Warshawsky on Ricci

Steven Warshawsky writes:

Just a few observations, after reading the Ricci decision last night:

First, the “conservative” majority did the best they could to balance the dual and somewhat conflicting purposes of the law (Title VII of the Civil rights Act of 1964, which prohibits discrimination in employment), which are to eliminate both disparate treatment discrimination (what ordinary people understand as intentional bias) and disparate impact discrimination (unequal outcomes as a product of biased procedures). Justice Kennedy’s decision does what “conservative” judges are supposed to do: find a reasonable way to harmonize two competing statutory provisions, while remaining true to the statutory framework and goals. The result is a clear victory for the white firefighters. Justice Scalia in his concurring comments notes the inherently problematic nature of “disparate impact” theory, and points to a future decision that might overrule this aspect of the statute as it has come to be interpreted and applied in practice (i.e., employers can be held liable for “unexplained” disparate impacts even in the absence of any evidence of intentional bias). I wish! Finally, Justice Alito in his concurring comments illustrates the underlying racial politics of the case, in a very pointed manner. The situation he describes is typical of any big city in the United States. Considered together, the “conservative” justices’ opinions go quite far in exposing and challenging the “reverse racism” at play in this case. It was surprisingly strong performance.

Now turn to Justice Ginsburg’s dissent (joined by the other three “liberal” justices). The first few paragraphs tell you everything you need to know about the left’s approach to race in this country. First, “the legacy of racial discrimination casts an especially long shadow.” A shadow that, from the left’s perspective, white America never will get out from under. This is Justice Ginsburg’s major premise, and is repeatedly expressed in her opinion. Second, the only appropriate “remedy” for this past discrimination (which, of course, was very real) is racial bean-counting ad infinitum and requiring that the goods of society (here, high-level civil service positions) be doled out according to the demographic makeup of the population. Hence, Justice Ginsburg laments that in New Haven, which is 60 percent minority, “members of racial and ethnic minorities are rarely seen in command positions [in the Fire Department].” The rest of Ginsburg’s opinion merely provides legal window dressing for these a priori political judgments. But there is an ominous tone struck by Ginsburg when she writes: “The Court’s order and opinion, I anticipate, will not have staying power.” That is, Ginsburg recognizes that the left is on the march in this country, and will eventually sweep away these last vestiges of a merit-based ideology. Unfortunately, on this last point, I tend to agree with Ginsburg. So we should enjoy this victory while we can; it may be the last.

July 2

LA replies:

I don’t think Mr. Warshawsky’s last, defeatist remark is true or helpful. The point is to resist and fight against the leftist and nonwhite destruction of America, not reflexively bow down to the other side’s predictions that they are inevitably going to win. That’s what the left always does, in order to demoralize and silence any opposition to their plans. Predictions such as Ginsburg’s should be seen as the standard leftist mind controlling statements they are and be rejected on that basis, not agreed with.

Buck up, Mr. Warshawsky! The battle is not for those who have declared defeat in advance.

Posted by Lawrence Auster at June 30, 2009 12:35 PM | Send

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