« The Politics of Ricci | Main | ENDA (Again) »

June 30, 2009

Comments

I'm not sure if Ricci tells us whether Sotomayor has the appropriate temperament to serve on the Supreme Count or not; but Alito's concurrence most certainly is strong evidence that he himself does not belong there.

I haven't read the concurrence yet, but plan to do so tomorrow. The last two posts tonight seem somewhat rambling in nature, but I am interested to hear what your actual opinions and arguments for the case would be.

It's worth pointing out that Alito's concurrence is, in a very important respect, gratuitous. His launching point for this whole factual inquiry is the notion that the dissent wanted to hold that no reasonable juror could have found that the stated reason for the discrimination was pretext.

But Ginsburg note 10 says: "10The lower courts focused on respondents’ “intent” rather than onwhether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Courtis indeed appropriate, New Haven should be the prevailing party."

In other words, she would have remanded the case, and not affirmed a grant of summary judgment on the issue that Alito discusses. The only reason she engages the discussion is because the Majoriy chose to decide the issue, without remand, the other way.

Remember that Alito was protesting the inclusion of women in Yale, in the 1970's. That isn't right, and says something about him - that he's rather evil.


Giving him a lifetime position of power has got to be like dumping MiracleEvilGro on that evil.

Roberts and Alito are two more good reasons to curse W; we'll be suffering under their evil for 30 years.

Alito was protesting the inclusion of women in Yale, in the 1970's.

That was at Princeton, not Yale (and note that he was 4 years ahead of Sotomayor at both places)

Agree 100% w/ Barry ('cept it being Princeton).

Isn't *this* the whole point of opposing "activist judges"? To prevent this sort of dry-gulching of an otherwise nerdy-but-respectable contention?

In other words, aren't Alito and Thomas (et al) showing exactly the sort of political activism that has had our supposed 'conservatives' clutching their pearls since Reagan?

More than that: isn't this a blatantly political maneuver to damage Sotomayor's confirmation by making her judgment seem faulty?

Thank the Gods we stooped Bork's appointment, or I very much fear we'd have no rule-of-law remaining.

err - "stopped"....

Looking in from way outside the elite establishment, I think Alito's concurrence may reveal something deeper. A thing to remember about Yale and New Haven is that the town and university are, for many of America's elites, a kind of symbolic ground zero in the fight they are waging for this country. There is a sense among some that Yale is an institution that is being taken from them. This isn't, for Alito and his ilk, something abstract. Reverend Kimber looms large to Alito because Reverend Kimber is part of a New Haven activist community that makes a point of getting in the way of Yale going about it's business of credentialing the already anointed elite.

Anyway, that's what it looks like to me from the outside. I'd like to hear from some fully bonded New Haven radicals.

All in all, a fine analysis; although...

"At best, he's seen too many Wire episodes."

Let me just say: do NOT try to put this insanity on David Simon's head.

a “politically important racial constituency” (i.e., black people in New Haven).

Meanwhile, Italian-Americans are a powerless, marginalized group in New Haven politics, as both Mayor DeStefano and US Representative DeLauro can attest. Yes, it's Boise Kimber that runs the city. And by "runs the city," I mean he delivered a close primary victory for his buddy DeStefano in 2001, after which time DeStefano has never been seriously challenged. Alderman Jorge Perez is much more of a troublemaker for the Mayor, and for the record, he's not black. Though I should be careful about mentioning New Haven's Board of Aldermen, because there are thirteen black aldermen out of thirty, representing an almost insurmountable lock on governance.

And imagine if one substituted Justice Alito's mention of Reverend Kimber with "Bishop Rosazza" or "Rabbi Kalmar." But thank goodness, racism is a dead letter, so we can dispense with the Bushey precedent in an eyeblink. Perhaps if Mayor DeStefano had spent a little less effort hating on whitey, and a little more on time machine research, he could have known what the standard was going to retroactively become as of yesterday, and acted accordingly. (And by "Mayor DeStefano," I mean "New Haven's Civil Service Board." But the role of the CSB in this story is a tricky concept to grasp.)

Reverend Kimber looms large to Alito because Reverend Kimber is part of a New Haven activist community that makes a point of getting in the way of Yale going about it's business of credentialing the already anointed elite.

Well, actually, Kimber's association of clergy took Yale's side in its last major fight with the union, even as his puppet DeStefano was inexplicably siding with the striking workers. So you'd think Alito would have empathy for someone else supporting the stronger against the weaker. Whoops, "empathy." I forgot, that only applies to white employees with sufficiently-touching stories.

You weaken your criticism of the concurrence by overstating its inappropriateness in two respects. First, you imply that Alito is doing something wrong by taking his facts from the plaintiffs' submissions. That's what a judge is supposed to do in a summary judgment analysis-view the facts in the light most favorable to the party opposing summary judgment.

Second, you ask "how exactly can a Supreme Court Justice make that conclusion about New Haven politics?" He isn't ostensibly making any conclusions. He's saying that a reasonable jury could make that conclusion from the facts he laid out, which may be a very arguable point, but not the bizarre one you suggest he is making.

That said, it is bizarre to devote so much attention to an unnecessary analysis, and does suggest a hidden agenda. And what I find most bizarre is where Alito seems to say that a jury could find pretext based on what the Mayor might have done had the CSB ruled differently.

He isn't ostensibly making any conclusions. He's saying that a reasonable jury could make that conclusion from the facts he laid out, which may be a very arguable point, but not the bizarre one you suggest he is making.

I've read and re-read this half a dozen times now, and I still don't get how you can assert that Alito isn't making any conclusions, and then immediately follow by explaining the conclusion he came to.

Clarence Thomas -- the Michael Jackson of the bench, but without the talent.

"I've read and re-read this half a dozen times now, and I still don't get how you can assert that Alito isn't making any conclusions, and then immediately follow by explaining the conclusion he came to."

You aren't keeping in mind summary judgment. In summary judgment you have to resolve all possible findings of fact in favor of the other party.

But Sebastian and markg,

this isn't a summary judgment ruling. It would be fine if the Supremes had said, summary judgment is inappropriate when we view all facts in the plaintiffs' favor and therefore the case should go to trial. But they didn't - the Supremes went right ahead and issued a final ruling on the merits. When you're doing that, it's utterly inappropriate to assume the plaintiffs' statement of the facts is correct.

But the city stipulated that it failed to find the test wasn't job related enough under the relevant standards. With that admission, their case falls apart because it effectively acts as an admission that they discriminated against those who did well on the test.

Sebastian,
Be that as it may, it is still the case that Alito's position (in the concurrence publius discussed in this post) was, in effect, that the plaintiffs' version of the facts should be accepted as true and that those facts would form an adequate basis for a final ruling on the merits in their favor. Would you agree that Alito's position in this regard was inappropriate?

The Navigator says: "But Sebastian and markg, this isn't a summary judgment ruling."

The lower court ruling was, and that is what Alito is addressing in the concurrence. He's saying that even if the majority ruling had gone the other way, the end result would not have been an affirm, but a reverse and remand for trial on the pretext issue,because the evidence he recites allows, in his view, a finding of pretext.

Is that understandable? Majority says: summary judgment for plaintiffs. Concurrence says: but even if we hadn't granted judgment, we would have at least granted them a trial.

Like the post said-a completely unnecessary concurrence because the majority did grant judgment, and that's the end of it.

I can't speak to how appropriate or inappropriate Alito's concurrence was.

But of all the portions of the opinion I read with my layman's eyes, I thought most bizarre was Ginsburg's suggestion that the Civil Service Board was politically insulated.

In fact, New Haven's CSB is entirely appointed by the mayor with no input or vetting from anyone else and no other requirements. That's in contrast to Bridgeport and other cities in which the mayor has some input and there are checks and balances including restrictions that the members of the CSB can't have jobs in government and in some places, have to be made up of different political parties.

I just don't see how the CSB can be reasonably described as politically insulated, especially in small town politics. The arrangement between the CSB and mayor seems rife for political corruption.

Again, I have no idea how appropriate or not Alito's concurrence was, but given the makeup of the CSB and their appointment process, the mechanism of Kimber to DeStefano and over to the CSB for implementation seems quite plausible.

(And that's without adding in Kimber's past experience in race baiting in the fire department himself. ("The New Haven Mayor John DeStefano named Kimber a chairman of the fire commission in 2002, but he had to step down from the chairmanship amid a controversy for telling firefighters that people with "too many vowels" in their names might not be hired by the fire department."))

I just don't see how the CSB can be reasonably described as politically insulated, especially in small town politics.

Small-town politics? New Haven, according to Wikipedia, has a population of 124,000. It's the third-largest city in Connecticut.

The comments to this entry are closed.

Blog powered by Typepad