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June 29, 2009

Okay, One More Thing on Ricci

Justice Ginsburg chose to read her dissent aloud this morning, something she does in cases she particularly feels have been wrongly decided.

There is still quite a gap between Right and Left when it comes to race issues. One side has firmly grasped the concept that discrimination on the basis of race is a bad thing in all circumstances. The other believes that discrimination is regrettable but necessary. The problem with this second view--the Left's view--is that the "necessary" justification never ends.

Says the Left: we must discriminate in favor of some groups because they were discriminated against in the past. Well, okay, but how long is the Left gonna ride that horse? Justice O'Connor, writing in a law school admissions race discrimination case six years ago, thought that the use of racial preferences wouldn't be necessary in twenty-five years. Twenty-five years! How did she pick twenty-five years? We will never know. It was, however, a safe bet that she would be long off the scene by then and so not resposible if the anticipated Day When Discrimination is Not Necessary never appears.

That was Justice O'Connor. Justice Ginsburg, even further to the Left on race issues, was not willing to even to go that far. Today it shows again, as she casually discards an objective test for promotion in favor of subjective measures of "command presence" which can result in more defensible decisions based on race. The objective test stands in the way of her preferred result, so it has to go. It is a "flawed test", not because of any proven deficiency in the exam, but because it fails to provide the necessary result.

Wise Latina Overruled 9-0? [ace]: Ed Whelan at Bench Memos argues the decision is actually 9-zip against Sotomayor -- because even Justice Ginsburg says (though only in a footnote) that the appellate court should have remanded the case back to the district court, not summarily affirmed the lower decision.

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posted by Gabriel Malor at 11:06 AM

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