-wife. That dire, black moment on the LIE truly cost him.

Frayster Joe_JP observes that this actually fits in with what we know of Obama, like his upholding of some Bush era atrocities:

Given the mixed feelings some have with recent actions by President Obama (e.g., preventive detention), this should not surprise. In fact, though he was specifically talking about his views on a "living Constitution," Obama in Audacity of Hope suggested his model is Justice Breyer. Someone Rachel Maddow recently suggested was more centrist than liberal (and at times tecnocrat), and various of his opinions can be used to back that up. But, the game has to be played, so she is tarred by the likely subjects when they should be quite happy she was chosen.

Dionne appears to have it quite right. And the last thing we need on the court in this J's opinion is another "law-and-order" type, inclined to "[use her] formidable skills on behalf of the strong in opposition to the weak". Where did you hear those words before? They were Obama's objection to the nomination of Supreme Court Chief Justice John Roberts. Although O may have been talking about minorities and plaintiffs in cases against large commercial interests, it's worth remembering that the police very much are often the ones who are the strong (such as in the trucker case where, when the off-duty cop had enough, he pulled his gun and put it to Jocks' head), and Sotomayor appeared to have used her formidable skills on his behalf.

Dionne: "And even though they should support her confirmation, liberals would be foolish to embrace Sotomayor as one of their own because her record is clearly that of a moderate. It is highly unlikely that she will push the court to the left."

Zogby on Obama, Israel, Netanyahu, and Middle East Peace

A nice piece on Truthout here by James Zogby on, well, on Obama, Israel, Netanyahu, Middle East Peace, and the US Congress.

I'm out of the loop on recent events on this front, but Zogby writes:

At their White House press briefing last week, Netanyahu may have been stubborn, but Obama, too, held his ground. Addressing his remarks directly to the cameras, the US president lectured Netanyahu about the steps that must be taken: "all the parties involved have to take seriously obligations they previously agreed to"; "settlements have to be stopped"; "if the people of Gaza have no hope, if they can't even get clean water É if the border closures are so tight it is impossible for reconstruction or humanitarian efforts to take place, then that is not going to be a recipe for [the] peace track to move forward," and much more.

Further,

A recent poll of American Jews commissioned by J Street, the Jewish pro-peace lobby, found that substantial majorities of American Jews (in the 70 percent range) support President Obama and support a two-state solution that includes a Palestinian capital in Jerusalem and some limited "right to return." In addition, a strong majority opposes settlement construction and opinion is split down the middle on whether or not to cut aid to Israel if it becomes an obstacle to achieving peace!

Progress in the Palestine-Israel conflict always seems far away. But, as I feel silly saying but many people seem to forget, no conflict lasts forever. History shows us that sooner or later, this conflict will end -- though history also shows that it may end peacefully, but also may end by the dissolution of the present-day states in the area or brokering as the result of another World War (heaven forbid). But it will end, and this rhetoric and polling at least seems to point to the continued possibility of it being the first scenario (well, relatively close, it's already too late for it to be "peaceful" in the full sense of the word, but you know what I mean, a resolution without significant further violence or another change in the scale of violence).

Of course, my very informal recent research made it appear that our aid to Israel has already significantly decreased in real terms (~90%!) as well, of course, as a proportion of total aid, though my conjecture remains, as it was before, that perhaps our aid to Israel has shifted to less direct forms because it seems like a 90% scale-back of all aid to Israel would have elicited some kind of notice in the MSM. Of course, you never know just exactly what new low in competence the MSM will reach for, so... ??

Rebuffs for conservative attacks on Sotomayor: Liberal Talking Points for the day

If you're so inclined as to come to the defense of the "most conservative Supreme Court pick Obama could have made", HuffPo blogger-reporter Jason Linkins reviews how (arch-conservative) Supreme Court Justice Antonin Scalia has argued that "courts make law" (as conservatives are accusing Sotomayor of saying as a reference to "activist judging") and empathy and the racial background/history/experiences of a candidate were brought to bear in the nominations of Alito and Clarence Thomas:

This all comes courtesy of HuffPost reader Doug Schafer, who is of the opinion that journalists ought to avail themselves of this citation from Scalia whenever the "judges don't make law" canard arises. I agree!

Additionally, Sotomayor's critics are up in arms over the fact that she has admitted that her ethnic background has an affect on her decision making process. Who does she think she is? Well, as it turns out, she probably thinks she's being very similar to Justice Sam Alito:

ALITO: Senator, I tried to in my opening statement, I tried to provide a little picture of who I am as a human being and how my background and my experiences have shaped me and brought me to this point. ... And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position. [...]

And that goes down the line. When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

[WATCH.]

And, in a related way, the criticism over "empathy" fits the same "this-was-once-deemed-okay" mold. My experience teaches me that only robots lack empathy, and that most people value it. Yet, ever since President Barack Obama cited it as a focus of his, in his search for a replacement for Justice David Souter, the whole notion of "empathy" has been treated as an alien thing that threatens the sanctity of court decisions.

That's weird! In July of 1991, "empathy" was one of the major selling points presented at the nomination of Justice Clarence Thomas...

And speaking of Supreme Court Joke Justice Joke Clarence Thomas, HuffPo's Trey Ellis writes:

When a middling black student from Holy Cross goes on to Yale Law School, graduates in the middle of his class and is rated by the American Bar Association between "qualified" and "not qualified," the right festoons him with laurels. Clarence Thomas, you see, reaffirmed the comforting notions many in the right have about the supremacy of white maleness. George the First nominated him clearly because any black jurist would do and there he stands today, a reassuring beacon of black inferiority.

(I'm not saying that the first George Bush wouldn't have picked a more qualified black arch conservative if there had been one laying around. In matters of race the first George Bush wasn't such a bad egg.)

Nevertheless, for the far right his nomination was a wet dream and the humiliating effect on competent black folks is the same.

Sotomayor's been dealing with this crap for years. The LA Times reports today that in law school she sued a white-shoe Washington law firm for the exact same kind of white-male- supremacist attitudes the right is regurgitating her way right now...

I've said it before and I'll say it again: Hypocrisy's ok when I do it.

Circling the Center: Recommended readings

I hope to get to more commentary on yesterday's post at some point, but for the time being, the Continuum's recommended reading for today consists of two articles by the WaPo's E. J. Dionne, Jr:

Obama's Center-Left two-step

Obama's Anti-Roberts

In the first, Dionne (I keep wanting to add "Warwick") analyzes Obama's governing style, and finds it to (thus far) be an updating of Bill Clinton's triangulation (though I think Dionne implies, but does not say, that Obama's strategic compromises more authentically represent his political philosophy compared to what was widely seen as Clinton's more calculating political, well, triangulation). Obama is trying to tack to the Left, in Dionne's estimation, but only just:

He is out to build a new and enduring political establishment, located slightly to the left of center but including everyone except the far right.

The problem Dionne finds with this is that the ObamAdministration is trying to do this in part through only slightly sub rosa message control, pitching different messages to different audiences, but in a sort of blatant way that I think took Dionne slightly aback:

Last Thursday afternoon, for example, the White House invited in journalists, mostly opinion writers, to sell them on the substance of the president's big speech on Guantanamo and the treatment of detainees.

Unbeknown to the writers until afterward, they had been divided into two groups, one more centrist with a sprinkling of moderate conservatives, the other more liberal. (I was in the liberal group.) The president made an unscheduled appearance at each briefing. As is his way, he charmed both groups.

The idea, as far as I can determine, was to sell the liberal group on those aspects of Obama's plan that are a break from George W. Bush's policies, and to sell the centrist group on the toughness of the president's approach and the fact that it squares with Bush's more moderate moves later in his second term[...]

[...] The disturbing aspect of Obama's effort to create his new political alignment is that building it requires him to send rather different messages to its component parts. Playing to several audiences at once can lead to awkward moments.

Besides to playing to different audiences leading to potential awkwardness, there's the possibility of trying to please everyone and instead pleasing no one (apparently not yet the issue, at least in the meetings Dionne discusses), as well as the vague dishonesty of it. My concern, at the least, is that Obama isn't and never has been particularly left-liberal. He really has kept much more of the Bush Admin era extra-legal Constitution-busting executive apparatus than I'd like (or, you know, would argue is right, just, constitutional, or in keeping with his promises). In short, I'm afraid not just of his pitching his message to different audiences, but in his triangulating to towards the Right of not just where his critics claim he is (Far Left), from where he's perceived to be (Leftist Wing), but from where he actually is (Center Left); when you start your position in the middle, your only direction to compromise to farther towards the right (since the liberal-left can be taken for granted, usually).

Anyway.

Dionne (not Warwick)'s other article talks about how Supreme Court nominee Sonia Sotomayor is the most conservative choice Obama could have made, pointing out that conservatives should be pleased instead of fighting, and liberals should be vigilant, and while they (we) shouldn't oppose her nomination, nor should we be glad for it:

News accounts from the 1990s consistently described her as a "centrist" in her politics. Her lead sponsor when she was first named as a judge, the late Sen. Daniel Patrick Moynihan, was hardly a conventional liberal. Obama may have found himself an empathetic judge, but she practices her empathy from the middle of the road.

A careful analysis of her record by Business Week, for example, concluded that she is a "moderate on business issues" and would fit the court's current alignment on such questions.

She also upheld a ban on federal funds going to family planning groups that provided abortions overseas. Sotomayor wrote that "the Supreme Court has made clear that the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds."

Dan Gilgoff, on his excellent "God and Country" blog, points out that Sotomayor also ruled in favor of a group of Connecticut antiabortion protesters who asserted that police "used excessive force against them at a demonstration." He concludes that her "thin record on abortion is most likely a relief" to pro-life groups. In picking her, Obama sent another signal that he is serious about seeking common ground on abortion.

On how we should see this nomination, he continues

Liberals should not take the bait of the right-wingers by allowing the debate over Sotomayor to be premised on the idea that she is a bold ideological choice. She's not. But if conservatives succeed in painting this moderate as a radical, they will skew future arguments over the court. In fact, liberals should press Sotomayor on her more conservative decisions on business issues, an area in which the current court already tilts too far right.

Go read the whole thing.

*EXTRA SPECIAL BONUS EXCELLENT DIONNE WARWICK QUOTE ON EMPATHY:

Conservatives -- particularly those who run direct-mail outfits and want a big court fight -- would love the decision over Sotomayor to hang on Obama's call for judges who show "empathy." They would cast her as a dangerous activist willing to bend the law to produce the results she wants.

They want to turn Obama's argument on its head and claim that Sotomayor would show bias in favor of those who share her background -- and never mind that they dismiss such assertions when they are raised with respect to white, conservative, male nominees.

(emphasis added)
Three words for that observation: AMEN and DAMN STRAIGHT.

Racial discrimination: Flip it and reverse it?

Excellent article by Richard Thompson Ford on Slate about the Supreme Court case Ricci v. DeStefano. You may have heard of this case as "the case of the New Haven Firefighters" or "the case of discriminating against whites":

In 2003, the New Haven Fire Department decided to base promotions to the positions of captain and lieutenant primarily on a written exam. But the next year the city threw out the test results when all but one of the eligible candidates for promotion proved to be white. New Haven firefighter Frank Ricci, a high scorer on the test who is white, sued for reverse discrimination.

It really takes reading all of Ford's article to fully get the sweep of his argument, I would say, but it breaks down to: Ricci, who apparently took 6 months off work to prepare for the exam and spent $1,000 on tutoring, maintains that the city threw out the test after the Hispanic and Black firefighters taking it didn't do well in order to discriminate against the white firefighters who (like him) did better on the exam (though it's important to note that a number of black and Hispanic firefighters did also pass the test, but the way the evaluations were set up, only the top three scorers are eligible for promotion).

Ford makes the point that other legal experts have made, namely, that the way Title VII of the Civil Rights Act of 1964 has commonly been interpreted is that what it calls "disparate impacts" on different racial groups are legally questionable in and of themselves. That is, it is quite possible that the black and Hispanic firefighters could have sued New Haven had it not thrown out the test, on the (precedent-abiding) rationale that the fact that no blacks and only one Hispanic qualified for promotion (out of over 40 blacks and Hispanics). (And yes, I know blacks can be Hispanics and Hispanics can be blacks, but let's not get into the complicated US parsing of race -- or the fact that USA'ers don't seem to realize that there are a lot of Black Hispanics/Latinos -- here) is evidence of disparate impacts and possible discrimination.

Where Ford makes an important addition to the discussion is where he discusses why this is not necessarily "reverse discrimination" against the whites, and exactly why the disparate impacts rationale holds up. That is, as we've talked about here on Anekantavada/the Continuum, institutional racism is a pernicious going concern in the US, and non-obvious. Title VII was designed to thwart not just purposeful discrimination ("No blacks or Hispanics") AND inadvertent discrimination. And when only 1 or so out of 40 minorities qualifies for a job, it's quite certainly possible if not likely that there was inadvertent discrimination.

But let me quote Ford, who says it better (if not any more succinctly):

Conservatives think the law against disparate impact discrimination does more harm than good. [John] McWhorter decries the "rhetorical contortions that excuse black people from challenging examinations." And Abigail and Stephan Thernstrom insist in the Wall Street Journal that even "sharp racial disparities" in testing results "are not an argument for racial quotas." Both McWhorter and the Thernstroms worry that a law that is premised on lower performance by racial minorities has become self-fulfilling: Such racial disparities, the Thernstroms admonish, "should not be regarded as a permanent fact of life."

But, properly applied, disparate impact law doesn't excuse poor performance, nor does it require quotas. Instead it smokes out hidden bigotry and requires employers to avoid unnecessary segregation of the work force. Suppose an employer wants to keep women out. Knowing that he can't just put a "women need not apply" sign in his window, he might use a proxy, such as a weightlifting test, knowing that women on average have less upper body strength than men. The law against disparate impact discrimination is designed to reveal such hidden bias. Now, suppose an employer has no desire to discriminate against women but uses a weightlifting test simply because he thinks, all other things equal, stronger employees are better than weaker ones. Disparate impact law also prohibits this: It requires the employer to reconsider job qualifications that favor one race or sex, unjustifiably.

Of course, there might be a good reason to prefer people who are physically stronger—or who score higher on a written exam. The law gives employers a chance to prove that the discriminatory criteria are job-related. The idea, then, isn't to make an employer hire less qualified women or minorities over more qualified men or whites. It's to make sure the employer is testing for job qualifications, not unrelated ones.

Race discrimination has locked minorities into poor neighborhoods with failing schools for generations: As a result, blacks, as a group, continue to perform less well on written exams than other races. Perhaps New Haven's black candidates could overcome these disadvantages by studying harder, like Frank Ricci did. But Ricci took extraordinary steps to ace the test—six months off work to prepare and $1,000 on tutoring. An equal-opportunity law that's premised on everyone taking such steps isn't likely to do much good in the real world of scarce time and money. And would encouraging the equivalent of intense cramming for the final really help employers select the best firefighter for the job?

One of the things those who side with Ricci in this case say is that if a test was thrown out because only minorities were promoted as a result, it would be "an open-and-shut case of discrimination." Assumedly, they mean against the black test takers. But quite certainly, if the situation were reversed, people all over would look askance at the results? I mean, there may be some or many blacks proud of the achievement, but it certainly would be weird, right? And I can only imagine the kind of commentary conservatives would put on such a result, where only blacks qualified for promotion. Indeed, they would almost certainly by calling that reverse racism. And it would seem to me that under Title VII, they would have an equally strong case as the City does in this case. It would be statistically unlikely for that to happen by chance. Now, I can't say I would see it this way for sure if it were reversed, but I think we also all know it would be a surprising result that many would decry as being somehow discriminatory expressly because we don't expect blacks to uniformly outperform whites. This puts the institutional racism into somewhat more relief: whites have scored on average higher than blacks in any number of areas for America immemorial, and whether you think this continues because of institutional racism and unequal legacies from history (as I do) or because of some sociocultural or biological flaw, either way it would be surprising to see only blacks and Hispanics get promoted, even if in a majority-minority example (assuming it's not the kind of 98% black & Hispanic type disparity but rather say 60 or 70%). So what I'm saying is, I think many in our society would be MUCH more comfortable assuming a test which produced those results were flawed than they would be with a test producing complete over-representation by white test takers. But because we're used to whites doing better, it seems all the more galling that what Ricci supporters seem to assume is self-evidently a fair and applicable test would be thrown out.

If the situations were reversed, it might very well be open-and-shut discrimination case -- discrimination against the white employees in that case.

Two more things: if Ricci took 6 mos. off and spent $1,000 on tutoring, it also seems obvious that either the job training for the firefighters is deficient (if it takes that much effort -- so much that you stop fire-fighting for 6 mos. -- in order to qualify for advancement as a firefighter, then it would apparently seem like you can't learn enough about firefighting by actually doing it to be promoted), or that the testing is off. I mean, you can't (or at least, shouldn't) have to go through such extreme measures to advance within such a job -- we certainly wouldn't have wanted all of Ricci's colleagues to all take 6 months off at the same time to study! (Though I do believe I read he's dyslexic, so that might explain some or even all of the extreme effort he put in, now that I think of it.) In any case, it would seem like the only fair way to have advancement in such a case would be to have low-cost additional training available for everyone, so that being promoted didn't require that you have so much job flexibility and money. Second thing, though, is that people talk about it as if the blacks and Hispanics would have been blatantly unqualified to receive promotions -- but a number of them passed the damned test. Whether or not it's significantly important to take the 3 highest scorers depends on the content of the test -- which weirdly I have seen ZERO discussion of, so the question of whether or not it's completely and fairly job-relevant is unresolved -- but getting the highest score may or may not be relevant based on the content of the test itself, and on the other scores. If they were 95, 94, 93.5, 92, 92, 91 etc. and 70 was passing, the difference between the top scorers and the next several could be not practically meaningful.

Sigh. In my head, I'm hearing and thinking about various counter-arguments that I would expect from various friends of mine, so I could keep going on and on -- I was kind of trying to anticipate all the counterarguments ahead of time -- but that would go on even lONGER and I think that's unwise. So, yeah. Read Ford's piece -- I would in fact recommend it over reading all of the above (hah, too late) -- and think about institutional racism, and then, comment. Let's talk.

Torture and the Lying Liars Who Lie

Of course, the lying liars who lie aren't just our own former adminsitrationistas like Dick "Dick" Cheney but also likely those we tortured with techniques taken from Cold War-era Soviet and Chinese tactics:



Seeing as how these tactics have been said to have been used to elicit false confessions and/or evaluated by a number of notable military professionals as not reliable, you'd think this conversation could be wrapped up in short order.

Let's review the two key points again:
a) We called these same tactics torture when our enemies did them.
b) Our enemies used them to extract confessions which were likely to be, known to be, or intentionally elicited as false confessions.

Do we really need to argue more beyond those two points?

Apparently we do as long as Dick Cheney's grip on the Dark Side stays as strong as it is. He's more Dick now, than man... twisted and evil.

Words that make it unlikely I will see a movie

Preview of the must-not-see-movie of 2009:

Bloody genital mutilation scene.

(No worries: the link is just to an article talking about it, no surprise pics.)

I do not think your Iran means what you think it means

(ok, yes, I know, I've used that gag before, but, um, luckily, I have very few regular readers, so who'm I hurting?)

Nice article in Newsweek by Fareed Zakaria here briefly highlighting the political structure of Iran (in brief: complicated) and why it might indeed not be developing nuclear weapons. (I've discussed this topic here, here, and here.) As I've said before and am saying again, and Zakaria backs me up on this, think the Mullahs and Ahmedinejad are crazy all you want, but they're not MAD; that is, they're not immune to the salient guiding ideas of nuclear weapons, Mutually Assured Destruction. Zakaria elaborates on the plans and aspirations of some within the Iranian regime, as well as the declarations of the present-day Iranian regime's founding father and other, um, luminaries that nuclear weapons are un-Islamic:

The country's Supreme Leader, Ayatollah Ali Khamenei, issued a fatwa in 2004 describing the use of nuclear weapons as immoral. In a subsequent sermon, he declared that "developing, producing or stockpiling nuclear weapons is forbidden under Islam." Last year Khamenei reiterated all these points after meeting with the head of the International Atomic Energy Agency, Mohamed ElBaradei. Now, of course, they could all be lying. But it seems odd for a regime that derives its legitimacy from its fidelity to Islam to declare constantly that these weapons are un-Islamic if it intends to develop them. It would be far shrewder to stop reminding people of Khomeini's statements and stop issuing new fatwas against nukes.

Happily, most of the rhetoric seeming to be on a path to war with Iran has ceased, though the conclusion that they are developing nuclear weapons seems to continue unabated (and disbelief of the last time our own intelligence said they weren't developing weapons anymore and were less determined to do so than before is so high that it doesn't warrant a mention, seemingly).

(Hmm, immediate postscript: naturally, the debate on Iran's nuclear weapons development is more complicated than it appears, though I still tend to agree with Zakaria. But from Foreign Policy:

"This is another reflection of the grossly mistaken reaction to the intelligence estimate on this subject in late 2007, a reaction that stemmed in large part from some infelicitous and misleading formulations in the estimate itself," says former senior CIA official Paul Pillar. "The only thing reportedly halted in 2003 was weapons design work. More important is what [the LAT] mentions in the latter half of his piece, the continuation of uranium enrichment -- which, as the Bush administration correctly pointed out, is the long pole in the tent that will determine when Iran would have the capability to build a nuclear weapon.

Of course, developing nuclear power is well within Iran's international rights, it scares everyone to think that they could get close to a weapon. Suffice it to say, I'm scared of ANYONE having nuclear weapons, as everyone should be:

Surely no sane person wants Iran (or any nation) to develop nuclear weapons. A reasonable resolution of the present crisis would permit Iran to develop nuclear energy, in accord with its rights under the Non- Proliferation Treaty, but not nuclear weapons. Is that outcome feasible? It would be, given one condition: that the U.S. and Iran were functioning democratic societies in which public opinion had a significant impact on public policy.

As it happens, this solution has overwhelming support among Iranians and Americans, who generally are in agreement on nuclear issues. The Iranian-American consensus includes the complete elimination of nuclear weapons everywhere (82% of Americans); if that cannot yet be achieved because of elite opposition, then at least a "nuclear-weapons-free zone in the Middle East that would include both Islamic countries and Israel" (71% of Americans). Seventy-five percent of Americans prefer building better relations with Iran to threats of force. In brief, if public opinion were to have a significant influence on state policy in the U.S. and Iran, resolution of the crisis might be at hand, along with much more far-reaching solutions to the global nuclear conundrum.

--(from a piece by Noam Chomsky, re-posted in part in the J Continuum here).

And as I said in "Iran: Can't get fooled again?":

been used by... us, the US. We had our reasons (whose conclusions I question, but that's a different story). But nonetheless, in the issue of the insanity of destroying millions of people, only we have enaged in that. In the insanity of mutually assured destruction, well -- no one has ever engaged on that with nukes, and need we say that WE had the same posture on that as the USSR? Dr. Strangelove notwithstanding, we've not proved we're necessarily saner than self-concerned despots with nukes who refuse to use them so as to save their own hides. SO -- I'm just sayin', while it's too early to assume Ahmadinejad doesn't mean us harm and indeed is not the "Jew-hating, Holocaust-denying Islamo-fascist who has threatened to 'wipe Israel off the map'" he's been said to be, it's also way too early to determine he IS, barring the "truthiness" we feel of an Iranian head of state being antagonistic, messianic, anti-semitic, and dangerous. Just because we looked Iran up in our gut and found it under "danger" doesn't mean that we're on our path to not being fooled again...

So... can we get fooled again?

--J