Thursday, May 28, 2009

Dispelling Soto-Lies, one at a time!

The Republicans have spent the last few days in outrage because Obama nominated Sotomayor to be the next Justices to the SCOTUS. Aside from the blatant fun Brett and I had with her name, there are a lot of Soto-Lies that people are throwing to our soon-to-be justice. R. Thomas Trimble wrote this in the ABH, and I will dispell these soto-lies one at a time:

She apparently "learned" that women, especially Hispanic women, make better legal decisions than white men who do not have a woman's insights, a point she made in a 2001 speech at the University of California-Berkeley law school.

What Sotomayor actually said was:

“I would 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,”

What is important to realize is that she is not saying that she would make a different decision because she was Latina, but because she had a different experience. This experience would not be based on race.

For example, if you had two white males: One who grew up in the projects of NYC, finished high school and moved on to college and law school at prestigious universities and the second who grew up rich in the rural south and did not finish cllege, you can be fairly certain that they would interpret the law and its effects differently.

I understand the law and principals of democracy differently from my parents. We have different backgrounds. My mom, who is a hard working American, did not finish high school and later got her GED. She grew up in the rural south and is conservative. I finished high school, lived in the city for part of my life, then moved to the rural south. I finished high school, college, and am now working on my masters degree. We have differing views on issues that comes from our life experience. And guess what, we are both white!

Trimble also said this:

She also "learned" that justice is truly not blind, but can be adjusted on the basis of race, as shown in a decision in a major Connecticut case, Ricci v. DeStefano, which is being reviewed by the Supreme Court.

The case involves a group of white New Haven firefighters who alleged racial discrimination after being denied promotions on the basis of written tests that no black firefighters did well enough on to be eligible for promotion. Sotomayor joined an unsigned opinion by a three-judge panel that upheld the rejection of the white firefighters' lawsuit.

It's sad that a person who went through so much and came out to be so successful could become a racist in the process, and in so doing deny others the same benefits that accrued to her. Denying others the opportunity to become as accomplished as she is, and doing so on the basis of skin color as in the Connecticut case, is absolutely a racist act.

Here we have fundamental misunderstanding of American legal philosophy and the Civil Rights Act of 1964. Here is what the current law is:

Adverse impact is also known as an unintentional form of discrimination, which occurs when identical standards or procedures are applied to everyone, despite the fact that they lead to a substantial difference in employment outcomes for the members of a particular group and they are unrelated to success on a job. An important thing to note is that adverse impact is not illegal. Adverse impact only becomes illegal if the employer cannot justify the employment practice causing the adverse impact as a "job related for the position in question and consistent with business necessity" (1964/1991 Civil Rights Act, Section 2000e-2[k][1][A]).

For example, a fire department requiring applicants to carry a 100 lb pack up three filghts of stairs. The upper-body strength required typically has an adverse impact on women. The fire department would have to show that this requirement is job related for the position. This typically requires employers to conduct validation studies that address both the Uniform Guidelines and professional standards.

In the case Ricci v. DeStefano case, they were unable to show that a written test was a valid means of deciding promotions. In fact, the city did not sign it because:
On cross-motions for summary judgment, the district court granted the City’s motion, agreeing that the City did not need to certify the results because doing so could subject it to litigation for violating Title VII’s disparate impact prohibition.

While these cases are often times hard to judge, Sotomayor was well within legal precedent regarding Title VII to rule the way she did.