Conservative justice and the Ricci firefighter’s case

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In the developing fight over the nomination of Judge Sonia Sotomayor, some conservative Republicans such as Newt Gingrich, Rush Limbaugh and Tom Delay are raising the charge that she is “racist” and would be an “activist” judge bec

In the developing fight over the nomination of Judge Sonia Sotomayor, some conservative Republicans such as Newt Gingrich, Rush Limbaugh and Tom Delay are raising the charge that she is “racist” and would be an “activist” judge because of her ruling in the Ricci vs. DeStephano case.

Better known as the New Haven Firefighters’ case, its opponents apparently believe that activism only applies to Democrats or liberal judges.

Moreover, the recent preliminary arguments before the Supreme Court suggest that the Conservatives on the court are poised to attack Title VII of the 1964 Civil Rights Act, which protects those excluded by testing devices. This has been settled law for over 35 years.

The role of political Conservatives in the modern era, as it has been historically, is to protect white interests, not to ensure that the law is fair to all groups in society. In fact, some whites of this persuasion appear to live in a bubble of majority power, where the legitimate interests of other groups are perceived as a threat and where decisions defending their narrow group self-interests are perceived to be objective.

The 1964 Civil Rights Act (Title VII, section 7h) prohibited the use of tests that would be used intentionally to discriminate, or tests that would be used without the intention to discriminate but would nevertheless have an exclusionary (disparate) impact.

The continuing importance of this is that the Equal Employment Opportunity Commission (EEOC) has found that in 2007 discrimination charges involving test screening of job applicants have significantly increased due in part to security concerns raised by 9/11 and the economy.

Now all of the protected groups under Title VII, such as the Age Discrimination Act and Americans with Disabilities Act, are protected from biased testing, in addition to African-Americans. So, any change in the law that seeks to invalidate Title VII for Blacks would also affect others in these categories. Yet, activist conservatives on the Court seem poised to do so.

My suspicion, however, is that the Supreme Court conservatives see red meat in the charge that white firefighter Ricci makes – that the City of New Haven’s attempt to comply with Title VII is, in itself, race discrimination against whites who are protected by the principle of “equal protection of the laws” under the 14th Amendment of the Constitution.

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