Reaction to the New Haven firefighter case

On Race, the Slog Goes On
George Will
Monday, June 29, 2009

WASHINGTON -- Although New Haven's firefighters deservedly won in the Supreme Court, it is deeply depressing that they won narrowly -- 5-4. The egregious behavior by that city's government, in a context of racial rabble-rousing, did not seem legally suspect to even one of the court's four liberals, whose harmony seemed to reflect result-oriented rather than law-driven reasoning.

The undisputed facts are that in 2003 the city gave promotion exams to 118 firemen, 27 of them black. The tests were prepared by a firm specializing in employment exams and were validated, as federal law requires, by independent experts. When none of the African-Americans did well enough to qualify for the available promotions, a black minister allied with the seven-term mayor warned of a dire "political ramification" if the city promoted from the list of persons (including one Hispanic) that the exams identified as qualified. The city decided that no one would be promoted, calling this a race-neutral outcome because no group was disadvantaged more than any other.

The city's idea of equal treatment -- denying promotions equally to those deemed and those not deemed qualified -- was particularly galling to Frank Ricci, who had prepared for the exams by quitting his second job, buying the more than $1,000 worth of books the city recommended, paying to have them read onto audiotapes -- he is dyslexic -- and taking practice tests and interviews. His efforts earned him the sixth-highest score.

He and others denied promotions for which their exam scores made them eligible sued, charging violations of the Constitution's guarantee of equal protection of the laws and of the 1964 Civil Rights Act. The city argued that if it had made promotions based on the test results, it would have been vulnerable under the 1964 act to being sued for adopting a practice that had a "disparate impact" on minorities. On Monday, the court's conservatives (Anthony Kennedy writing for the majority, joined by John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito) held:

The rights of Ricci et al. under the 1964 act were violated. The city's fear of a disparate impact litigation was not unfounded, but that did not justify the race-based response to the exam results because New Haven did not have "a strong basis in evidence" to believe it would be held liable. There is such evidence only if the exams "were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative" that would have served the city's needs but that it refused to adopt.

"All the evidence demonstrates that the city rejected the test results because the higher scoring candidates were white." The city's criticisms of the exam "are blatantly contradicted by the record." And "the city turned a blind eye to evidence supporting the exams' validity" (emphases added).

Ruth Bader Ginsburg, joined in dissent by John Paul Stevens, David Souter and Stephen Breyer, rejected the majority's conclusions root and branch. She cited a federal report from the early 1970s about discrimination in hiring firefighters, disputed even the "business necessity" of the exams' 60/40 written/oral ratio and defended the integrity of New Haven's decision-making -- rejecting Alito's concurrence, which dwelt on the rancid racial politics of the Rev. Boise Kimber. Alito concluded that "no reasonable jury" could find that the city possessed a "substantial basis in evidence to find the tests inadequate."

Scalia, concurring separately, said Monday's ruling "merely postpones the evil day" on which the court must decide "whether, or to what extent," existing disparate-impact law conflicts with the 14th Amendment guarantee of equal protection of the law. Conceding that "the question is not an easy one," Scalia said: The federal government is prohibited from discriminating on the basis of race, so surely "it is also prohibited from enacting laws mandating that third parties" -- e.g., a city government -- "discriminate on the basis of race." Scalia added:

"Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain."

The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.

The "Uninsured"

I really like the illustration regarding the photograph changing every six months...

Taking a Razor to the President's Plan
George Will
Sunday, June 21, 2009

WASHINGTON -- To dissect today's health care debate, the crux of which concerns a "public option," use the mind's equivalent of a surgeon's scalpel, Occam's razor, a principle of intellectual parsimony: In solving a puzzle, start with the simplest explanatory theory.

The puzzle is: Why does the president, who says that were America "starting from scratch" he would favor a "single-payer" -- government-run -- system, insist that health care reform include a government insurance plan that competes with private insurers? The simplest answer is that such a plan will lead to a single-payer system.

Conservatives say that a government program will have the intended consequence of crowding private insurers out of the market, encouraging employers to stop providing coverage and luring employees from private insurance to the cheaper government option.

The Lewin Group estimates that 70 percent of the 172 million persons privately covered might be drawn, or pushed, to the government plan. A significant portion of the children who have enrolled in the State Children's Health Insurance Program since eligibility requirements were relaxed in February had private insurance.

Assurances that the government plan would play by the rules that private insurers play by are implausible. Government is incapable of behaving like market-disciplined private insurers. Competition from the public option must be unfair because government does not need to make a profit and has enormous pricing and negotiating powers. Besides, unless the point of a government plan is to be cheaper, it is pointless: If the public option conforms to the imperatives that regulations and competition impose on private insurers, there is no reason for it.

The president characteristically denies that he is doing what he is doing -- putting the nation on a path to an outcome he considers desirable -- just as he denies any intention of running General Motors. Nevertheless, the unifying constant of his domestic policies -- their connecting thread -- is that they advance the Democrats' dependency agenda. The party of government aims to make Americans more equal by making them equally dependent on government for more and more things.

Arguments for the public option are too feeble to seem ingenuous. The president says competition from a government plan is necessary to keep private insurers "honest." Presumably, being "honest" means not colluding to set prices, and evidently he thinks that, absent competition from government, there will not be a competitive market for insurance. This ignores two facts:

There are 1,300 competing providers of health insurance. And Roll Call's Morton Kondracke notes that the 2003 Medicare prescription drug entitlement, relying on competition among private insurers, enjoys 87 percent approval partly because competition has made premiums less expensive than had been projected. The program's estimated cost from 2007 to 2016 has been reduced 43 percent.

Some advocates of a public option say health coverage is so complex that consumers will be befuddled by choices. But consumers of many complicated products, from auto insurance to computers, have navigated the competition among providers, who have increased quality while lowering prices.

Although 70 percent of insured Americans rate their health care arrangements good or excellent, radical reform of health care is supposedly necessary because there are 45.7 million uninsured. That number is, however, a "snapshot" of a nation in which more than 20 million working Americans change jobs every year. Many of them are briefly uninsured between jobs. If all the uninsured were assembled for a group photograph, and six months later the then-uninsured were assembled for another photograph, about half the people in the photos would be different.

Almost 39 percent of the uninsured are in five states -- Florida, Texas, New Mexico, Arizona and California, all of which are entry points for immigrants. About 21 percent -- 9.7 million -- of the uninsured are not citizens. Up to 14 million are eligible for existing government programs -- Medicare, Medicaid, SCHIP, veterans' benefits, etc. -- but have not enrolled. And 9.1 million have household incomes of at least $75,000 and could purchase insurance. Those last two cohorts are more than half of the 45.7 million.

Insuring the perhaps 20 million persons who are protractedly uninsured because they cannot afford insurance is conceptually simple: Give them money -- (refundable) tax credits or debit cards (which have replaced food stamps) loaded with a particular value. This would produce people who are more empowered than dependent. Unfortunately, advocates of a government option consider that a defect. Which is why the simple idea of the dependency agenda cuts like a razor through the complexities of this debate.

Pay-as-you-go

I think this is a fantastic idea, and a real step in the right direction.  The government has to get a grip on spending.  Typically pay-as-you-go laws are dangerous because rather than cutting existing spending to pay for new initiatives, the legislature just raises taxes.  I'm not sure that is an option at the moment given Obama's pledge not to raise taxes on 95% of Americans and the fact he has already raised taxes on the remaining 5% by letting existing tax cuts expire.  Kudos to Obama for making an effort to reign in runaway spending.

One caveat here:  unless a mechanism exists to alow a reduction in overall spending, all the president has done is freeze spending at the highest level in our nation's history.

Obama pitches pay-as-you-go plan for Congress

By BEN FELLER, Associated Press Writer2 mins ago

WASHINGTON – President Barack Obama on Tuesday challenged Congress to pay for new increases in federal benefit programs as it goes rather than sink the nation deeper into a debt, calling it a matter of public responsibility.

Republicans lashed back that Obama is no voice of fiscal restraint as the deficit soars.

The president's plan would require Congress to pay for new entitlement spending, such as health care, by raising taxes or coming up with budget cuts — a "pay-as-you-go" system that would have the force of law. Under the proposal, if new spending or tax reductions are not offset, there would be automatic cuts in so-called mandatory programs — although Social Security payments and some other programs would be exempt.

Not noted by the president: Tuesday's plan is a watered-down version of the so-called "PAYGO" rules proposed just last month in his own budget plan.

That version would have required, on average, all affected legislation to be paid for in the very first year. The new plan only requires such legislation to be financed over the coming decade. That mirrors congressional rules and reflects the likelihood that health care reform will add to the deficit in the early years.

Obama said the principle is simple: Congress can only spend a dollar if it saves a dollar somewhere else.

"It is no coincidence that this rule was in place when we moved from record deficits to record surpluses in the 1990s — and that when this rule was abandoned, we returned to record deficits that doubled the national debt," Obama said, flanked at the White House by supportive Democratic lawmakers.

"Entitlement increases and tax cuts need to be paid for," he said. "They're not free, and borrowing to finance them is not a sustainable long-term policy."

Republican leaders, critical of the Obama-championed $787 billion stimulus package and other deficit spending, called the president disingenuous.

"It's as if the administration and these Democrat leaders are living in an alternate universe," said House Republican Whip Eric Cantor of Virginia. "The quickest way to save money is to stop recklessly spending it."

The pay-as-you-go rules would not apply to discretionary spending — the portion that Congress decides how to spend each year — which accounts for almost 40 percent of the budget, said Peter Orszag, the administration's budget director.

Obama's call for binding legislation comes as a reward to moderate-to-conservative "Blue Dog" Democrats who are big believers in pay-as-you go. Their votes were crucial to passing a congressional budget blueprint that generally follows Obama's budget.

The House and Senate already have their own PAYGO rules, but have routinely found ways around them. For example, a bill to effectively double GI Bill education benefits was enacted last year because of a loophole in congressional rules.

Obama's "PAYGO" plan would also require future tax cuts to be financed by tax increases elsewhere in the code, though exceptions are made for extendingPresident George W. Bush's 2001 and 2003 tax cuts, as well as other tax cuts that are scheduled to expire.

The federal deficit is on pace to explode past $1.8 trillion this year, more than four times last year's all-time high.

The deficit figures flow from the deep recession, the Wall Street bailout and the cost of the economic stimulus bill. Obama has defended the massive stimulus plan as essential to helping pump some life back in the economy, one that is still shedding jobs but showing more signs of life in recent weeks.

"The fact is, there are few who aren't distressed by deficits," Obama said. He said restoring a pay-as-you-go method under law would force lawmakers to deal not just with the politics and crises of the day, but also remain fixed on the nation's long-term financial health.

Yay, let's celebrate the fact judges appear to be biased by gender...

 I love the portion in red - the author thinks this study proves that diversity of judges is a good thing.  I think it proves only that judges need to base their their legal reasoning to the law, regardless of their gender.  If the findings were truly based on legal reasoning, there wouldn't be any correlation between the gender of the judge and the judge's findings.  That study should be very concerning to anyone who want the law to be enforced equaly and fairly.  What happened to "justice is blind"?

 

US conservatives are fighting for the rights of a minority – white men

Obama's nomination of a Latina to sit on the supreme court has prompted an attack from the right against racism

• 
• • Gary Younge
  • guardian.co.uk, Sunday 7 June 2009 22.00 BST
  •  larger | smaller

'You do not choose to be a son or a daughter," argues Kwame Anthony Appiah in The Ethics of Identity. "A Serb or a Bosnian; a Korean or an Mbuti ... In all sorts of ways ... our identities are neither wholly scripted for us nor wholly scripted by us."

We are all a product of our time and place. Born in the midst of a random variety of narratives over which we have no control, most of us spend our lives trying to write the best story we can with the material we have been given. Some struggle with this as a concept. Desperate to think of themselves as inspired, original and above all, self-made, they are at pains to deny that their script has been partially penned by anyone other than themselves. Their reluctance is understandable: who would voluntarily cede editorial control over their own lives?

And yet it is really only possible to imagine for those who have power and refuse to interrogate it. The man in high office is never asked how he balances work and family, and the straight person is never asked when they realised they were straight. But just because the issue of their identity never really materialises doesn't mean they don't have one, let alone many.

Those who insist that their opinions and emotions are independent of their experiences and identities ultimately reveal not originality but conceit: having deluded themselves into believing that they do not involuntarily belong to anything, they start to assume that everything belongs to them.

Herein lies the root of the rightwing attacks on Barack Obama's nominee to the US supreme court, Sonia Sotomayor, that have wavered over the past two weeks between febrile and juvenile.

Of the 110 supreme court justices that have ever been confirmed, more than 98% have been white and more than 98% male. For the first 178 of its 220 years, the court was completely dominated by white men. At present, seven of nine of the justices are white men. Now one of them is leaving and Obama has had the audacity to nominate a Latina. Suddenly, conservatives are concerned about meritocracy, racism and the prospect of minorities getting a fair shake before the law. And that minority would be white men.

"God help you if you're a white male coming before her bench," said the Republican leader Michael Steele.

Fulminating against the shortlist from which Sotomayor was picked, conservative crusader Pat Buchanan said: "You got down to four women, not a single white male – all women … Probably half of the great lawyers and judges are white males in this country. To rule them out, why? Because of sex and because of their race is wrong, I think."

"This is pure, pure, pandering to the Hispanics," claimed CNN's Poujadist anchor, Lou Dobbs.

It's not difficult to see why they're so frustrated. Sotomayor, 54, has a compelling biography. Raised in the Bronx housing projects by Puerto Rican parents, her father, a factory worker, died when she was nine. Her mother was a nurse. As a child she was diagnosed with diabetes. But still managed to win scholarships to Princeton, where she graduated top of her class, and from there to Yale, where she edited the Yale Law Journal. After a brief stint in private practice she was nominated to the federal bench, where she spent five years before being nominated to the court of appeals. Her record on both courts reveals a centrist, pragmatic, liberal judge unworthy of a conservative hate campaign.

With her stellar academic achievements and a moderate judicial record, the right has had to concentrate not on what she has done but who she is, claiming she was only picked because she is a Latina and reviling her as a hater of white men.

The fact that she is a Latina is certainly relevant. Given the court's im balances, her gender and ethnicity are no accident. Nor are these kinds of considerations new. Historically, court appoint ments have always been made with diversity in mind – to make sure certain regions, religions and immigrant groups were represented.

Research shows that this diversity is no mere window dressing. A 2005 Yale Law Journal study found not only that "female judges were significantly more likely than male judges to find for plaintiffs in sexual harassment cases" but also that "the presence of a female judge significantly increased the probability that a male" on a three judge panel "would find for the plaintiff".

And yet to suggest she was only nominated because she is a Latina detracts from her considerable achievements. No white man with her qualifications would be accused of that, even though that is precisely how things have worked for most of the last two centuries. If anyone on that bench has earned the right to be there, she has.

The notion she would discriminate against white men stems from a speech made in Berkeley, California, in 2001 during which she said: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

The statement is problematic. Evoking a wealth of experiences to inform an argument makes sense. But to substitute those experiences for the argument itself fetishises identity and mistakes it for intellect. Moreover, neither gender nor ethnicity has a monopoly on wisdom. A wise white man, almost by definition, would reach smart conclusions too, while there are plenty of black and brown men and women who don't.

After all, her future colleague would be the ultra-conservative justice Clarence Thomas. Like Sotomayor, he grew up non-white and poor – but they agree on little and he has proven himself to be anything but wise.

The entire speech, and others she has given elsewhere, offers more nuance than the ­soundbite and gives a nod to some of these arguments, making it far more sophisticated than an essentialist tirade. But notwithstanding its flaws, the basic point that judges come to cases with personal baggage is almost unarguable.

In other circumstances, such statements have raised few eyebrows. When the conservative judge Samuel Alito was being confirmed in 2006, he confessed that being the son of Italian immigrants had an impact on his rulings. "When a case comes before me involving, let's say, someone who is an immigrant, I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position."

So, far more stunning than Soto mayor's speech itself has been the conser vative response to it. Sotomayor has been branded a "bigot", a "racist", and a "reverse racist" by men like Rush Limbaugh and Glenn Beck who – without any sense of irony – are attacking identity politics in a bid to defend white masculinity.

"Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority," claims Stuart Taylor in the National Journal. In a world where seven Latinas were on the supreme court and a white man was being nominated for the first time they might even have a point. That, however is not the world we live in.

• guardian.co.uk © Guardian News and Media Limited 2009

Have We Got a Deal For You

Have We Got a Deal For You
George Will
Sunday, June 07, 2009

WASHINGTON -- "I," said the president, who is inordinately fond of the first-person singular pronoun, "want to disabuse people of this notion that somehow we enjoy meddling in the private sector." He said that in March, when the government already owned 80 percent of AIG, Fannie Mae and Freddie Mac. "When a difficult decision has to be made on matters like where to open a new plant or what type of new car to make, the new GM, not the United States government, will make that decision." But the government is GM's largest shareholder, customer, tax collector, regulator, partner in determining employees' compensation, protector of dealers and pension guarantor. GM's other large owner, the United Auto Workers, is increasingly a government dependant.

Yet Steve Rattner and Ron Bloom, two of the president's fixers of Detroit, recently wrote in USA Today that government "will play no role" in running GM. They were not under oath.

"What we are not doing -- what I have no interest in doing -- is running GM," says the president who, when not firing GM's CEO, purging its board of directors and picking new members, is designing new products (imposing fuel economy requirements that will control size, weight, passenger capacity and safety). The president, overcoming his professed reluctance to run GM, resembles the journalist Don Marquis when, after a month on the wagon, he ordered a double martini and exclaimed: "I've conquered my goddam willpower."

Washington mandates that Detroit must build cars for which there is much less demand than Washington demands that there be. Then Washington tries to manufacture demand with a $7,500 tax credit for purchasers of the electric Chevrolet Volt, supposedly GM's salvation. So, GM is to be saved by a product people will not buy without a cash incentive larger than the income tax paid by 83.4 percent of America's families.

It is reasonable to assume that GM will become profitable -- if you make unreasonable assumptions about annual vehicle sales and GM's share of the market. Besides, the government that runs Amtrak (which has lost $23 billion, in today's dollars, just since 1990) vows to make GM efficient.

But one reason Amtrak runs on red ink is that legislators treat it as their toy train set, preventing it from cutting egregiously unprofitable routes. Will Congress passively accept auto plant-closing decisions? Rattner says Washington's demure vow is: "No plant decisions, no dealer decisions, no color-of-the-car decisions." He is one-third right. Last week, under the headline "Senators Blast Automakers Over Dealer Closings," The Washington Post reported, "Because the federal government is slated to own most of General Motors and 8 percent of Chrysler, some of the senators said they have a responsibility, as major shareholders do, to review company decisions."

The pressure to politicize the economy is spreading. John Sweeney, head of the AFL-CIO, and Gerald McEntee, head of the American Federation of State, County and Municipal Employees -- which is government organized as an interest group to lobby itself -- have demanded the resignation of two directors of Citigroup. Their premise is that businesses receiving direct government subventions should conform to the wishes of the president's allies.

GM is adopting new ways to lose money: Responsive to its UAW masters, GM is moving from China to America the production of some components of one Chevrolet model. Says UAW President Ron Gettelfinger, "It should be built here if it's going to be sold here." That principle, now successfully asserted, means economic autarky -- the end of international trade, and of prosperity.

The government's $50 billion -- so far -- acquisition of the shadow of GM will injure, with unfair financial advantages, the surprisingly healthy U.S. auto company, Ford. Of course, the government does not intend that injury, any more than it intended to cause protests in Mexico over the high price of corn tortillas, a result of Washington's mandate that Americans burn corn (ethanol) in their cars.

Washington's "rescue" of GM began because GM is "too big to fail," and bankruptcy is (well, was) "unthinkable." Big? GM's market capitalization, $375.8 million on Wednesday, is about the size of California Pizza Kitchen's ($340 million) -- is it too big to fail? -- and one-eleventh that of Harley-Davidson ($4.3 billion). Fail? If GM has not already failed, New Coke was a success.

The administration is determined to prop up GM as a jobs program for the UAW and Midwestern states rich in electoral votes. This frenzy will intensify as the administration's decisions deepen the debacle.

GM - Government Motors

---

June 2, 2009

OP-ED COLUMNIST

The Quagmire Ahead

By DAVID BROOKS

On Jan. 21, 1988, a General Motors executive named Elmer Johnson wrote a brave and prophetic memo. Its main point was contained in this sentence: “We have vastly underestimated how deeply ingrained are the organizational and cultural rigidities that hamper our ability to execute.”

On Jan. 26, 2009, Rob Kleinbaum, a former G.M. employee and consultant, wrote his own memo. Kleinbaum’s argument was eerily similar: “It is apparent that unless G.M.’s culture is fundamentally changed, especially in North America, its true heart, G.M. will likely be back at the public trough again and again.”

These two memos, written by men devoted to the company, get to the heart of G.M.’s problems. Bureaucratic restructuring won’t fix the company. Clever financing schemes won’t fix the company. G.M.’s core problem is its corporate and workplace culture — the unquantifiable but essential attitudes, mind-sets and relationship patterns that are passed down, year after year.

Over the last five decades, this company has progressively lost touch with car buyers, especially the educated car buyers who flock to European and Japanese brands. Over five decades, this company has tolerated labor practices that seem insane to outsiders. Over these decades, it has tolerated bureaucratic structures that repel top talent. It has evaded the relentless quality focus that has helped companies like Toyota prosper.

As a result, G.M. has steadily lost U.S. market share, from 54 to 19 percent. Consumer Reports now recommends 70 percent of Ford’s vehicles, but only 19 percent of G.M.’s.

The problems have not gone unrecognized and heroic measures have been undertaken, but technocratic reforms from within have not changed the culture. Technocratic reforms from Washington won’t either. For the elemental facts about the Obama restructuring plan are these: Bureaucratically, the plan is smart. Financially, it is tough-minded. But when it comes to the corporate culture that is at the core of G.M.’s woes, the Obama approach is strangely oblivious. The Obama plan won’t revolutionize G.M.’s corporate culture. It could make things worse.

First, the Obama plan will reduce the influence of commercial outsiders. The best place for fresh thinking could come from outside private investors. But the Obama plan rides roughshod over the current private investors and so discourages future investors. G.M. is now a pariah on Wall Street. Say farewell to a potentially powerful source of external commercial pressure.

Second, the Obama plan entrenches the ancien régime. The old C.E.O. is gone, but he’s been replaced by a veteran insider and similar executive coterie. Meanwhile, the U.A.W. has been given a bigger leadership role. This is the union that fought for job banks, where employees get paid for doing nothing. This is the organization that championed retirement with full benefits at around age 50. This is not an organization that represents fundamental cultural change.

Third, the Obama approach reduces the fear that impels change. The U.S. government will own most of G.M. It would be politically suicidal for the Democrats, or whoever is in power, to pull the plug on the company — now or ever. Therefore, the current managers can rest assured that they never need to fear liquidation again. There will always be federal subsidies for their own mediocrity.

Fourth, the Obama plan dilutes the company’s focus. Instead of thinking obsessively about profitability and quality, G.M. will also have to meet the administration’s environmental goals. There is no evidence G.M. is good at building the sort of small cars the administration demands. There is no evidence that there is a large American market for these cars. But G.M. now has to serve two masters, the market and the administration’s policy goals.

Fifth, G.M.’s executives and unions now have an incentive to see Washington as a prime revenue center. Already, the union has successfully lobbied to move production centers back from overseas. Already, the company has successfully sought to restrict the import of cars that might compete with G.M. brands. In the years ahead, G.M.’s management will have a strong incentive to spend time in Washington, urging the company’s owner, the federal government, to issue laws to help it against Ford and Honda.

Sixth, the new plan will create an ever-thickening set of relationships between G.M.’s new owners — in government, management and unions. These thickening bonds between public and private bureaucrats will fundamentally alter the corporate culture, and not for the better. Members of Congress are also getting more involved in the company they own, and will have their own quaint impact.

The end result is that G.M. will not become more like successful car companies. It will become less like them. The federal merger will not accelerate the company’s viability. It will impede it. We’ve seen this before, albeit in different context: An overconfident government throws itself into a dysfunctional culture it doesn’t really understand. The result is quagmire. The costs escalate. There is no exit strategy.

Criticize, then Confirm

Sotomayor: Criticize, then Confirm
Charles Krauthammer
Friday, May 29, 2009

WASHINGTON -- Sonia Sotomayor has a classic American story. So does Frank Ricci.

Ricci is a New Haven firefighter stationed seven blocks from where Sotomayor went to law school (Yale). Raised in blue-collar Wallingford, Conn., Ricci struggled as a C and D student in public schools ill-prepared to address his serious learning disabilities. Nonetheless he persevered, becoming a junior firefighter and Connecticut's youngest certified EMT.

After studying fire science at a community college, he became a New Haven "truckie," the guy who puts up ladders and breaks holes in burning buildings. When his department announced exams for promotions, he spent $1,000 on books, quit his second job so he could study eight to 13 hours a day, and, because of his dyslexia, hired someone to read him the material.

He placed sixth on the lieutenant's exam, which qualified him for promotion. Except that the exams were thrown out by the city, and all promotions denied, because no blacks had scored high enough to be promoted.

Ricci (with 19 others) sued.

That's where these two American stories intersect. Sotomayor was a member of the three-member circuit court panel that upheld the dismissal of his case, thus denying Ricci his promotion.

This summary ruling deeply disturbed fellow members of Sotomayor's court, including Judge Jose Cabranes (a fellow Clinton appointee) who, writing for five others, criticized the unusual, initially unpublished, single-paragraph dismissal for ignoring the serious constitutional issues at stake.

Two things are sure to happen this summer: The Supreme Court will overturn Sotomayor's panel's ruling. And, barring some huge hidden scandal, Sotomayor will be elevated to that same Supreme Court.

What should a principled conservative do? Use the upcoming hearings not to deny her the seat, but to illuminate her views. No magazine gossip from anonymous court clerks. No "temperament" insinuations. Nothing ad hominem. The argument should be elevated, respectful and entirely about judicial philosophy.

On the Ricci case. And on her statements about the inherent differences between groups, and the superior wisdom she believes her Latina physiology, culture and background grant her over a white male judge. They perfectly reflect the Democrats' enthrallment with identity politics, which assigns free citizens to ethnic and racial groups possessing a hierarchy of wisdom and entitled to a hierarchy of claims upon society.

Sotomayor shares President Obama's vision of empathy as lying at the heart of judicial decision-making -- sympathetic concern for litigants' background and current circumstances, and for how any judicial decision would affect their lives.

Since the 2008 election, people have been asking what conservatism stands for. Well, if nothing else, it stands unequivocally against justice as empathy -- and unequivocally for the principle of blind justice.

Empathy is a vital virtue to be exercised in private life -- through charity, respect and lovingkindness -- and in the legislative life of a society where the consequences of any law matter greatly, which is why income taxes are progressive and safety nets built for the poor and disadvantaged.

But all that stops at the courthouse door. Figuratively and literally, justice wears a blindfold. It cannot be a respecter of persons. Everyone must stand equally before the law, black or white, rich or poor, advantaged or not.

Obama and Sotomayor draw on the "richness of her experiences" and concern for judicial results to favor one American story, one disadvantaged background, over another. The refutation lies in the very oath Sotomayor must take when she ascends to the Supreme Court: "I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich. ... So help me God."

When the hearings begin, Republicans should call Frank Ricci as their first witness. Democrats want justice rooted in empathy? Let Ricci tell his story and let the American people judge whether his promotion should have been denied because of his skin color in a procedure Sotomayor joined in calling "facially race-neutral."

Make the case for individual vs. group rights, for justice vs. empathy. Then vote to confirm Sotomayor solely on the grounds -- consistently violated by the Democrats, including Sen. Obama -- that a president is entitled to deference on his Supreme Court nominees, particularly one who so thoroughly reflects the mainstream views of the winning party. Elections have consequences.

Vote Democratic and you get mainstream liberalism: A judicially mandated racial spoils system and a jurisprudence of empathy that hinges on which litigant is less "advantaged."

A teaching moment, as liberals like to say. Clarifying and politically potent. Seize it.