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June 29, 2009

Empathetic Justice: "No Vested Right to Promotion"

Even if they earned it. You've got to love that empathetic female justice:

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."


Posted by Cassandra at June 29, 2009 10:52 AM

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I can't believe (I can, I'm just saying that for dramatic effect) 4 justices said this was ok. At least I get to agree with Thomas as usual.

Posted by: KJ at June 29, 2009 11:00 AM

Yeah, but it was only the 4 female justices:

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

*nothing but net*

Posted by: Cassandra at June 29, 2009 11:05 AM

Thus speaks the 'wise Latina.' I like Clarence Thomas; always have.

Posted by: Cricket at June 29, 2009 11:05 AM

Reading a dissent aloud is often meant to say "we really mean it." Which makes this dissent all the more unbelievable.

Posted by: KJ at June 29, 2009 11:07 AM

In Ginsburg's world it doesn't say Haynes until she gives her permission. If that isn't judicial activism I don't know what is.

I am sadly unsurprised that she would find as acceptable that nobody was promoted, despite the best efforts of some of them, so there is no problem. Except that they are firefighters and some of them are better overall than others. The key word here is firefighter which is not a race issue. If my house is on fire do I really care whatt color the firefighter is who is risking his life on the ladder to save my family and me?

Like we said in the military, it doesn't matter who is in the foxhole with you as long as he/she shoots straight and stays awake on their watch.

Time for Ginsburg and her ilk to go!

Posted by: vet66 at June 29, 2009 11:11 AM

So....it's okay that the qualified caucasians were not promoted,because nobody else was promoted? No harm, no foul?

Posted by: spd rdr at June 29, 2009 11:36 AM

Well spd, if those white firefighters hadn't been so lazy, they would have taken the time and effort not only to learn the material well enough to pass it themselves but also to teach a minority candidate well enough for them to pass.

Serves them right for getting turned down.

Posted by: Yu-Ain Gonnano at June 29, 2009 12:42 PM

Justice Ruth Bader Ginsburg said, "...they had no vested right to promotion."

Correct. However, the suit wasn't about a *vested* right, it was about an *earned* right.

Posted by: BillT at June 29, 2009 12:43 PM

Silly white males. What do you know about empathy or social justice?

All day long you bask in your unearned race and gender privileges, much to the detriment of millions of poor women and minorities whom you oppress simply by existing.

Posted by: Judge Ruth Bader Ginsberg at June 29, 2009 01:05 PM

YUG -- love it.

Posted by: Texan99 at June 29, 2009 01:08 PM

So, let me get this straight: They took a test, worked for it and are not entitled to the promotion.

But someone on the dole, who has not worked for it, is entitled.

Well, alrighty then.

Posted by: Cricket at June 29, 2009 01:18 PM

Cricket, you ignorant slut ...

They lack standing to sue b/c (since no unqualified people were promoted) they can't say that they were *deprived* of the promotions they worked so hard to qualify for :p

The entire concept of "earning" a promotion implies that you are "entitled" to expect it. I though you conservathugs were against entitlements?

Now on the other hand, if employees are "given" a promotion in proportions roughly equal to their demographics in the general population (regardless of whether or not they are qualified) then we have fairness and social justice.

Posted by: Judge Ruth Bader Ginsberg at June 29, 2009 01:29 PM

I get so tired of explaining things to you people.

What we have here is a dearth of the sympathetic and warm brand of reasoning only women are capable of. Now you women who disagree with me are obviously self-loathing tools of the patriarchy and thus you do not qualify as "women".

Are we clear now?

Posted by: Judge Ruth Bader Ginsberg at June 29, 2009 01:32 PM

Another Newspeak gem from the article;

"Sen. Patrick Leahy, chairman of the Judiciary Committee, said Sotomayor should not be criticized for the unsigned appeals court decision, which he asserted she did not write. "Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent,<Half-Vast Observer/Curmudgeon-Comment-Widget inserts Bovine Scat expletive here>" said the Vermont Democrat who will preside over Sotomayor's confirmation hearings next month.

Leahy also called the high court decision "cramped" and wrong."

My flaber is gasted... or what Dick Cheney said.

Posted by: bt-the resident-curmudgeon_hun at June 29, 2009 02:01 PM

Leahy also called the high court decision "cramped"...

...and promptly prescribed a Midol drip.

Posted by: BillT at June 29, 2009 02:18 PM

"Leahy also called the high court decision "cramped" and wrong."
*struggles with ACME Comment Generator Akimbo™, stifles self and sends output to VOID*
Nope, nahhgonnadewit, wouldn'tbeprudent...

Posted by: bt-the resident-curmudgeon_hun at June 29, 2009 02:23 PM

Hey! You're AWOL from the Bad Writing comments!

Posted by: BillT at June 29, 2009 02:29 PM

Snap analysis (always dangerous)

Decision is correct. Alito's opinion strikes me as odd. That doesn't matter.

Ginsberg's opinion matters because Sotomayor is virtually certain to have similar views.

What Ginsberg really says:

"(it may somehow be possible to find a way that) New Haven will be allowed to keep testing until they find a test that the right people pass."

Notice, the test was not for promotion. It established a list of those qualified for promotion. So if you weren't on the list you would not be promoted.

Even if you were on the list you might not be promoted. Ginsberg bases her logic on that.

She contends that discrimination cannot be shown yet because no one was promoted; therefore the appeals court, not the Supreme, should now examine the question of whether New Haven's action was discrimination.

And since the appeals court did not examine that question no final ruling should be made.

I think that is fatally flawed because:

She knows that sooner or later promotions will be made. And thus, someday, some test(s) will select who can get those promotions.

If New Haven did not like the second promotion list they could disregard the results.

i.e If the second test had an unwanted outcome then they could conduct a third test, then a fourth, then .....

A finding for New Haven would signal that you can block Ricci, et al. from promotion as long and often as you wish.

Posted by: K at June 29, 2009 02:51 PM

Ignorant slut: Is that like 'you can lead a whore to culture but you can't make her think?'


I am in a mood. I found a raccoon snitching the cat food (memo to CLUs of 1/4 cup of dry food in each dish), I might actually get an A in my first accounting class and life is good.

Dinner fer tonight: It is a LOVELY, balmy 90 outside with a cool breeze. One of those rare days that justifies living in Georgia in the summer, so we are going with rotisserie roasted chicken, grilled corn on the cob, roasted potatoes and slaw. Homemade peach ice cream.

Life just got really, really good.

Posted by: Cricket at June 29, 2009 04:20 PM

I've always heard that standardized tests like the ACT, SAT and LSAT were culturally biased. I did quite well on those tests, so I'm guessing they were written by Appalachian area hillbilly/red-necks raised by teen-aged moms. I wonder if those same folks did the Firefighter promotion tests.

Posted by: Matlock at June 29, 2009 04:25 PM

Huh, Cricket. After that intro, I was figuring Racoon was on the grill tonight.

Posted by: KJ at June 29, 2009 04:26 PM

As long as it's not possums. Possums in Georgia got guns, or so I heard from Possumtrot; the other white meat.

While I am not qualified to actually analyze or dissect an opinion of the Supreme Court, I would say that this seems another example of the whole notion of Judicial Review run amuck.
The Supreme Court deciding who gets on a promotion list for the fire department in New Haven, Connecticut? Think about it and say it out loud a few times.
Frankly, this is all madness.

Posted by: Don Brouhaha at June 29, 2009 05:19 PM

"Hey! You're AWOL from the Bad Writing comments!"
Wadda ya mean? I always write bad writing comments as opposed to writing comments badly, er, commenting in the worst way... or, ahhh... Oh! The other thread. Sorry, real busy today.

Walkin' Boss has a bug in her overhauls or a roach in... never mind.

Anyway, it's only 90° today so the chain-gang is mustered and on station till the sun goes down.

Ah, shakin' the bush boss! Be right there...

Posted by: bt-the resident-curmudgeon_hun at June 29, 2009 05:57 PM

I figured possum for dark meat. Learn something every day I reckon.

Posted by: KJ at June 29, 2009 06:04 PM

Always the fly in the ointment, I am going to venture that Ginsburg's dissent is truer to the intent of Constitution than that of her many (and righteous) detractors. Her analysis seems to be (at least in the single line quote referenced above) that unless there has been a bona fide denial of rights, there is no fault under Title 7 or the Constitution.

Think about this for a moment. Do the the causcasion fire fighters, while understandably miffed at having the results of their exams tossed out because such results might have left the city open for litigation by black fire fighters, actually have any "right" or "vested interest" in those promotions? I'd agree with Justice Ginsburg that they do not.

Promotions are, or should be, earned by virtue of one's proficiency and competance, and oft times by one's personality, atributes that cannot truly be distinguished by a series of multiple choice questions. I ofar utstripped my own personal capabilities by passing the calculus exam in eleventh grade. That, alone, however, does not make me a calculator, although looks can always be deceiving.

I think (and here I warn you) that Justice Ginsburg is correct, insofar that she has annunciated her belief that unless and until there is actual harm shown vis a vis a protected class of citizens against an unprotected class of citizens (don't even get me started of classes of citizens), then any proactive measures, such as affirmative action, are without legal foundation.

How about them apples.

Posted by: spd rdr at June 29, 2009 06:12 PM

Well, then if affirmative actionn is without legal foundation, why have it in the first place?

No, I don't eat mama raccoons. The silly thing has a nest near the forest that runs through our collective back yards. We have sort of a peaceable kingdom here; deer wander in and graze, possum live near the playhouse and there are foxes, snapping turtles and the like.

Posted by: Cricket at June 29, 2009 07:16 PM

Sounds like tomorrows menu at the Road Kill Cafe...

I was wondering if a post menopausal female member of SCOTUS can write better opinions than a white male if she is post menopausal and on HRT or post menopausal with no HRT? Just asking.

Posted by: vet66 at June 29, 2009 09:09 PM

Some days, the best course of action is just to shut up. Sadly, I am a bit slow on the uptake.

Posted by: Cassandra at June 29, 2009 11:27 PM


If the ruling were upheld and the test re-administered 6 months later with sufficient numbers of the "correct" class passing and the firefighters subsequently promoted, would not the 6 months of the marginal pay increase that was lost be considered actual harm.

If the test were re-administered and sufficient numbers of the "correct" class did not pass, as so was re-administered (again) a further 3 months down the road. Of course, sufficient numbers of the "correct" class did not pass this time either. How long can this go on before it is considered "actual harm"?

Do we really believe the policy "No one can be promoted unless a black person passes a test" is perfectly legal?

Posted by: Yu-Ain Gonnano at June 30, 2009 09:30 AM


I believe that that any loss of income suffered by those qualified to be promoted would fall within the realm of an action for breach of contract, not a civil rights claim. I admit that I am not fully informed as to the nature of the promotional schedules promised to the examinees (i.e., "Those with the top ten scores on the examination WILL be promoted") and so I am loathe to expand the complaint to encompass such other possible causes of action.

Absent a contractual agreement, however, at botttom the plaintiffs' claim sought to hold the City liable for denying them the opportunity, not the right, to be promoted as a result of their test scores.

This thinking is exactly mirrored in the affirmative action programs that the high Court repeatedly has upheld in cases where a caucasian student was denied admission to law school because of the univerisity's stated desire to diversify its student body. The student had no "right" to be admitted to the law school, and the school had every "right" to decide which students it decided to admit. Of course, selecting poor students on the basis of their hair style invariably will ruin both the school and the student, but that is their folly to follow. The student not selected, however, never had a "right" to that position in any manner, shape or form.

Conversely, no member of a "protected class" of citizens has any "right" to admission, promotion, elevation, or any other condsideration based upon their race, religion, nationality, or sexual preference, unless there is a "vested right" that one party can claim has been breached.

And that's why Ginsburg is correct. I expect that every civil rights case brought in the future will quote her regarding the lack of "vested rights." I find this good news, citizens.

Posted by: spd rdr at June 30, 2009 11:56 AM

To my knowledge the normal process is that a person must pass a qualifying exam to be considered for promotion. Passing the test does not guarantee promotion, but it is a prerequisite.

By throwing out the exam, the firefighters were denied consideration for promotion. In your college admissions analogy it would not be saying "you can't come here" but "you can't even apply here".

While the high court has upheld AA in admission cases, and Ginsburg is consistent with those findings, I somehow doubt the Court would allow Wal-Mart to post a sign outside saying "Blacks/Whites/Asians Need Not Apply (we have too many already)" even if their goals were a more diversified workforce. This, even though no one has a "vested right" to work at Wal-Mart.

Posted by: Yu-Ain Gonnano at June 30, 2009 12:20 PM

Well said, YAG, but remember every business is free to hire and fire at will (outside of those icky union states), for any reason, or for no reason, so long as it is not a prohibited reason, such as race, gender, religion, ethnicity, or (now) sexual preference/confusion.

I find your remark regarding "Blacks/Whites/Asians Need Not Apply (we have too many already)" p[articularly amusing in light of the recent report that the University of California system has decided that if all admissions were to be based upon merit alone, the system would be overrun by Asians.

And so, is this country to promote the best and the brightest? Or is it to promote the best and the most equal? Its a tough choice when you're being intentionally hobbled at the gate.

Sins of the father, and all that.

Posted by: spd rdr at June 30, 2009 01:30 PM

And so, is this country to promote the best and the brightest? Or is it to promote the best and the most equal?

To be one or the other you'd have to be consistent. Taken to it's logical conclusion, since no one has a "vested right" in a particular job, then all those prohibited reasons exclusions are themselves unconstitional.

So if you want to say that there are reasons you can't deny opportunity then you can't very well take a "Vested Rights" approach.

I just don't see it as being consistent when you say that "We only accept applicant pools if they are X% White Male and Y% Minority" only violates the prohibition on hiring based on race if X = 100.

Posted by: Yu-Ain Gonnano at June 30, 2009 02:05 PM

Taken to it's logical conclusion, since no one has a "vested right" in a particular job, then all those prohibited reasons exclusions are themselves unconstitional.
Posted by: Yu-Ain Gonnano at June 30, 2009 02:05 PM

Bingo. Now read Ginsburg's comment again and tell me that the Empathetic Left didn't just shoot themselves in the foot.

Posted by: spd rdr at June 30, 2009 04:18 PM

But that would require the Empathetic Left to be consistent.

But as we have already shown: they aren't.

Posted by: Yu-Ain Gonnano at June 30, 2009 06:13 PM

Inconsistentcy is a valuable tool when developed as a wedge. The Dems have no problem employing inconsistency against such blatant idiots as Sanford and Ensign, and then choosing to expand the term's lurid scope to include the "hypocracy" of the "right."

Hey, I'm cool with that. I stand for principles, not for candidates, and not for any party. My principles have never let me down. I don't know exactly how I got here, all things considered, but it'll take an earthquake to move me off the tee.

Being consistent doesn't mean being without fault, but only that when faults arise you are honest with yourself, and then change in a manner consistent with your principles.

And if I could hit .340 I'd be in the Hall of Fame.

Posted by: spd rdr at June 30, 2009 06:51 PM

.340 would put you right near Ted Williams. And that would be fine company for anyone.

Posted by: bt-the resident-curmudgeon_hun at June 30, 2009 08:18 PM

I can hit .30-30, if I have to.

Posted by: Grim at June 30, 2009 08:47 PM

In a civil service system (I sit as a Commissioner for the civil service of my local school district for the non teacher personnel--we've got 1,400 people in the system) you don't have ANY right to a promotion until you've passed the test. And once you've passed the test, then any new vacancy HAS to be filled from one of the top three on the "eligibility list".

The New Haven fire fighters were put through hoops and an examination to qualify for those promotions. There were 14 or so who passed--for what was supposed to be 15 new Lieutenant and Captain slots.

I don't know what world Justice Ginsburg lives on, but down in the nitty gritty blue collar world, those people who passed the test had a gol danged vested right to get those promotions. They've had to wait 5 and a half years, and get a bunch of snotty scotty from people who sit on benches in black dresses. In a word, they don't need that @#$% and they shouldn't have had to put up with it.

Posted by: Mike Myers at June 30, 2009 11:13 PM

Easy, Mike, I'm all with you. The firefighters got their justice today.

But there's justice, and then there is JUSTICE writ large. I can't help thinking that Four of the Black Nine have put themselves in a helluva fix by declaring that a "vested interest" is to be the legal touchstone for future affirmative action challenges. Good luck with that one, your honors.

Posted by: spd rdr at July 1, 2009 12:06 AM

...a "vested interest" is to be the legal touchstone for future affirmative action challenges.

Ohboyohboyohboyoboy! I've got at least *five* vests left from the ol' bartending gig!

Posted by: BillT at July 1, 2009 02:34 AM

This is what really kills me: “In dissent, Justice Ruth Bader Ginsburg said the white firefighters ‘understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.’”

Posted by: traubensilberkerze at January 10, 2010 06:23 AM

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