Legal Commentary

Ricci In Depth

Posted on June 14, 2009
Anyone who wants greater knowledge of the facts of Ricci v. DeStefano, the New Have firefighter case, should read Stuart Taylor?s latest column and the deeply informed comments (here, here, here on ?Guest In the Know? on Jonathan Adler?s recent post, ?What Really Happened? in Ricci.

When In A Hole...

Posted on June 14, 2009
?The reckless fiscal policies of the past have left us in a very deep hole,? Obama said last week. ?And digging our way out of it will take time, patience and some tough choices.? Given the enormous deficits and debt Obama is determined to multiply and increase, apparently one of those ?tough choices? is not to stop digging.

Sotomayor: Racist? Racialist? Run Of The Mill Multicultist?

Posted on June 12, 2009
Jonathan Alter, in a Volokh Conspiracy post on Anti-Anti Sotomayor, argued that ?it is inaccurate and unfair to argue, on the basis of this and other speeches, that Sotomayor is a ?racist?? and that ?calling her a ?racialist is just as bad.? To acknowledge, Alter continues, ?that ethnic background and personal experience can and should influence judicial behavior, even while disparaging the ideal of judicial objectivity, is not to embrace racial bigotry...

Sotomayor: Where?s The Beef?

Posted on June 12, 2009
In his widely-read ?In The Loop? political insider gossip column in today?s Washington Post, Al Kamen notes that Sonia Sotomayor, with more than six years of district court and more than 10 years of appeals court experience, goes before the committee with more years of total experience in the federal courts than any Supreme Court justice since ...

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Two Views Of Republicans And National Security: 1) The New Republic?s; 2) The American People?s

Posted on June 11, 2009
From The New Republic, June 11: How The Gop Lost Its Edge On National Security, by Ruy Teixeira From Rasmussen Reports, June 8: For the eighth straight month, Republicans lead on national security. The GOP now holds a 51% to 36% lead on the issue, up from a seven-point lead in May...

Uproar Over Preferential Admissions In Illinois

Posted on June 11, 2009
In a long series of articles the Chicago Tribune has ignited a major firestorm over preferential admissions at the University of Illinois. Not the sort of preferential admissions we usually follow here, but preferential admissions nevertheless. As summarized in the Chronicle of Higher Education, The articles, which examined university e-mail and records dating to 2005, detail the existence of a ?Category I? list at the university for applicants who have been recommended by lawmakers, trustees, or other politically connected people...

Voting Rights ... And Wrongs

Posted on June 10, 2009
IN THE MAIL: From Abigail Thernstrom, Voting Rights ? And Wrongs: The Elusive Quest for Racially Fair Elections. I?ve started reading this, and it is superb. (Although I should say ?re-reading,? since an old professor of mine once observed that scholars never admit to reading anything; they always re-read...

Sotomayor: No Adjectives Of Spanish

Posted on June 10, 2009
I pointed out, here, the incredible silliness of Sonia Sotomayor?s 1996 pronouncement in a speech to Princeton students that ?in Spanish we do not have adjectives. A noun is described with a preposition.? Now the grammar of this self-taught grammarian has been noted on National Review Online?s Bench Memos...

Ruth Marcus Tries To Rescue Sotomayor From Ricci

Posted on June 10, 2009
In the Washington Post this morning Ruth Marcus attempts to rescue Sonia Sotomayor from her decision to deny Frank Ricci, the white New Haven firefighter, the promotion he had earned. Sotomayor is not a ?quota queen,? she argues, because the real culprit is disparate impact law itself...

Left and Right, Together

Posted on June 10, 2009
Drudge is reporting that the gunman who killed the security guard at the Holocaust Museum is an ?89 Year Old White Supremacist? and also that ?Obama's Former Pastor Resurfaces: ?Them Jews aren't going to let him talk to me ....? The far left and far right, it seems, still have something in common...

Liberals Flee From Success...

Posted on June 09, 2009
It is often said that success has many fathers but failure is an orphan. Our liberals, however have reversed this truism. On The Weekly Standard?s blog today Michael Goldfarb makes an excellent point (HatTip to Robert VerBruggen): Sotomayor?s supporters ? most of whom support racial preferences ? insist that Sotomayor is so smart and capable she would have succeeded regardless of any affirmative action policies...

Eating Its Own Tail, Disparate Impact Itself Has A Disparate Impact

Posted on June 08, 2009
On the surface the disparate impact theory of discrimination seems plausible enough (even if not ultimately persuasive) ? why shouldn?t any policy or practice that has a disproportionately adverse impact on one racial or ethnic group be prohibited unless a very, very strong justification for it can be produced? In practice, however, as applied, it often amounts either to a lowering of standards for everyone (as when employers are prevented from using tests to measure qualifications for hiring or promotion) or to being no more than a fancy lawyer-created artifice for plain old-fashioned disparate treatment discrimination...

Sotomayor Held That To ?Cut Slack? For Chinese ESL Students On A Written Exam Was Racial Discrimination Against A Black Student

Posted on June 07, 2009
Recently the Chronicle of Higher Education ran an article noting that ?Supreme Court Nominee Was on the Side of Minorities in Key Cases,? one of which supported ?an individual student who challenged a grading policy as discriminatory.? In that case, Tolbert v...

Is Sonia Sotomayor A ?Wise Latina??

Posted on June 05, 2009
As everyone knows by now, a great deal of attention has been paid to Sonia Sotomayor?s belief (despite the fact that she call?s it a ?hope?) that ?a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life...

New Poll: Overwhelming Opposition To Race Preferences, ?Affirmative Action? When It Results In Race Preferences, Sotomayor?s Support Of New Haven?s Refusal To Promote Firemen Who Passed Exam...

Posted on June 04, 2009
Quinnipiac University has released dramatic new poll results on affirmative action. From the summary: American voters say 55 ? 36 percent that affirmative action should be abolished, and disagree 71 ? 19 percent with Supreme Court nominee Sonia Sotomayor's ruling in the New Haven firefighters' case, according to a Quinnipiac University poll released today...

Sotomayor: No Spanish Adjectives?

Posted on June 03, 2009
On the National Journal?s new Ninth Justice blog yesterday Stuart Taylor passed on Brooklyn College history professor K.C. Johnson?s generally favorable comments on Sonia Sonomayor?s Princeton senior thesis, though Johnson did note a few discordant trendy leftist notes from the 1970s (such as her insistence on calling the U...

Taking Issue With More Sotomayor Coverage ? From Right, Left, and Center

Posted on May 30, 2009
Judge Sonia Sotomayor?s nomination to the Supreme Court, and especially her provocative assertion (which she misleadingly labels a ?hope?) that ?a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn?t lived that life,? continues to excite commentators ? Right, Left, and Center...

A Blank SLATE Re Title VII

Posted on May 28, 2009
Yesterday Emily Bazelon, one of SLATE?s liberal legal writers, wrote that Ricci v. Stefano, the case of the New Haven firefighters who were denied promotions because no blacks passed the promotion exam (see here, citing a bunch of earlier posts), ?is a hard case with bad facts?a case that could do serious damage to Title VII, one of Congress' landmark civil rights laws...

Does ?Equal Opportunity? Require The ?Without Regard? Principle? Let?s Ask Former Yale Law Dean Harold Hongju Koh

Posted on May 28, 2009
Yesterday I discussed (here) the ACLU?s attempt to prevent Quinnipiac University from eliminating its women?s volleyball team, along with two men?s teams, in an effort to cut costs, the sort of decision one might think possessing some academic freedom protections...

What?s ?Empathy?? Easy. It?s Being ?On The Side Of? Minorities

Posted on May 27, 2009
If you?ve been wondering what President Obama means by ?empathy,? wonder no longer. The Chronicle of Higher Education makes it clear this morning, in ?Supreme Court Nominee Was on the Side of Minorities in Key Cases.? President Obama?s nominee for the U...

Quinnipiac Univ. Women Have A Right To ... Volleyball?

Posted on May 26, 2009
Well, yes, according to the ACLU, which is attempting, so far successfully, to block Quinnipiac from eliminating its women?s volleyball team. The Chronicle of Higher Education reports today: A federal judge told Quinnipiac University today that it may not eliminate its women?s volleyball team ? or cut spending on any women?s team ? while the court hears a gender-equity lawsuit over the university?s plans to cut the volleyball team...

Update!

Posted on May 24, 2009
Stuart Taylor Skewers Sotomayor?s Identity Politics ... Sort Of has been UPDATED three times.

Will On Wayward Liberals

Posted on May 24, 2009
In his Washington Post column this morning George Will writes: For several decades, most of the ingenuity that liberal academics have invested in First Amendment analysis has aimed to justify limiting the core activity that the amendment was written to protect ? political speech...

The ?Bloody Shirt? Still Waves. Does It Fly In The White House?

Posted on May 24, 2009
I have had, or in any event taken, several opportunities to discuss both the original and modern versions of ?waving the bloody shirt,? described here as the popular Republican tactic for more than a generation after the Civil War to remind voters of the Democrats? sympathies with the South...

Not Just In New Haven...

Posted on May 22, 2009
You?re all familiar by now with the New Haven Fire Department, which decided not to promote anyone to lieutenant or captain because no blacks passed the promotion exam. (See here, citing a bunch of earlier discussions of Ricci v. DeStefano.) But you probably haven?t heard about the police department that left senior positions unfilled rather than promote whites...

Your Dept. of Justice: Busy Putting Out Fires Putting Down Fire Departments In Virginia

Posted on May 22, 2009
Back in March the Department of Justice settled a lawsuit against the Portsmouth, Virginia, fire department for allegedly discriminating black applicants for entry-level firefighter positions. (I missed this when it happened, and would have continued to miss it if the ever-watchful Roger Clegg had not brought it to my attention...

UPDATE!

Posted on May 22, 2009
Dems Urge A Race-Based Bailout has been UPDATED. Twice.

Stuart Taylor Skewers Sotomayor?s Identity Politics ... Sort Of

Posted on May 22, 2009
How could I not like Stuart Taylor?s masterful dissection of Judge Sonia Sotomayor?s identity politics in his current National Journal column? After all, much of it echoes what I argued here and here, only better. ?So accustomed have we become to identity politics,? Taylor writes, that it barely causes a ripple when a highly touted Supreme Court candidate, who sits on the federal Appeals Court in New York, has seriously suggested that Latina women like her make better judges than white males...

Affirmative Action Bites The Dust ...

Posted on May 21, 2009
... in Malaysia. Malaysian Prime Minister Najib Razak has outlined plans to dismantle the decades-old preferment system for ethnic Malays. He told newspapers in Singapore that the long-term benefits of ending the scheme would outweigh the ?pain?.... In an interview for Singapore's Straits Times newspaper, Mr Najib said that ethnic quotas damaged his country's competitiveness and ran counter to global trends...

Dems Urge A Race-Based Bailout

Posted on May 20, 2009
According to an article in The Hill yesterday, High-ranking House Democrats are urging the Treasury Department to prop up minority-owned broadcasters suffering from a lack of capital and lost advertising revenue amid the economic slump. House Majority Whip James Clyburn (D-S...

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