Supreme Court rules for white firefighters

[jimmy olsen]

Good, denying them a promotion was unfair.

http://www.msnbc.msn.com/id/31609275/ns/politics-white_house/

Supreme Court rules for white firefighters
But high court delays deciding status of anti-Hillary Clinton movie

updated 8 minutes ago

WASHINGTON - The Supreme Court ruled Monday 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.

In another high-profile case, the court failed to decide on a whether a scathing documentary about Hillary Rodham Clinton should be regulated as if it were a campaign ad.

The firefighter ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

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 give Sotomayor's critics fresh ammunition two weeks before her Senate confirmation hearing. Conservatives say it shows she is a judicial activist who lets her own feelings color her decisions. On the other hand, liberal allies say her stance in the case demonstrates her restraint and unwillingness to go beyond established precedents.

Coincidentally, the court may have given a boost to calls for quick action on her nomination.

'Fear of litigation'
In Monday's ruling, Justice Anthony Kennedy said, "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." He was joined in the majority 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."

Justices Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday. Speaking dismissively of the majority opinion, she predicted the court's ruling "will not have staying power."

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

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," said the Vermont Democrat who will preside over Sotomayor's confirmation hearings next month.

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

In New Haven, Nancy Ricci, whose son, Frank, was the lead plaintiff on the lawsuit, carried a large cake decorated with red, white and blue frosting into the law office where the firefighters were celebrating their victory.

Ricci's father, Jim Ricci said the ruling is a victory for firefighters across the country. "Now we're going to get the best managers as far as firefighters go. That's really important," Ricci said.

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty-six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination. The lawsuit was filed by 20 white plaintiffs, including one man who is both white and Hispanic.

MSNBC
Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

"The city could be liable for disparate-impact discrimination only if the examinations were not job related" or the city failed to use a less discriminatory alternative, Kennedy said. "We conclude that there is no strong basis in evidence to establish that the test was deficient in either of these respects."

But Ginsburg said the court should have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.

Until this decision, Ginsburg said, the civil rights law's prohibitions on intentional discrimination and disparate impact were complementary, both aimed at ending workplace discrimination.

"Today's decision sets these paired directives at odds," she said.

Special September session
Regarding the Clinton documentary, the court said Monday it will hear arguments in the case again in a special session on Sept. 9.

The justices said they want lawyers to address whether the court should overturn its earlier rulings on limiting corporate and union contributions in federal elections.

Citizens United, a conservative not-for-profit group, wanted to air ads for the movie in Democratic primary states and also make the film available to cable subscribers on demand without complying with federal campaign finance law.

But lower courts have said the movie looked and sounded like a long campaign ad, and therefore should be regulated like one.

At the time of "Hillary: The Movie," the New York senator was competing with Barack Obama for the Democratic presidential nomination. She is now secretary of state in the Obama administration.

The court's composition will be different by the time it rehears the case. Justice David Souter plans to retire this month, and Obama has nominated Sonia Sotomayor, a judge from the 2nd U.S. Circuit Court of Appeals, to replace him.

Obama and Democrats hope the Senate confirms Sotomayor before the high court session in September.

The movie is unquestionably anti-Clinton, featuring commentary from conservative pundits, some of whom specifically say she was not fit to be commander in chief. One scene, which was used in an ad, shows Dick Morris describing the senator as "the closest thing we have in America to a European socialist."

Morris, who once served as an adviser to former President Bill Clinton, is now one of the Clintons' harshest critics.

Citizens United wanted to pay for its documentary to be shown on home video-on-demand, and for ads promoting the movie to be shown in competitive Democratic primary states.

Federal judges, however, said the movie should be regulated by the McCain-Feingold law, the popular name for 2002 revisions to the nation's campaign finance law. Judges called "Hillary: The Movie" a 90-minute attack ad, rulings that would require Citizens United to identify the financial backers for the ads if they were to appear on television.

The court also said that if the group showed the movie on cable television, financial backers would have to be named and the group would have to pay the cost of airing the movie.

The movie was advertised on the Internet, sold on DVD and shown in a few theaters. Campaign regulations do not apply to DVDs, theaters or the Internet.

Probing national banks
The justices also ruled Monday that state attorneys general can investigate national banks for discrimination and other crimes, but only with a court's help.

The high court ruled that a state attorney general cannot on his own issue a subpoena against a bank that has branches in that state and others. However, the court said national banks are subject to some state laws under the National Banking Act, and an attorney general can go to court to enforce those laws.

"What this decision today says is that states have the ability to enforce their own laws (against national banks) as long as they follow state due process procedures, which generally mean issuance of a subpoena which can be challenged in court," said lawyer John Cooney, a former assistant solicitor general and deputy general counsel at the Office of Management and Budget.

The state of New York wanted the Supreme Court to overturn a federal appeals court decision that blocks states from investigating the lending practices of national banks with branches within its borders. It was supported by the other 49 states.

Eliot Spitzer, then New York's attorney general, wanted to investigate whether minorities were being charged higher interest rates on home mortgage loans, a practice that is prohibited under various state and federal laws. But federal judges said Spitzer could not enforce state fair-lending laws against national banks or their operating subsidiaries by issuing subpoenas and bringing enforcement actions against them.

"Here, the threatened action was not the bringing of a civil suit, or the obtaining of a judicial search warrant based on probable cause, but rather the attorney general's issuance of subpoena on his own authority," said Justice Antonin Scalia, who wrote the opinion for the court. "That is not the exercise of the power of law enforcement 'vested in the courts of justice,'" which the National Banking Act allows.

Both the Clearing House Association, which represents the banks, and the comptroller said the attorney general was interfering with the federal government's supervisory powers.

The 2nd U.S. Circuit Court of Appeals in New York City had ruled that the responsibility for such investigations rests with the Office of the Comptroller of the Currency, a part of the Treasury Department, and other federal agencies.

"Channeling state attorneys general into judicial law-enforcement proceedings (rather than allowing them to exercise 'visitorial' oversight) would preserve a regime of exclusive administrative oversight by the comptroller while honoring in fact rather than merely in theory Congress's decision not to pre-empt substantive state law," Scalia said.

Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito and Anthony Kennedy dissented in part, saying they would have ruled with the New York-based appeals court.

Copyright 2009 The Associated Press.

[derspiess]

[KRonn]

Interesting ruling; saw this in the news earlier.

[Caliga]

Sotomayor: PWNED

[Jaron]

This is a huge step back for racial equality in America.

[ulmont]

Sotomayor: PWNED

Meh.  No shame in 5-4.

[Caliga]

I know but I was trying to be flippant.  Thanks JERK 

[Neil]

Sotomayor: PWNED

Meh.  No shame in 5-4.

Maybe, but there is shame in being a Mexican woman.

[Hansmeister]

Sotomayor: PWNED

Meh.  No shame in 5-4.

No, even the four who voted against the majority repudiated Sotomayor's position.  Sotomayor lost 9-0, the firefighters won 5-4.  The four liberal justices wanted to remand the case back to the district court.  An appeal that Sotomayor rejected with merely a one-paragraph summary judgement got overturned by the entire USSC.  That's a pretty bad performance, maybe she should be on the ninth circuit court instead.

[Syt]

I'm glad about the ruling. It should always be the best person for the job, not the prerequisite gender/race/sexuality combo according to quota.

[Phillip V]

I'm glad about the ruling. It should always be the best person for the job, not the prerequisite gender/race/sexuality combo according to quota.

But the test is fixed for white firefighters, that's what!

[Jaron]

I'm glad about the ruling. It should always be the best person for the job, not the prerequisite gender/race/sexuality combo according to quota.

Yeah, until folks keep deciding the best person just happens to be the white candidate.

[Martinus]

I'm glad about the ruling. It should always be the best person for the job, not the prerequisite gender/race/sexuality combo according to quota.

I am not sure I entirely agree, actually, especially when the job is in a position that is a part of a "team" and is not one that requires a significant skill or experience. In such cases, promoting diversity may pay off better than actually having a non-diverse group composed of "best persons for the job" because there are apparently studies that suggest that the "whole is greater than the sum of its parts" effect is more pronounced in diverse groups.

[Razgovory]

Finially,The white male gets a bite of the apple.  It's been a long struggle my friends, but finially we might get ahead!

[Scipio]

Go whitey!  It's your birthday!  Go whitey!  Go whitey!