Empathy For Ricci

By Big Tent Democrat, Section Supreme Court
Posted on Fri May 29, 2009 at 10:02:31 AM EST
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Please allow me to introduce the argument for empathy - for white males - Glenn Greenwald on Charles Krauthammer (see also CAC's analysis of the Ricci case):

[T]his column today from Charles Krauthammer [presents] (a) the right-wing argument that empathy and political opinions have no place in judicial decision-making and (b) the right-wing argument that Sotomayor wrongly decided the Ricci "firefighters" case because what happened to Frank Ricci was terribly unfair and because affirmative action is a bad policy.

[MORE . . .]

Inveighing against Sotomayor's Ricci decision by touting all the sad things that happened to Frank Ricci (Krauthammer: "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") is to demand that Sotomayor do exactly that which they claim is so inappropriate and which they accuse Sotomayor of doing: namely, deciding cases based on emotion, empthy and political views about affirmative action rather than the law and judicial precedent.

. . . Either judicial cases -- such as Ricci -- should be decided on the law and precedent about affirmative action and discrimination, or they should be decided based on empathy for Frank Ricci and the alleged unfairness of affirmative action. Which is it?

Glenn knows the answer - it depends on whom you have "empathy" for. White males deserve the empathy, as they have had such a tough time historically in the United States, while non-white males have had it easy forever. Particularly when it comes to the Supreme Court, where only 107 of 111 Justices have been white males.

What's so hard to understand about that?

Speaking for me only

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Empathy For Ricci | 57 comments (57 topical)

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Balkin made (5.00 / 1) (#1)
by andgarden on Fri May 29, 2009 at 10:10:08 AM EST

a similar point.

: Beat me to it (5.00 / 1) (#2)
by Maryb2004 on Fri May 29, 2009 at 10:15:46 AM EST

I logged in to point out the same thing.
I also found Orin Kerr's blog post yesterday interesting. If you exclude all the media hacks from the discussion there are some good legal discussions going on about this.

BTD, you said it (5.00 / 2) (#4)
by Stellaaa on Fri May 29, 2009 at 10:20:55 AM EST

The reserve the right to horde all empathy and privilege.

I want to know if people still think the culture wars are finished.

107 of 111 Justices have been white males (5.00 / 1) (#5)
by Capt Howdy on Fri May 29, 2009 at 10:24:41 AM EST

the white mans burden

I wonder (5.00 / 1) (#11)
by TeresaInSnow2 on Fri May 29, 2009 at 10:50:45 AM EST

if Ricci (just Ricci, not the rest) could have gone the Americans with Disabilities route, discrimination on the basis of disability. He was dyslexic, is there any accommodation for dyslexics?

White disabled males haven't had it so easy. If we're considering how few minorities we've had on the court, have we had any dyslexics on the court? Or any other disabled person for that matter? I doubt it, but I could be wrong -- I don't claim by any means to be a Supreme Court historian -- Logic dictates however, that a dyslexic would steer clear of careers that require lots of reading. I'm sure there are dyslexic lawyers, but I suspect they're in far smaller percentage than in the general population.

But I digress.

I think the Ricci case was decided on the law, and I'm personally fine with the facts of the decision, although I do feel that people like Ricci had a right to their outrage. I'm just saying, if Ricci himself had taken a different approach, he may have won.

Indeed (none / 0) (#15)
by Big Tent Democrat on Fri May 29, 2009 at 10:56:23 AM EST

But judges decide the cases before them.


We may have a PWE on the Supremes (none / 0) (#19)
by Cream City on Fri May 29, 2009 at 11:10:19 AM EST

A person with epilepsy, or seizure disorder as it often is called now -- a chronic health condition of at least 2% of Americans and covered under the ADA.

Who? See the Chief Justice's seizures -- if you can find the coverage, which disappeared quickly and with little comment. That's seizures, plural. That means it's chronic and puts him in the 2%.

(Americans who have had one seizure? 10%.)


Roberts in retrospect is really odd (none / 0) (#27)
by Socraticsilence on Fri May 29, 2009 at 11:48:22 AM EST

I'm hard pressed to find a Supreme Court Justice- or frankly any high-ranking government figure, that we know so little about personally. The seizures thing, the late marriage and adoption thing (similar to Charlie Crist except for the adoption) etc., he was made Chief Justice and we never really examined the guy. I mean even Alito faced more scrutiny (Cons would now rather pretend we don't know Alito's resume given how similar it is academically to Sotomayor's and given no one questioning Alito's intellect).


: I agree. Can Roberts really be (none / 0) (#56)
by Cream City on Fri May 29, 2009 at 11:46:57 PM EST

so bland? I don't think so. Well, we will get many decades ahead to find out more about him.
And I agree that the level of scrutiny varies incredibly -- but it was the job of the Dem Senators, including the one in the White House, to demand more about Roberts. There 'tis.

Here's (none / 0) (#30)
by jbindc on Fri May 29, 2009 at 11:58:19 AM EST

a list of famous people with dyslexia or other learning disability.

Politicians & Military Leaders include:

Winston Churchill, George Bush, George W Bush, Dwight Eisenhower, Benjamin Franklin, Michael Heseltine, Andrew Jackson, Thomas Jefferson, John F. Kennedy, Nelson Rockefeller, Woodrow Wilson, George Washington, Thomas Jonathan, 'Stonewall' Jackson, George Patton.

Attorneys / Law related include:

David Boies (Attorney), Erin Brockovich (Investigator), Jeffrey H. Gallet (Judge), Nelson Rockefeller (former Governor of New York)

And don't forget - Sotomayor has Juvenile Diabetes


I believe (none / 0) (#55)
by BackFromOhio on Fri May 29, 2009 at 02:01:08 PM EST

David Boies is dyslexic!


Ricci was discriminated against... (2.00 / 0) (#3)
by JoeCHI on Fri May 29, 2009 at 10:20:35 AM EST

...because he was white.

I hope he wins his appeal.

White man's burden (5.00 / 0) (#6)
by Big Tent Democrat on Fri May 29, 2009 at 10:33:07 AM EST

Makes me wonder what you saw in Hillary frankly.


How was Ricci discriminated against? (5.00 / 2) (#20)
by ding7777 on Fri May 29, 2009 at 11:17:09 AM EST

No one was promoted based on that test; the test was not cerified.

Ricci spent 6 months studying (13 hours a day) only to come in 6th place on test that may have been (unintentionally) biased against minority candidates. Where would Ricci score if the test wasn't flawed against minority candidates?

: Bingo (none / 0) (#48)
by gyrfalcon on Fri May 29, 2009 at 12:51:49 PM EST

Have you actually read about the case (none / 0) (#7)
by Socraticsilence on Fri May 29, 2009 at 10:44:37 AM EST

beyond the human profile stuff? The test Ricci took was changed because the massive disparity is pass rates led to the appearance of discrimination and would have left the city wide open for a law suit- this was not a classic affirmative action case in the "UM Law School" fashion (even cases like that need to be given context given the far greater number of preferential admits due to legacy and connections).


It's not even an affirmative action case (none / 0) (#8)
by Big Tent Democrat on Fri May 29, 2009 at 10:46:06 AM EST

It is a Title VII case - you know, the ones conservatives usually abhor.


and (5.00 / 1) (#9)
by Capt Howdy on Fri May 29, 2009 at 10:49:51 AM EST

as I understand it, she did not impose her will on the city but only did her job of confirming that the city was within its rights to do what it did. something the conservatives are supposed to like.


: Its even worse than that (5.00 / 1) (#12)
by Socraticsilence on Fri May 29, 2009 at 10:52:08 AM EST

she followed established precedent- Conservatives would have liked Sotomayor being an "activist judge" (just another example of the incredible ambiguity of that term).

: There is a phrase for that (5.00 / 1) (#14)
by Big Tent Democrat on Fri May 29, 2009 at 10:55:43 AM EST

"judicial restraint."

Man its (none / 0) (#10)
by Socraticsilence on Fri May 29, 2009 at 10:50:00 AM EST

been so tough for me growing up white and upper middle class, you wont believe the obstalces I've faced- Rosa Parks has nothing on me.

Look, a very good case could be made for shifting from Race and Gender based Affirmative Action to a class based system, but no one wants to go there because it would offend interest groups on each side:

The Left would be offended because there is a very persuasive case where regardless of class and education Hispanics, African-Americans and Women still do not have equal opportunity and outcomes (the latter of the two is what leads tools to go all "Bell Curve")

The Right would be offended because they hate the poor and the lower middle class.


Ok then, (none / 0) (#16)
by bocajeff on Fri May 29, 2009 at 10:57:22 AM EST

Since the African-American unemployment rate is much higher than white Americans then I suggest you quit your job on the condition that your replacement is African American. This way you give an African American an opportunity not afforded to him/her while you take a hit for the team. Since you are white you will have problem getting another job and will be able to continue living with the privilege you've inherited.


Heh (none / 0) (#17)
by Big Tent Democrat on Fri May 29, 2009 at 10:59:28 AM EST

Red herrings are always the way.

why do you object to a governmental approach to this problem?


White Man's Burden is not an argument (5.00 / 1) (#28)
by jerry on Fri May 29, 2009 at 11:50:59 AM EST

I am not opposed to a governmental approach. I am concerned and opposed to certain governmental approaches.

Why BTD, why are you opposed to a governmental approach regarding how our government keeps our citizens safe from terrorists? Answer, you are not opposed to a governmental approach. You are opposed to certain governmental approaches.

I believe you are a better lawyer than this. I find the way you dismiss arguments with ad hominem attacks repellent and beneath you and beneath Talk Left.

I can
a) agree that Sotomayor ruled according to law
b) believe that Ricci was discriminated against
and not have anything of those beliefs due to some white man's burden or any sort of claim of racism against me.

And it greatly saddens me that at TalkLeft, more and more, that is what happens to people who dissent: they are labeled as racists, they are labeled as sexists. Please leave that crap for the other blogs.

I would greatly prefer posts and comments that respect people and discuss the actual issues than posts and comments that rely on attacking people as racist or sexist.

Some of the issues I would love to read more about:
* The progressive liberal view of equality of outcome vs. equality of results
* given the apparent history of how the test in Ricci was created, (created by a diverse group of experts with absolutely every intent to create a test to promote without racism) what do we make of Title VII which seems to declare this test defacto discriminatory because of its outcome
* the apparent lack of knowledge of statistics or testing techniques or scientific methodology in Title VII. The test was used only once, on a small sample size, is it true that scientifically there is no reason to conclude the test was racist? And if so what does that say about laws and judges and stuff like that.


Equality of opportunity vs. equality of outcome (none / 0) (#32)
by jerry on Fri May 29, 2009 at 12:01:12 PM EST

This was stated wrong: "* The progressive liberal view of equality of outcome vs. equality of results" and should of course be:

* The progressive liberal view of equality of opportunity vs. equality of outcome


that's nonsense (none / 0) (#35)
by Big Tent Democrat on Fri May 29, 2009 at 12:05:02 PM EST

Equality of opportunity is what this is all about.

As I say throughout in this thread in response to you, you are a parrot of Stuart Taylor, Jr.

State your views, but do not falsely call them the "progressive view" on these issues. They are not. They are the Center Right view at best.


My understanding is that Title VII's view of the (none / 0) (#37)
by jerry on Fri May 29, 2009 at 12:26:11 PM EST

test was equality of outcome.

I am not the lawyer. I would be very appreciative if a legal blogger would discuss these issues and help me understand that which I, a layman, do not.

Instead the nearest proxy I have to that is you, who seems to assume something along the lines of: A) BTD said it, nothing more needs explanation, B) Everyone is at your level of knowledge of these affairs.

Now, my understanding is the argument is that Sotomayor ruled according to the law. And I accept that. But I have also read, and I am in little position to dispute or verify, that the law basically said that regardless of all other facts, if the test creates an outcome that perpetuates a racial difference, than the test is defacto racist, regardless of how the test was constructed, or the inputs to the test.

I don't know if that is true, it would be nice to be able to ask the question without being called a racist, and without having my progressive credentials questioned.

I would like to know if my characterization that I read elsewhere is close to the truth or not.

Assuming it is close to the truth, it seems to me that this part of this law was more about equality of outcome, and not equality of opportunity.

Assuming you my characterization anywhere close to the truth, I would be interested in learning why you understand that to still be about equality of opportunity and not equality of outcome.

I am not interested in being called a racist just for asking questions.

I honestly appreciate TalkLeft for being a venue in which I could ask such question, and I honestly thought that appreciating people's diverse views, and encouraging people to ask questions was a central progressive tenet.

But perhaps I am wrong.


Your understanding is wrong (none / 0) (#42)
by Big Tent Democrat on Fri May 29, 2009 at 12:33:42 PM EST

Title VII focuses on equality of opportunity.

More evidence of your reactionary views imo.


Sigh. (none / 0) (#45)
by jerry on Fri May 29, 2009 at 12:43:10 PM EST

"Title VII focuses on equality of opportunity.

More evidence of your reactionary views imo."

What does Occam's razor tell you?

Jerry is wrong because he is not a lawyer and ignorant of the law
Jerry is wrong because he is not a lawyer but is a reactionary (though he says he isn't and he participates at all these liberal blogs....)

If Occam's razor answers you (2), perhaps you should try a new Gillette.

I asked a series of questions that I would hope would indicate some interesting issues regarding law, and science even, and society and affirmative action. I suspect you have some knowledge which you could use to illuminate the issues.

Anyway, I have to go to work.


: Occams razor tells me (5.00 / 0) (#47)
by Big Tent Democrat on Fri May 29, 2009 at 12:47:31 PM EST

that a layman who assumes that Title VII is focused on equality of results listens to too much Rush Limbaugh and does not know what they are talking about and is quick to adopt the white man's grievance that life and society are sooo unfair to the white man.
It makes me question such a person;s mindset.

Yes (none / 0) (#34)
by Big Tent Democrat on Fri May 29, 2009 at 12:03:45 PM EST

I have already recognized you asa Stuart Taylor acolyte.

Look, at least have the decency to call yourself a "Centrist" like Taylor. then you'll come closer to truthful labelling.

you are entitled to your opinions, but polease be honest in how you label yourself.

your views are the antithesis of progressive on this issue.


I have no idea who Stuart Taylor is (none / 0) (#39)
by jerry on Fri May 29, 2009 at 12:28:53 PM EST

Isn't he the guy you apologized once to already when you jumped the shark and called the guy a racist or a jerk or something when you really had no reason to?

If you want to present me with your list of prerequisites for
a) reading TalkLeft
b) reading your posts
before I am qualified to ask questions or state opinions, please do so and I will take them under consideration.


: I apologized for calling him a liar (none / 0) (#41)
by Big Tent Democrat on Fri May 29, 2009 at 12:32:54 PM EST

not for criticizing his views.
BTW, I also insist that Taylor refer to himself a s Right wing commenter, which is what he is. And more and more, I am convinced you are on these issues.

Thank you! (none / 0) (#44)
by JoeCHI on Fri May 29, 2009 at 12:37:59 PM EST

Actually, I don't (none / 0) (#18)
by bocajeff on Fri May 29, 2009 at 11:08:20 AM EST

I believe that we need an egalitarian society in order to thrive and anything less will always hold our society back. I also believe in the richness that diverse cultures can bring to a society.

However, it's not really a red herring if you were one of the firefighters. It's easy to have the conversation when it's about someone else. I don't know if you remember the classic "All in the Family" episode where liberal Meathead lost a teaching job because of the Affirmative Action he so loudly espoused.

Now, one can argue about the law and that's all well and good. But what about the social and personal implications that follow?


: The point is (5.00 / 2) (#26)
by jbindc on Fri May 29, 2009 at 11:48:03 AM EST

if I understand the case correctly, Ricci didn't lose a job or promotion because a lesser qualified minority got it - the city just canceled the results of the test, so NO ONE got promoted based on the results.
I feel for this man - I truly do. But he was not singled out.

: It's a red herring (none / 0) (#22)
by Big Tent Democrat on Fri May 29, 2009 at 11:25:37 AM EST

whether you are a stakeholder or not.

: I really have a hard time thinking (none / 0) (#25)
by Socraticsilence on Fri May 29, 2009 at 11:44:11 AM EST

of cases where modern AA has resulted in someone being fired- heck the only cases I can think of ever (even back in a more rigid quota style system) are in "up or out" jobs- which exist almost entirely in the public sector (I can't think of private sector examples) namely in the military.

You do realize (none / 0) (#24)
by Socraticsilence on Fri May 29, 2009 at 11:41:48 AM EST

That Absolutist reductivism can be used to make any position look ridiculous- from those I do find ridiculous-

"Abortion is a Holocaust" - then what are you doing protesting if its an actual Holocaust and is occuring in front of you everyday then just sitting there seems to be the height of moral cowardice.

To those that are entirely rational

Opposing torture (the ticking time bomb example- which actually doesn't work logically but allow me to indulge for a second)

Supporting the right to bear arms- if the second amendment is read to mean individual possession of firearms where should we draw the line

Or limited affirmative action (say balancing test scores so that a kid who scores 1350 of the old SAT but only takes it once while working a full-time job, has the same chance at admission as a kid who scores 1425 on his/her third try after intensive personal test coaching)- and the absurdity you presented.

While the slippery-slope and other tactics have their place, over reliance on them is generally a sign of a weak position- see the right on torture.


In this case, I don't think it's absolutism, more (none / 0) (#31)
by jerry on Fri May 29, 2009 at 11:59:32 AM EST

like them vs. me-ism.

I am amused/appalled at the number of people who claim themselves to be empathetic, progressive, liberals who loudly claim themselves okay with this specific kind of affirmative action that relies on equality of outcome when it happens to other people.

I am often taken with suspicion that if it happened to them, they might feel differently.

That's why the "White Man's Burden" argument, as I understand it, falls so flat.

My real short take on this is Star Trek III vs. Star Trek IV.

We have alot of self-claimed liberal bloggers, often male, often "white", often professors or other professionals talking about how cool affirmative action is, and needed it is, and how, while it is a shame that Ricci didn't get the promotion, it is okay.

And yet, these guys are white male professionals in fields that could use more diversity. I don't see them willingly resigning their positions for other people. And they could do so.

What are they waiting for? Just as we laughed and cried at the chickenhawks egging war on who wouldn't sign up, what is stopping all of these white liberal male professor bloggers from resigning so that we could get more voices in? Why do they need some test to force the issue, why can't they make this step on their own?

If it's absolutism, than so was our attacks on the chickenhawks.


Appalled are you? (5.00 / 0) (#33)
by Big Tent Democrat on Fri May 29, 2009 at 12:02:03 PM EST

How you think of yourself a s"progressive" on these issues is beyond me.

You sound like Stuart Taylor.

Please,a little truth in advertising from you.


So that's a good question, but since all you can (2.00 / 0) (#36)
by jerry on Fri May 29, 2009 at 12:17:41 PM EST

do is insult me and call me a racist, why would I waste my time responding?

"How you think of yourself a s"progressive" on these issues is beyond me."

I think of myself as a progressive because (no particular order)
* my personal philosophy
* my understanding of what progressives have stood for
* my believe in what progressives should stand for
* my voting record

There were times people wanted to know how a Walmart lawyer could claim himself as progressive, and they thought everyone of his posts should carry a disclaimer, a bit of truth in advertising, but I thought those folks were way off base.


Did I call you a racist? (none / 0) (#38)
by Big Tent Democrat on Fri May 29, 2009 at 12:26:48 PM EST

I imagined you made a racist remark when I did so.

Do you have a link?


White Man's Burden (none / 0) (#43)
by jerry on Fri May 29, 2009 at 12:37:11 PM EST

My understanding of the use of "White man's burden" in response to an argument is that it is shorthand for calling someone a racist.

I responded to a post above discussing White man's burden by saying I dislike the way people here ask questions or state opinions with the inevitable result being ad hominem attacks of racism or sexism.

You responded to my post by attacking me. I'm not a progressive. I am an acolyte. I am an acolyte of Stuart Taylor (I have no idea who that is.)

I have no idea what you are talking about or why you are attacking me.

I really and truly was brought up to think that being respectful of other people, of respecting "question authority", of asking questions, of encouraging questions was a progressive ideal, and I believe I can see that in the past this was one ideal that definitely separated progressives from conservatives. Perhaps I have been wrong about that (along with my teachers.)

What precisely do you mean by saying "White Man's Burden"


: Really? (5.00 / 0) (#46)
by Big Tent Democrat on Fri May 29, 2009 at 12:45:30 PM EST

Well, if the shoe fits.
Let me explain to you what I mean by it - to me it is pointing out the ridiculousness of white males complaining about the unfairness of society towards white males. It reflects a denial of what should be obvious to any sentient being- that our society and our history have completely and utterly advantaged white males and continues to do so to this day.
That the idea of "equality of opportunity" that does not take these irrefutable facts into account is a sick joke.
That adoption of such rhetoric is the province of reactionary Republicans and in some cases, racists.
Only non-progressives and Centrists could by into this nonsense.

BTW (none / 0) (#40)
by Big Tent Democrat on Fri May 29, 2009 at 12:31:35 PM EST

I call myself a Centrist, despite representing Wal-Mart, Shell, Unilever and any number of evil corporations.

I certainly never argue that I represent the progressive view on anything.

I represent MY view.

Ergo, "speaking for me only."


I enjoyed reading (none / 0) (#13)
by lilburro on Fri May 29, 2009 at 10:53:56 AM EST

Richard Thompson Ford's article on the subject yesterday.

Sort of off-topic, but I'm sitting here watching TV and the View is discussing with the new Idol judge the possible impact of Conservative Christian voters on the results of this year's season. The Idol judge says she believes we should only judge based on talent. Yet there are so many questions raised about Adam's identity and how it may have had an impact on the way people voted...this stuff is in our faces all the time.

From what Ford says the test does sound poorly designed -

The city was also in a bind because its agreement with the firefighters union required that the exam count for 60 percent of the decision about whether to promote each candidate and because a city charter rule required that every promotion go to one of the three top-scoring candidates. These rules magnified the disparate racial impact of the exam--no black candidate and only one Hispanic candidate was eligible for promotion, even though several of them passed the test. More reason for the city to worry about a lawsuit by the African-Americans who were to be passed over.

The structure of promotion seems to be the problem here. It's not that within that structure Ricci was replaced by someone else, due to Ricci being ethnically white. It's that the structure didn't offer equal opportunity and thus New Haven had to rethink it. Doesn't seem so hard to understand...

I am becoming more and more certain (none / 0) (#21)
by tokin librul on Fri May 29, 2009 at 11:20:54 AM EST

that the Pukes are attacking So-So Sonia to disguise their pleasure in her nomination and to give her cred (which she doesn't deserve) on the 'left.'

I dont know (5.00 / 1) (#23)
by Capt Howdy on Fri May 29, 2009 at 11:28:35 AM EST

I think you may be giving to much credit to a group that seems unable to organize a tinkle at a beer bust.


The Pukes gotta be ecstatic. (2.00 / 0) (#52)
by tokin librul on Fri May 29, 2009 at 01:40:05 PM EST

Obama could hardly have nominated a person better suited to, or more in tune with, the current corporat/OPUS DEi-ist conservative majority. She may vary from the center-right consensus on some wedge issues, but where the rubber meets the road, in governmental authority, corporate privilege, and regulatory relief, she's safe as houses...


they dont seem very ecstatic (none / 0) (#53)
by Capt Howdy on Fri May 29, 2009 at 01:51:26 PM EST

they seem at best resigned and at worst apoplectic


: or vice versa (n/t) (none / 0) (#54)
by Capt Howdy on Fri May 29, 2009 at 01:51:58 PM EST

: She's the VERY BEST (none / 0) (#57)
by tokin librul on Sat May 30, 2009 at 01:41:48 PM EST

the Pukes could have hoped for under the circumstances.
A corporatist/centrist/authoritarian/Roman Catholic? Chuy! How is she different from Scalito?
Obama buckled to Puke pressure even before they applied it...as usual

ROFLMAO! (none / 0) (#49)
by gyrfalcon on Fri May 29, 2009 at 12:53:40 PM EST

Oh for god's sake (5.00 / 1) (#29)
by Socraticsilence on Fri May 29, 2009 at 11:51:11 AM EST

that's just ridiculous, I mean just two weeks ago a lot people thought Obama didn't have the spine to nominate Sotomayor, but now that he does she's some sort of plant- wtf?


: It's (none / 0) (#50)
by Ga6thDem on Fri May 29, 2009 at 01:22:53 PM EST

the eleven dimensional chess argument in reverse and it's silly no matter how it's put forth.

Well (none / 0) (#51)
by Ga6thDem on Fri May 29, 2009 at 01:25:54 PM EST

I agree with Greenwald her but at least Krauthammer is criticizing her for her rulings here and not her hairstyle or some other junk.