"Empathy" Can Kill
Stuart Taylor, Jr. writes in the National Journal about the damage done by the vote by Sotomayor and two other judges on Ricci to uphold the city's denial of promotions to white firefighters who did best on the test:
In response to Judge Rosemary Pooler's assertion that "no one was hurt" in the New Haven case, Torre (the white firefighters' lawyer) said: "No one was hurt? For heaven's sakes, judge, if they didn't refuse to fill the vacancies, these men would be lieutenants and captains. How can you say they weren't hurt? They're out $1,000 apiece [for test preparation].... They spent three months of their lives holed up in a room, like I was and you were when we took the bar exam."Torre went on to emphasize why the test was a valid basis for making promotions -- and what can happen when promotions go to people who have not done their homework:
"These men [are not] garbage collectors. This is a command position of a first-responder agency. The books you see piled on my desk are fire-science books. These men face life-threatening circumstances every time they go out.... They are tested for their knowledge of fire, behavior, combustion principles, building collapse, truss roofs, building construction, confined-space rescue, dirty-bomb response, anthrax, metallurgy.... The court [should] not treat these men in this profession as if it were unskilled labor. We don't do this to lawyers or doctors or nurses or captains or even real estate brokers. But somehow, they treat firefighters as if it doesn't require any knowledge to do the job....
"Firefighters die every week in this country .... A young father and firefighter, Eddie Ramos, died after a truss roof collapsed in a warehouse fire because the person who commanded the scene decided to send men into an unoccupied house... with a truss roof known to collapse early in [a] fire because of the nature of the pins that hold the trusses together.... And the fire chief had to go tell a 6-year-old that her father wasn't coming home."
Judge Sotomayor responded by observing that there must be "a fair test that could be devised that measures knowledge in a more substantive way."
Translation: New Haven needs a test that won't give such an advantage to the firefighters who have learned the most about fighting fires.
Want to hear the audio?
http://blogs.wsj.com/washwire/2009/05/29/sotomayor-tape-reveals-views-on-ricci-v-destefano-discrimination-case/
links to the audio are near the top of the page, split in to two halves, and the third link is the whole recording
Havent listen to them myself yet as I just got up
lujlp at June 10, 2009 3:52 AM
Incedentally has anyone ever even seen the test?
I'd like to see how a test on scientific princibles and resopnse plans used daiy by the fire department could be racist, exuse me 'racially biased'
lujlp at June 10, 2009 4:02 AM
The test wasn't racially biased, nor did anyone ever say it was. What they said was: "Oh no, only white firefighters passed the test, we are gonna get sued if we promote based on these results".
They should have had the guts to do it anyway, but city councils are not know for their courage.
bradley13 at June 10, 2009 6:32 AM
I'd like to see how a test on scientific princibles and resopnse plans used daiy by the fire department could be racist, exuse me 'racially biased.
Dude, we covered this ad nauseum in a previous thread. The test produced the wrong results, therefore under the law, it had a discriminatory effect.
The test wasn't racially biased, nor did anyone ever say it was. What they said was: "Oh no, only white firefighters passed the test, we are gonna get sued if we promote based on these results".
Yep.
And what conservatives getting exercised about this ruling fail to note: the ruling in the Ricci case was simply following precedent, as appeals court judges are supposed to do. To have ruled for Ricci would have been judicial activism.
Cheezburg at June 10, 2009 7:15 AM
Just because judges interpreted the law so widley does not make it right.
If that were the case every single test in creation would be racially biased based on nothing more than the test scores of the participants.
Suppose you had twenty equally canidates ten white and ten black, all went to the same schools got the same grades graduated at the same time, applying to be a math teacher at a private school.
Now suppose that they were told that the person who scored the highest on a standard math test would get the job. No word problems just numbers, algerbra, geomety, trig.
Under dumbass rulings like the one in this case any time a white guy get a higher score it means the test was biased, exact same test when a black guy come in on top and suddenly it no longer is.
How by any rational thought process is that a reasonable conclusion?
Seems to me if minorites decided en mass to simply fail every test on pourpose they could claim racial bias on everything.
Now cheezburg, suppose your house was on fire and your familly in dager of dying a horrible painful death - who do you want in charge?
The person most quailifed no matter what their race, or someone who was unable to do the job put elevated anway beacuse of the color of their skin?
lujlp at June 10, 2009 7:35 AM
The test was designed specifically to be non-racially biased. It was exhaustively reviewed before it was adminstered to ensure no racial or cultural biases were built in.
The men who took the test were promised beforehand that passing it would mean a position in the promotion queue. They were well aware that it was a career-making opportunity.
They were given ample opporutnity and materials for study and test preparation.
Some chose to study. Some did not.
Conan the Grammarian at June 10, 2009 8:33 AM
...the ruling in the Ricci case was simply following precedent, as appeals court judges are supposed to do. To have ruled for Ricci would have been judicial activism.
Judges are supposed to use precedent as a guide post, not a hitching post.
Judicial activism consists in completely ignoring precedent and imposing the judge's viewpoint on the law.
Conan the Grammarian at June 10, 2009 8:37 AM
A short stament of facts. The stupid law in Title VII does prohibit discrimination by disparate impact. If disparate impact is found by the court, the burden of proof shifts to the employer who must show that (1) the policy is required by necessity and (2) it is big part of doing the job.
Note that the judge characterized the test as lacking substance because it has a disparate impact. This is language specifically designed to undermine the necessity test that employers can use to justify disparate impact policies. That's a clear departure from previous precedent.
Sotomayor has previously admitted that she makes policy from the bench. Here she attempts to make equivalent 'disparate impact' and 'substantive policy.' Wrong, wrong, wrong. She's inventing law here.
I can see no reasonable reading of the argument in which the plaintiffs fail to meet those two tests. Sotomayor was clearly wrong.
Instead of finding the bottom line, we have hit rock bottom. Sotomayor didn't want a bunch of qualified white guys to get promoted over a bunch of unqualified black guys. She blames the test and ignores the law on necessity and significance to the job.
That's wrong. She's unqualified for the highest court because she has shown she can't be impartial in cases involving white guys.
Jeff at June 10, 2009 10:19 AM
This is language specifically designed to undermine the necessity test that employers can use to justify disparate impact policies.
The employer didn't seek the necessity option since they threw it out and made a new one, leading to the Ricci suit.
Sotomayor didn't want a bunch of qualified white guys to get promoted over a bunch of unqualified black guys.
Don't forget the hispanic guys she didn't want to get promoted, either! Some of them passed the test, too. But she must hate Latino males along with whites, right?
I'm not going to go back into things I've covered in great detail previously. I'll sum them up: if you the worst thing you have against a woman with a long track record as a prosecutor and a judge is a single vote (with other justices) in an unsigned per curiam opinion that was consistent with 2nd circuit precedent, you're really grasping at straws.
But hey, keep going after this woman, calling her a racist, all that stuff. All it does is push America's fastest growing demographic more thoroughly into the Democratic party's arms. It's a guaranteed winning strategy. Remember, it was Bush's lack of fiscal discipline and not his foreign policy that killed the Republican party. Sarah Palin and Rush Limbaugh are national treasures. Keep it up :)
Cheezburg at June 10, 2009 9:44 PM
Acctually what they did was 'temoprarily' fill the postions whith the guys who got worse than a C on the test.
Did you listen to the audio? The lawyer for the city was claiming that New Haven was unable to come up with an alternitve test due to the continueing litigation.
And the firefighters lawyer said the previous test for New Hven had the same statistical distribution of race in scoring on previous tests, the only difference in this case was there werent enough vacancies to go down the list far enough to hire a black guy.
But regardless Title 7 doesnt pply when the test is shown to be job related.
So cheezburg, were it your house burning down and your kids trapped inside who would you want in change? Someone qualified, or a politiacally expediand afermitive avtion hire who got a C- in fire firghters school?
lujlp at June 10, 2009 10:14 PM
Why the fuck should Republicans listen to a Democrat for advice on how to win? That's like the Giants asking the Patriots for football strategy.
McCain promised blanket amnesty, the Hispanic vote went mostly Democratic. Putting an unqualified Hispanic woman on the court sin't gonna buy them anything. I mean, really - did the Democrats attacks on Miguel Estrada really hurt them in the election?
The bitch IS a racialist, if not racist. She has said on numerous occasions that her race and gender allow her to make BETTER (her word, not mine) decisions than a "white man".
That admission of inability to remain neutral is the biggest and only reason to oppose her.
Again, why should we listen to you? Like Howard Dean is really interested in keeping the Republican party alive.
The simple fact is that yes, it is the utter lack of fiscal discipline that killed the Republicans in the last election. If it was foreign policy, they would not have won the 2002 midterms and the 2004 presidential elections which were run ENTIRELY on foreign policy.
You really need to get your critical thinking skills sharpened, if I can find such major flaws in your arguments before I can even see straight.
brian at June 11, 2009 5:54 AM
Beyond all the posturing and the legalistic back and forth going on in this case one fact is true across the board. The white firefighters were screwed over because of race.
The test was NOT racially biased. it is a general test to test the knowledge required of a firefighter in a leadership position that deals with architecture,combustibles, chemistry, procedure,safety etc. All things you would expect and demand that your officers kow who are responsible for the men and women who are responding to these types of events.
The minority candidates were given the SAME amount of time to study and prepare, the SAME materials, the test was taken under the SAME conditions and in the court transcripts even the low scoring candidates agreed to the fairness of the way the test was conducted.
What we are seeing in cases like these are these men not being punished for thier lack of job competency, not for any misconduct or for any other viable reason. They are punished because they are white. When are we going to stop feeling sorry for those who will not help themselves and that sense of entitlement because of thier skin color?
I have said it in other blogs and I will say it here that people need to start taking responsibility for thier own actions and choices and quit blaming the world for the fact that they squandered the opportunities presented to them.
If you want to take this case even further then we need to scrap the SAT,ACT ,ASVAB and other tests because they are skewed toward those people who study for them...not those who do not then expect the courts to force us to accept the fact that they were underpriviledged and therefore the results of said tests are meaningless and inconsequential.
So what would you have.....
A police detective who wouldnt be able to solve any crimes.
A fire chief who would get men killed needlessly because he was promoted over much more competant folks because of his skin color.
The marinally qualified paramedic coming to try to save your loved one who has had a heart attack.
The truck driver who barely knows the rules of the road and is a danger to everyone around him.
Anyone else see a trend here? You could apply that ruling to any profession where you have to take a test or exam for promotion/certification/licensing.It really sets a dangerous precedent.
This has NOTHING to do with democratic or republican. It has to do with expecting a judge to be unbiased and fair in application of the law. Something Judge Sotomayor has already proven she is incapable of.
The Other Mike D at June 11, 2009 7:14 AM
If it was foreign policy, they would not have won the 2002 midterms and the 2004 presidential elections which were run ENTIRELY on foreign policy.
People's minds changed, Republican policy stayed the same. By 2006, people were sick of the wars and wanted our troops to go home.
So cheezburg, were it your house burning down and your kids trapped inside who would you want in change? Someone qualified, or a politiacally expediand afermitive avtion hire who got a C- in fire firghters school?
This question is irrelevant to whether the law was applied properly.
Cheezburg at June 11, 2009 7:17 AM
I disagree, the end result of such rulings should be paramount in such legal decisions.
That is afterall the point of law - a smooth(or a close it as we can get) running society.
Not a society where life and death decisions rest on the subjective feelings of people who want to get there feelings hurt for the satisfaction of running around and claim how they were singled out
Quite frankly had I lived in New Haven I would have sued every city offical for wrongful death in every fire related death
lujlp at June 11, 2009 8:19 AM
Good points Mike D. Except that for a judge they are not the decisive ones. A judge on an appellate court is charged with determining whether lower court rulings are consistent with that circuit's interpretation of the law. That's their job. And most of the writing out there suggests that the Ricci ruling, regrettable though it was, was consistent with precedent in her circuit.
Cheezburg at June 11, 2009 8:24 AM
Cheezburg - There's also one other problem with your disparate impact argument.
The "required for the job" portion.
The city of New Haven claims to have tossed the results over the fear of a lawsuit. A lawsuit that they had to know they would win.
Which means one thing, and one thing only: New Haven tossed the results solely because no black people passed the test.
Concerning 2006, you're quite wrong. Republicans stayed home en masse or voted third party (which I did) because of our disgust at the lack of fiscal discipline practiced by Republicans. After Medicare Part D went through, I was done with them.
You only THINK that it was due to feelings over the war because that's what CBS tells you. Here's a little news flash for you - CBS has been lying to you for forty years.
brian at June 11, 2009 9:10 AM
Anyone else see a little class warfare here... a little blue-collar patronization?
In the white-collar professions, it's acceptable to simply get more minorities into good schools and let them take their chances on the licensing exams with everyone else.
But with the blue-collar folks, equal opporutnity doesn't count. The outcome is the standard by which fairness is measured.
When do we change the CPA exam? Or the bar exam? Or the medical licensing exam? When will we be throwing these exams out in the name of fairness?
Or are accountant, lawyer, and doctor jobs somehow more important? Is it more critical to have qualified people holding those jobs?
After all, a firefighter just stands there with a hose, right? A cop just writes traffic tickets and hassles Porsche drivers...when he's not beating up minorities, right?
Conan the Grammarian at June 11, 2009 12:12 PM
Conan -
Those are handled on the admissions side. There was one university (Michigan?) that gave 20 points on admission scoring for being black, but only 6 points for being above a certain percentile on LSAT or some such.
Then they use a "social promotion" paradigm to graduate them. And then they sometimes fail the bar, sometimes pass it. And sometimes they make good lawyers, and sometimes they don't.
Because merit and ability are bad words.
brian at June 11, 2009 12:51 PM
That's what I was saying. They don't throw out the results of the white-collar test if not enough of a chosen group pass.
The equality for educated white-collar folks is ensured on the opportunity side (i.e., admissions to the universities and grad schools). The equality for the blue-collar folks is handled on the outcome side (test results) and the opportunity side(admissions to training facilities).
Admissions to the Police Academy are as preferences-laden as admissions to the law school. But then, the results of promotions tests must also fit the preferences scenario.
But the bar exam isn't tossed out if enough don't pass.
Conan the Grammarian at June 11, 2009 2:11 PM
I see what you're saying, but you're missing the fact that there's an outcome-based feedback loop that determines the admissions. If not enough black people graduate, then they give more of the openings to black people on the basis that eventually one of them has to graduate.
Same result, different mechanism.
brian at June 11, 2009 2:51 PM
That's a good point.
I guess I'm just noticing that the test in the higher education white-collar professions is assumed to be sacrosanct whereas the test in blue-collar occupations is assumed to be non-job-related and unimportant...and wondering if that isn't some remnant of class warfare or noblesse oblige.
Conan the Grammarian at June 11, 2009 3:59 PM
It's certainly within the realm of possibility. Neither theory is exclusive, so it could be that both are happening.
brian at June 11, 2009 5:41 PM
One answer to your points above, I'm pretty sure that the people who administer the bar exam, CPA exam, etc are private entities and thus not subject to the same scrutiny. If I weren't posting from my phone I'd search and verify.
Cheezburg at June 11, 2009 6:03 PM
But the exams are required for public (i.e., state) licensing of professions.
Conan the Grammarian at June 11, 2009 10:45 PM
Yep. But the mechanics are someone else's problem. I'm just offering a hypothesis as to why lawyers' and firefighters' test results are treated differently.
Cheesburg at June 11, 2009 11:39 PM
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