Pajamas Media

51 Comments

1. Realist:

Which all goes to show just how stupid and RACIST Affirmative Action is across the board. If people are too stupid to pass the exam the solution is not to make the exam easier for stupid people to pass but to educate the stupid people so they can pass. If even after education they are STILL too stupid to pass the exam then they are too STUPID to be promoted.
Its not rocket science its common sense something which affirmative action supporters seem to have very little of.

Affirmative Action = RACISM just like Tribalism = RACISM just like the Cast System = RACISM.

Jul 7, 2009 - 1:57 am 2. Tom Perkins:

“Before Ricci, the law said that whether an exam was perceived to be fair was less important than whether it had a “disparate impact” on those who took it.”

It isn’t judicial activism to admit that a law is unconstitutional, which is what Ricci does. It is judicial activism, to either affirm a law which is unconstitutional in deference to the legislature, or to strike down a law which is constitutional, in deference to personal political sensibilities.

In other words Ruben Naverette, it’s about the constitution.

Ricci is correct and not a “judicial activist” decision.

Yours, TDP, ml, msl, & pfpp

Jul 7, 2009 - 1:59 am 3. WhyamInotsurprised?:

Mr. Navarrette,

So just how do you “… guard against a bias that may not be obvious?” Is that like proving a negative?

Time to get real. How many decades or generations will it take for a black candidate firefighter to understand the requirements to make it? Physical strength and conditioning, ability to think under pressure, ability to communicate in both written and verbal manners. To know law, life saving, equipment operation, procedures. It shouldn’t be a surprise to anyone. And if someone fails to meet minimum requirements, then they cannot be depended on to do the job safely and effectively.

Cutting people slack just because of skin color is no longer acceptable. The fact that black firefighters have filed many suits is a “So What?” Black activists have used threats, fear and intimidation to get what they can’t qualify for against the competition. It is time for this kind of abuse to stop and the SCOTUS saw it that way. After two generations, it’s time to get with the program, perform, and stop making excuses. The issue is not about fairness, it is about performance. Can you do the job or not? It is not the city’s job to make allowances for the failure of some.

What I see is not judicial activism, it is upholding the constitution and not some civil rights mandate that has outgrown it’s time. Unfortunately, Our Fearless Reader is of the same mindset and so are the numbers of voters who elected him to office. Everyone wants something now. No one wants to pay for it. Life is not fair. They think life owes them something. That is why our civilization is going down the tubes. No one will accept personal responsibility for themselves and their families.

If you fail the test, find out why. Then improve yourself. Train, learn, don’t quit. Try again. That is the opportunity that this country offers. So quit complaining and do something positive about it.

Jul 7, 2009 - 2:13 am 4. Steve:

PJ Media please get this rotten bigot off your site.

Evidently this man would discriminate against my children, my wife and myself to get his egalitarian utopia.

Enforcing the Constitution, the 14th amandment is not activism. If no as ZERO blacks can not beat white people on a test then ZERO black people should get the job.

The 1964 Civil Rights Act is unconstitutional. It violates the 14th amendment by demanding equal outcome. Tell that to the NBA. I could care less what your Gestapo in black robes decided to take upon themselves in 1971.

Navarette you also lied to readers by giving the impression that by discriminating against Ricci and his family the city was worried about the impact it would have on blacks. The city which is a Democrat fiefdom was concerned about threats they were receiving from a black “community organizer”.

So much for fairplay and virtue.

Jul 7, 2009 - 2:40 am 5. Mongoose:

Upholding the law is not activism. What is wriong with you?

Jul 7, 2009 - 3:10 am 6. Steve:

What is really DISGUSTING about Navarrette is that he is acting is if some injustice has been done.

The 14th amendment is quite clear. So clear that a 3rd grade public school student might be able to understand it.

“Affirmitive action” which is nothing more than institutionalized racial discrimination against white working class and middle class people is an abomination.

It is also illegal.

Jul 7, 2009 - 3:12 am 7. Jay:

When Justice Kennedy said that it wasn’t enough for New Haven to fear a lawsuit due to a practice that caused disparate impact but that it must “demonstrate a strong basis in evidence that … it would have been liable,” he meant a legitimate fear not only that New Haven would be *sued*, but also that they would *lose*.

The majority found that there was no rational basis for New Haven to fear that it would lose: the test had been carefully designed, at a cost of $100,000, to be unbiased and race neutral.

That is an important distinction that you sort of gloss over Mr. Navarrette.

Jul 7, 2009 - 4:04 am 8. Steve:

Navarrette states:

“For one thing, they say people shouldn’t think of themselves as victims, and then — the first chance they[white people] get — they cast themselves in that role.”

Go to the Devil you evil man. We are not asking for anything but our equal rights supposedly guaranteed by the Constitution and more specifically by the 14th Amendment.

You think that have a right to discriminate against my family. If that is what this country accepts then it no longer has my allegience.

We must divorce ourselves from these wicked, suicidal people. Our children deserve the meritocracy that is the American dream.

Let’s figure out a way to get away from these people.

Jul 7, 2009 - 4:22 am 9. moron:

According to Navarratte, 40 times for high school, college and pro wide receivers and defensive backs should be ignored because of the disparate impacts on whites and the potential for lawsuits arising from same??? Same for vertical jumps for basketball players?? All of those lawsuits!!!

Jul 7, 2009 - 4:25 am 10. Mike:

Wow, I guess when Ruben got his job, he takes his paycheck and spreads it around to all the members of his “race” who did not get the job that he got. Otherwise, his hiring would have a “disparate impact” on their lives! Wake up Ruben, INDIVIDUALS took a test, some passed, some failed. A man with dyslexia passed it, because he studied hard and for a long time. Let him be an example to the others that did not pass!!

Jul 7, 2009 - 4:35 am 11. sodacrackers:

“The majority knew exactly where it wanted to go with Ricci and it wasn’t above doing a little legal cut-and-paste to get there. All it had to do was brush aside more than 35 years of legal precedent about disparate impact in racial discrimination cases and, as several critics have noted, make new law — a job best left to Congress.”

The only thing wrong with “legal precedent” is that most assuredly many if not most laws passed by Congress (without even being read, I might add) have far reaching and unintended consequences.

Jul 7, 2009 - 5:14 am 12. johnb:

Ruben:

I hate to inform you of this sad fact, but you have a serious disconnect with reality.

When I get on a Boeing 767 headed for my destination, I want the most and best qualified aviator at the wheel, not some poor downtrodden minority who got promoted to airline captain by virtue of a discrimination lawsuit rather than experience and knowledge.

Likewise, if my house is on fire and all my worldly possessions are at risk, I want the best qualified firefighters working at their best to save my home, or perhaps rescue me and my family from a horrible death, not some second rate illiterates who got the job based solely on skin color.

Worst case, God forbid, if I’m ever on the operating table at hospital for a serious lifesaving surgery, I want the best qualified doctor available, not some poor minority who squeaked through medical school on an Affirmative Action program.

Merit, not birthright, is supposed to be the American way, let’s get it right,,, let the best man win, you know, the way it used to be.

Jul 7, 2009 - 5:39 am 13. Peter the Bubblehead:

10. Mike wrote:
Wake up Ruben, INDIVIDUALS took a test, some passed, some failed. A man with dyslexia passed it, because he studied hard and for a long time. Let him be an example to the others that did not pass!!

Peter writes: Bravo, Mike! This is almost exactly what I was writing in a thread about Sotomayor last week that, for some reason, does not seem to be getting through to the loony libs who demand a person has a right to be promoted baesed only on the darkness of his skin, but that a white person has no such right.

Jul 7, 2009 - 5:53 am 14. Bilgeman:

Mr. Navarette:
“What is it about affirmative action that turns conservatives into a squishy bundle of contradictions?”

I suspect it’s the reaction to watching Liberals, for all their high-blown moral rhetoric, acting like the worst sort of ignorant and malicious bigots.

On the one hand, it’s politically rewarding to see them unmasked against the largest ethnic group in the country, (that would be White people), but on the other hand, it’s unpleasant to be discriminated against.

“Title VII of the 1964 Civil Rights Act, as later affirmed by a 1971 Supreme Court decision in a case called Griggs vs Duke Power, says that an employer can be liable for discrimination if a practice (i.e., a promotion exam) has a “disparate impact” on one group. The idea was to guard against a bias that may not be obvious.”

Hmmm, I wonder then if short fat people can sue the NBA for the “disparate impact” non-obvious bias against them…

Oh, and congratulations on managing to pen a post that didn’t trot out the tired old “GOP must ditch Conservatives and reach out to Minorities” theme.
That gag’s so old that it’s growing whiskers on it.

Jul 7, 2009 - 6:06 am 15. antaine:

if the whole notion of “disparate impact” and “affirmative action” was unconstitutional to being with (which many argue that it was), then a decision that bucks it is a constitutionally sound one, not judicial activism, no matter how many other judges upheld the bad law before.

Judicial activism is when a judge seeks to introduce new concepts to American law (that’s the job of the legislature). So saying that something passed by the legislature (even half a century later) is inconsistent with the Constitution based on the constitutional principles that existed prior to the law is not, and can never be, activism.

Therefore, Roe v. Wade was judicial activism, but the Supreme Court invalidating the notion of equality of result as a yardstick would not be.

Jul 7, 2009 - 6:58 am 16. homeroclon:

navarette …you are so funny.

you managed to twist this rather simple issue into something it is not. ¿ que bandera estas volando ?

was there discrimination against those who passed the exam or not. period …… (I need not mention nor should anyone else, the color of those who passed the exam)

the argument that a person would sue because they were black and did not pass and therefore not eligible for promotion is a ruse. a veiled excuse not to hire a non black (to me that is racism) not reverse racism …there is only one form of racism.

to say they (people of color) are disadvantaged in the education system and therefore need a free pass to get the job is also a sad excuse ..and again racism. they have the same options as anyone else. it is they as a group that limit their futures and blame others …and want others to compensate them. i wasn´t specifically referring to the obuma but it fits.

Jul 7, 2009 - 7:07 am 17. davimcg:

Two things:

First, Justice Kennedy is not a conservative. Read his “sweet meaning of life” passage in Casey v. Planned Parenthood to rid yourself of that notion (as well as his majority opinion in the Texas sodomy case, Lawrence v. Texas).

Second, one of the most interesting facts of this case is the New Haven Civil Service Board brought in a black fire chief from another city to opine on the test that was given in New Haven. That black fire chief stated the test was fair and, in fact, he said it was easier than a lot of other tests he had reviewed because study materials actually indicated what would be covered on the test and where the information for those subjects was contained. Thus, instead of having to study all the material the New Haven test takers could focus their study more narrowly.

I guess, Mr. Naverette, the only “fair” thing left to do is give out the answers to the test questions beforehand. I am sure Mr. Ricci, who studied diligently and at considerable personal expense, would find that fairer than being denied a promotion because he is white.

Jul 7, 2009 - 7:34 am 18. blotto:

Navarrette is only projecting. He is the happy recipient of affirmative action and the benevolent largesse of guilt-ridden white liberals. He must support the very thing and political group that has given his life any measure of success. He owes his very existence to the same white liberals and judicial system that has wrought such misery to our nation.

Notice that Navarrette never complains about the lack of diversity in the staffs of white liberals in the Senate and Congress. Or the lack of diversity in the nightly news anchors, college professors, or the staffs of liberal 527 groups like MoveON, HuffPo or Kos. He never says a thing about the lack of diversity with 90% black NBA players or 85% black players in the NFL. Where is the call for disparate impact on white athletes in these sports?

The quality and maturity in Navarrete’s writing clearly demonstrates he is serving only because his white liberal editors allow him to so they can assuage their guilty conscious.

Jul 7, 2009 - 7:41 am 19. Michael:

The Supreme Court in this case did its job. It affirmed “equal protection under the law” and threw out mandated “equal results under the law”.

That isn’t activism. Look in the Constitution for what the courts are supposed to do. It is activism when the court makes it up as it goes along.

Jul 7, 2009 - 7:50 am 20. flying squirrel:

Dude, You were kidding, right? Just to get us goin’. good job.

Jul 7, 2009 - 8:02 am 21. Sebastian Shaw:

Judicial activism is legislating in the guise of upholding the law. For example, Roe vs Wade is a stark example of judicial activism since abortion cannot be found the Constitution. Judicial activism is arrogant isolated justices who believe they hold the political power in their tiny hands as many legislators have ceded authority to the Judicial Branch out of fear of losing their jobs to take a stand on difficult decisions. Judicial activism is picking & choosing winners in legal terms & in the guise of doing something right; it is called Social Justice by Leftists. Justice is meant to be blind & uphold the laws for EVERYONE–not to make the minorities the winners out of political correctness.

Jul 7, 2009 - 8:20 am 22. Paul -Indiana:

Is Navarrette here illegally?

Jul 7, 2009 - 8:23 am 23. Blarty Blarckleblart:

Navarrette is correct. This is what I was trying to explain to you people last week, but you couldn’t hear me because you had your fingers in your ears shouting LALALALALA REVERSE RACISM LALALA SOTOMAYOR LALALALA!!!!!

Jul 7, 2009 - 8:46 am 24. Rob in Katy:

Houston Police Department: they give out answers to minorities and give them a pass on the physical requirements that caucasian candidates must pass. We have reached a tipping point where those that Vote for a Living are stealing from those that Work for a Living. The freeloaders need to be given the boot, those that enabled them need to be imprisoned for treason.

Jul 7, 2009 - 9:06 am 25. Peter the Bubblehead:

To Rob @ #24:
If it is true that Houston has been holding different races to different standards as badly as you describe, has no one taken legal acation against this. What you describe is a direct violation of Title VII of the 1964 Civil Rights Act. And with this recent Supreme Court ruling, it should be easier to hold them accountable to this for those who expend the effort to actually study, learn the material, and get themselves in proper physical shape.

Jul 7, 2009 - 10:09 am 26. Peter the Bubblehead:

Darn the typos you don’t see before pressing ’submit’!!!

Jul 7, 2009 - 10:10 am 27. mhr:

The postal clerks in the small Southern California town I live in, were all white ten years ago. Today they are predominantly Asian. If they were all white, the affirmative action crowd, including the Ricci plaintiffs would suspect white racism at work and void the competitive exams that earned them their jobs. Would they now sue on behalf of Latino, black AND white applicants who did not pass the postal exam, that their absence was due to racism that favors Asians? Logic demands an end to preferential treatment based on race and ethnicity.

Jul 7, 2009 - 10:25 am 28. Blarty Blarckleblart:

The postal clerks in the small Southern California town I live in, were all white ten years ago. Today they are predominantly Asian.

Your small Southern California town must have a heck of a plastic surgeon.

Would they now sue on behalf of Latino, black AND white applicants who did not pass the postal exam, that their absence was due to racism that favors Asians?

They could, but they’d still have to prove it.

Jul 7, 2009 - 10:49 am 29. Ed Wallis:

I second the voice of others here who have said,

“PJM, dump this bigot from lot of writers!”

“War” is “peace.”
“Racism” is “justice”…err…he means, “favoring Blacks” is “14th-Amendment-Equal-Treatment.”

Navarrette does “Newsspeak” so well.

And, “Blarty”, we do not suffer fools here lightly. P!SS OFF, and stay at your loony left sites.

Jul 7, 2009 - 11:02 am 30. Blarty Blarckleblart:

“29″ “Ed” Wallis

“Sorry” if you “find” the truth so “offensive.” Perhaps “if” you “YELL” loud enough “reality” itself will “be different.”

Jul 7, 2009 - 11:09 am 31. Stallywood:

I am black, and all I can say is simply this:
If your black and you can not pass a test, its your fault. If all the black applicants could not pass a test where studying was involved, that says more about the test takers, than the test itself. Sad to say, but it looks as if there is simply a lack of intellect involved here, not some type of evil racism.

Jul 7, 2009 - 11:19 am 32. lee:

It is precisely because conservatives struggle against the “victimhood” mentality that they oppose affirmative action. That policy priveleges a certain “Victim” group (more African Americans and Latinos than a generalized “minority”) which leads to discrimination of other groups. Conservatives support color blind hiring practices based on merit and qualification.

Fire fighting (feels like there’s a proper term for it) isn’t like college admission. If an undeserving candidate is given an affirmative action position, than the potential victims are screwed. You can always drop out of college.

That Ruben insists that a “mostly white” firefighters objected to the original ruling reveals that the author is reluctant to admit some minorities were indeed hurt. There was a Puerto Rican fire fighter involved, if I’m not mistaken. I just don’t understand why Reuben is so disgusted by these “white” individuals, who are probably stellar fire fighters who dedicated their lives to saving others. They deserve a shot at a promotion, and the fact that more minorities weren’t (apparently) considered isn’t their fault.

Jul 7, 2009 - 12:49 pm 33. DavidN:

I’ve always loved this sort of discussion, because people make points like the one Mr. Navarette brings up here, the fact that Conservatives are always decrying people making victims of themselves, and then of course they victimize themselves afterwords. The problem is one of perspective.

Your average conservative objects to people who *aren’t* actual victims of anything granting themselves that status in order to muster support. How are the white (and one Latino) plaintiffs in the Ricci case *not* actual victims, here? I’ve always wondered at this notion that a white person *can’t* be a victim of racism, because white people are assumed to be wealthy, influential, successful, etc., merely by virtue of their skin color. If you don’t get hired for this job because the position was given instead to a black man, don’t worry: next month there will be a Fortune 500 CEO position open, and the interviewer will say, when he sees you, “Oh, no one told me you were white. When can you start?” So you see the Ricci plaintiffs, and all other whites complaining about reverse discrimination, are just spoiled little kids with too many toys already, jealous that the last one went to someone with darker skin. We have to have everything to feel content.

So some poor slob is dyslexic, pays a friend $1000 to make audio recordings of the textbooks he has to study, makes flash cards for another friend to help him review things that will be in the test, studies hard, and passes the test…and is told that the results are invalidated because he’s white, and someone who didn’t study as hard deserves the promotion as much, if not more, than he. Hmmmm….here you have to apply David’s Law. I’m David, and my law is this: to determine whether bias existed in any situation involving an allegation of discrimination, simply do one of two things. Either reverse the races involved, or remove the issue of race completely. If you can satisfy yourself that everyone would have acted the same, then there’s no bias…if you can’t make such a determination, then bias of course was a factor. In the Ricci case, if only black and Latino firefighters passed the test, and all the whites failed it, the city would have been happy to certify the tests and pass out promotions. No one can argue this point; nobody in city government would be worried about whites suing claiming a disparate impact from such a test. Since the reverse situation was handled differently from this one, bias was part of the decision, period. Any attempts to obscure this fact simply don’t add to the discussion much.

Jul 7, 2009 - 1:10 pm 34. Tolbert:

shorter Ruben Navarette –

“How dare them uppity white people exercise their constitutional rights!”

Jul 7, 2009 - 2:53 pm 35. TexasBirdDog:

After reading this asinine article, I was going to unload on Mr. Navarette and explain that under the equal protection and commerce clauses of the Constitution, affirmative action requires judicial activism to exist in the first place. Finally, we have a decision that goes back to the foundation and rights a wrong.

I don’t think I can improve on the preceding slaughter. But, I will suggest that now Mr. Navarette has been handed his hat, someone should show him the door.

Jul 7, 2009 - 2:55 pm 36. Frank:

By reversing Ricci, they weren’t engaging in Judicial activism, but were REVERSING judicial activism engaged in by your hero Sotomayor.

Hispanics can never do any wrong, can they Ruben? God you are such a piece of garbage

Jul 7, 2009 - 3:06 pm 37. Chris Bolts Sr.:

I used to work with Ruben Navarrette. I will just say that he has a strange definition of “judicial activism” if he believes that saying it is NOT okay to discriminate in any circumstance or for any reason is judicial activism.

Judicial activism is what Sotomayor had done. The Supreme Court sought to rein her in before she got on it.

Jul 7, 2009 - 4:00 pm 38. Tom Perkins:

I have to inquire if PajamasMedia can’t please spring for a higher grade of token liberal troll. Surely one out there is willing and able to mount non-trivial arguments for their cause.

Yours, TDP, ml, msl, & pfpp

Jul 7, 2009 - 4:36 pm 39. Dero:

My guess is that for the majority to be formed, they had to agree to not go far enough to change the law, but still find a way to reverse the case.

So we end up with this pile of crap ruling. If they were going to reverse the case, they should have struck down the law. Instead businesses have to deal with crappy muddled jurisprudence.

But that’s the reality of the courts though. People like to pretend it’s cut and dry but the it’s just as much a messy democratic process as the rest of the system.

Jul 7, 2009 - 6:17 pm 40. Dero:

As for “judicial activism…” The supreme court engaged in “activism” because they set a new precedent. That’s not a bad thing or a good thing. It just is. Nothing was found unconstitutional (sorry comment number 2), no laws were struck down BUT the courts set a NEW (incredibly handicapping to businesses) standard for determining disparate impact. Which is the definition of legislating from the bench. Like I said, this isn’t good or bad, it just is. And it’s a necessary role of the court.

Jul 7, 2009 - 6:23 pm 41. AtheistConservative:

This is rather like arguing that if it’s wrong for the speeder to speed, it’s wrong for the cop to speed.

“Affirmative Action” was judicial activism. Fighting it would certainly qualify as the same. But if you don’t fight it, you never undo the damage.

This was a generally poor article.

Jul 7, 2009 - 6:39 pm 42. sheesh:

Wait, wait . . . is it too late to be a victim? I want to be a victim, too. Really really bad. You have no idea how victimy I want to be, or feel, I’m not sure which. But I’m ready, I tell ya. I’ve got more outrage and offense gurgling in my tubes than you can imagine. I don’t want to take ANY responsibility for my country. NONE, you here? I’m a victim, damn it! Just like Sarah Palin. That’s it! I’ve got it . . . the GOV Party . . . the Goyish Obnoxious Victims Party.

L’Chaim!

Jul 7, 2009 - 7:07 pm 43. Peter Montbriand:

Disparate Impact eh? Highly subjective and more or less unprovable. Wouldn’t it be nice if we treated legal issues like auditions to orchestras are done? With the performer behind a curtain.

Jul 8, 2009 - 12:29 am 44. homeroclon:

relax sheesh ..you are indeed a victim.

Jul 8, 2009 - 6:39 am 45. Paul -Indiana:

From #12. johnb…Worst case, God forbid, if I’m ever on the operating table at hospital for a serious lifesaving surgery, I want the best qualified doctor available, not some poor minority who squeaked through medical school on an Affirmative Action program.
=========================================================
In addition, God forbid, if I’m ever voting for a president, I want the best qualified candidate available, not some poor minority who squeaked through on an Affirmative Action program.

Jul 8, 2009 - 10:27 am 46. JayMS:

Rueven is a blathering dolt. Don’t listen to any of the “legal” arguments he makes, not for one second.

Statistical evidence, in the case pass rate of blacks, does NOT automatically prove disparate impact. Plaintiffs must also prove that screening methods are not job related and a business necessity.

Also notice that he leaves some “minor” factoids out of this.

* DeStefano is good buddies with Rev. Boise Kimber, another Sharpton clone. New Haven has a lot of blacks and Kimber helped Stefano win elections

* The test was developed by an independant agency specifically to be job-related and avoid bias. The agency was more than willing to defend the validity of their test in court.

* Sotomayor threw out the case without even authoring an opinion

I guess according to dolts like Rueven New Haven should just keep having tests and throwing them out until they got the desired results. But then wouldn’t that be like having hard racial quotas which are patently illegal?

Jul 8, 2009 - 11:29 am 47. A.W.:

I can’t disagree with this piece more.

First, the author seems to think that because conservatives discourage a victim mentality that they are opposed to any and all lawsuits based on race discrimination. That is not my experience. Instead the “victim-mentality” objection is two fold. First, we grieve that our brothers and sisters among historically discriminated-against groups become so discouraged that they allow the fear of racism and bigotry to hold them back more than bigotry actually restrains them. Second, we object to those who see everything through a racial prism. a prime example of that is when Pete King denounced Michael Jackson as a pedophile and the ultimate race hustler Al Sharpton claimed this was racist somehow.

Second, this article is factually wrong. Contrary to what the author thinks, if Griggs was ever designed to set such a low bar for racial discrimination such as what we saw in Ricci, then it was already overturned, to a degree, by the Civil Rights Act of 1991. That statute specifically stated that the courts were not to require a quota. And yet the city of new haven, for no other reason than the fact that too many white people did too well on their test, wanted to scrap the test. A victory for new haven would have accomplished in fact what the statute forbade: a requirement that cities and employers throw out every test that didn’t achieve certain quotas for black success. There could be nothing less activist than to make sure that every word of a statute is given force and meaning.

And the worst thing about the liberal position on the subject is that it is lazy. I believe that talent is evenly distributed among the races in all areas including fire fighting. I also believe that NH did everything humanly possible to make the test fair according to race. So, bluntly, while I think potential is evenly distributed, I think actual expertise and achievement is not, yes, because of larger forces in society. And as much as we might lament that reality, the fact is that those firefighters who scored the best were probably the best. And when your house is burning down, you don’t want a firefighter who would have been great but for the effects of bigotry; you want one who is great now.

And rather than taking the cheap and easy way out of promoting people who are not yet great firefighters, what new haven should have done was find out why those black firefighters who had the potential to be great were not achieving that potential. And then, figuring out what the problem is, they should have affirmatively worked to develop that potential so that rather than papering over the present deficiencies by a defacto quota, instead they actually made the black firefighters equal.

I will add that in Sotomayor’s short sighted desire to push these defacto quotas, she rubber stamped a lower court decision that actually dismantled much of the law against racial discrimination. The lower court had said that no racial discrimination occurred, in part, because no one received a promotion. You got that? So if next time they throw out the test because “too many n—-rs did too well so they had to have cheated” that precedent would tell us that no discrimination occurred at all. Even most conservatives would say that was hooey.

Jul 8, 2009 - 10:49 pm 48. Caestal:

“If they were going to reverse the case, they should have struck down the law. Instead businesses have to deal with crappy muddled jurisprudence.”
If they were truly attempting judical activism and trying to create law via precedent, that is what they would have done. Instead, they ruled on the case before them, saw that in that specific case, the law had not been properly applied and ruled accordingly. It had nothing to do with “Affirmative action is wrong” or anything as wide-sweeping as that. The ruling simply said you can’t apply the affirmative action law simply based on some vague fear of being sued, especially when (as in this case) the action taken (the test being given) was already properly vetted to avoid racial bias.

Jul 9, 2009 - 2:18 am 49. Federale:

It is not judicial activism to enforce the Constitution. It is judicial activism to create rights that don’t exist and ascribe them to the Constitution. But a Mexican who benefits from affirmative action cannot or will not realize that.

Jul 9, 2009 - 9:50 am 50. Robert O. Lopez:

Ruben, I used to love reading your columns. What’s happened to you?

This article doesn’t make any sense. The judges delivered their ruling. That’s judicial activity — in effect, what judges are paid to do — not judicial activism.

Ruben, are you a lawyer? If you are a lawyer, then the problem is that most of your readers look at the Ricci case with an eye to the human moral implications, not jurisprudence; in other words, most people think what the city of New Haven did was wrong, regardless of whatever sophisticated legal arguments emerge from either side.

If you are not a lawyer, then stop trying to argue like one. There were ample lawyers involved in this case and it went through several different levels of review. The highest court in the land rendered a verdict. End of story. If you want to talk about the case, talk about it as a writer and wordsmith. Discuss it in the way that we laymen care about — is it wrong? Have things changed so that these affirmative action measures no longer make sense? Etc. Don’t descend into jargon you don’t have the expertise to tease out.

Ruben, can you please stop writing about race? You’re becoming a one-note Charlie. It’s painful for me, as a Latino, to have to watch another smart Latino men reduce himself to his race and ethnic background. You are much more than that. Write about other things.

And stop beating the dead horse that is Sotomayor. Even if you think the conservatives are out of line regarding her, the liberals control the whole process in Washington and they are the ones needing greater critique and scrutiny from writers like you. Invest your energies where they are needed.

Ciao,
Robert O. Lopez

Jul 10, 2009 - 3:48 pm 51. Ray:

The Ricci vs. DeStefano ruling by the Supreme Court was one of the WORST rulings ever!!! Mr. Navarette is correct in most of what he says.
To those coming in defense of firefighter Ricci by saying he studied “hard” for this firefighter exam despite having dyslexia…I say baloney!!! I have worked in City Departments in California and know that questions for these exams are passed around among friends and family members, especially if daddy is some big cheese at the top. Kind of like a “good ol’ boy” network. It just shows that the Black firefighters were not part of this good old boy network and didn’t have an easy access to the answers to these exams as the White firefighers did.

Jul 11, 2009 - 9:01 am

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