New Haven firefighters win SCOTUS. Issues remain.

White firefighters win Supreme Court appeal By MARK SHERMAN //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....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...say it shows she is a judicial activist who lets her own feelings color her decisions... 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.****Negotiating all the hoops and hurdles and getting to the end usually vests winners. **** Nor have other persons received promotions in preference to them." ****Specious, since it was clear exams would be held and manipulated UNTIL minorities were promoted in preference to them, just not immediately.**** Justices Souter, Stephen Breyer and John Paul Stevens signed onto Ginsburg's dissent,...she predicted the court's ruling "will not have staying power."****Not if political appointments stack the court and stare decisis goes out the window. *****
...only passing reference to the work of Sotomayor and the other two judges...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.****It should be embarrassing for a judge to rule by ukase and not give reasons, however hoked up.****
Sen. Patrick Leahy...(mouthed pious platitudes, as the mental giant he is )...the ruling is a victory for firefighters across the country. "...going to get the best managers as far as firefighters go. That's really important,"...(New Haven) hired an outside firm to design a test ****free of biases****, 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....decided not to use the exam to determine promotions....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.
...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.
... 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. ****She's wrong: reverse discrimination has always been an issue when "disparate impact" has no malign sources. In this case, the exam was RELEVANT to the safety and efficacy of firefighters and was certified by an outside, expert agency to be free of racial/cultural bias. There was, in fact, no statement that there WAS any such bias. It's shocking that 4/9 justices agreed with this position. How can 5:4 decisions become the Law of the Land? At the very least, stare decisisshould not apply to such close vote results. ****