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Bryan

Gerald Walpin and the New York Times

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Guest Desperate Republicans

Wow. Your "legal training" by right-wing blog can be a dangerous thing. I'll address the key misunderstandings in your most recent posting and leave it at that.

Are you trying to say that the footnote quotation was taken out of context? Was it your insincerity that sabotaged your grammar?

Yes, it was out of context. It was also misrepresented by you.

There's no way the footnote is taken out of context. It has sufficient internal context to stand on its own. And here is the paragraph to which the "footnote was attached (curious you didn't do this in order to justify your claim that it was taken out of context):

A

Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.10

That language (I deleted your bold and font increase) goes to the heart of the case! It's language you don't understand. One more (and last) time: the first sentence of your quoted/big/bold language deals with disparate impact discrimination. Ginsburg concludes there was disparate impact and that justified the city's failure to certify the promotion list. The second sentence goes to disparate treatment/inentional discrimination, which was the claim made by white and hispanic firefighters on the list that didn't get certified. The second sentence is Ginsburg saying there was no disparate treatment/intentional discrimination against the white/hispanic firefighters from the city's failure to certify. In other words, it is EXACTLY the same legal conclusions reached by the district court and the Second Circuit/Sotomayor. You bolded the right language, you just don't get it.

Baloney. The footnote absolutely belies your claim. If Ginsburg had intended to merely say that the lower courts did a fine job then she could have followed Sotomayor's course and simply written that and had done with it. Not only did she not do that, she led off the portion of her dissent following her critique of the majority view with an introduction that included footnote 10. There is no way you can plausibly dance around the content of that note. I'm amused that you're even trying.

Should I add that Ginsburg did not include the root word "affirm" in her dissent, in support of the Second Circuit's decision?/i]

If you read the opinion through, you will see this was a tough legal battle between the majority and the dissent, especially between Ginsburg and Alito's concurrence. It's one of the most important civil rights laws. Ginsburg expressed her opinion on disparate impact and disparate treatment at length -- by her own words in the dissent, she says the majority's opinion will not have lasting power.

As to the affirmance point, let me reduce it to Law 101:

The 5-justice majority REVERSED and remanded the case. The 4-justice minority DISSENTED from the majority.

Can you ever forgive me for reading conservative law blog The Volokh Conspiracy including posts by law professor Jonathan Adler? It's just crazy to pay attention to something written by a blogger!

Yes, if you do it without a critical mind. Try instead reading Justice Kennedy's majority opinion to understand what Ricci was about:

"Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., as amended, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”)."

If that's all it meant, then why did Ginsburg include the part about the lower courts emphasizing intent? If she meant what you say she meant, then wouldn't she have been far better off not blurting out anything that seemed critical of the rationale used by the lower court? Apparently you're not enjoying your cognitive dissonance. So sorry.

You've mixed the two yet again. Per the district court, the Second Circuit and the Ginsburg dissent, the city's failure to certify was not intentionl/disparate treatment discrimination against the whites/hispanics on that list. But it would have been disparate impact discrimination against the African-Americans not on that list if the list had been certified.

The sidebar here is that the conservative/right-wing legal world has been trying to overrule disparate treatment discrimination. They almost succeeded in Ricci; it was restricted significantly, but thanks to Kennedy it is not overruled.

I've got a great idea for you. Try repeating it a million more times. Maybe that will make it true.

Try giving me a response based on the disparate impact versus treatment that was presented in Ricci.

Sotomayor will make a great justice. Ricci was supported by 7 of 13 judges of the Second Circuit (rehearing en banc) and by 4 justices of the US Supreme Court. I can't wait for the next Obama nominations, which I hope will be Harold Hongjo Koh and Kathleen Sullivan. They're brilliant and much more strident about their views, much like Scalia but from the other side of the spectrum. A 70+ vote in favor of the more subdued Sotomayor will open the door for Koh and Sullivan. Bryan, your fun is only beginning!

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Wow. Your "legal training" by right-wing blog can be a dangerous thing. I'll address the key misunderstandings in your most recent posting and leave it at that.

Are you trying to say that the footnote quotation was taken out of context? Was it your insincerity that sabotaged your grammar?

Yes, it was out of context. It was also misrepresented by you.

There's no way the footnote is taken out of context. It has sufficient internal context to stand on its own. And here is the paragraph to which the "footnote was attached (curious you didn't do this in order to justify your claim that it was taken out of context):

A

Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.10

That language (I deleted your bold and font increase) goes to the heart of the case! It's language you don't understand. One more (and last) time: the first sentence of your quoted/big/bold language deals with disparate impact discrimination.

And do I not understand that because I have not bothered to comment on it (appeal to silence) or because I have conflated two concepts (still waiting for the quotation(s) as evidence)?

Ginsburg concludes there was disparate impact and that justified the city's failure to certify the promotion list. The second sentence goes to disparate treatment/inentional discrimination, which was the claim made by white and hispanic firefighters on the list that didn't get certified. The second sentence is Ginsburg saying there was no disparate treatment/intentional discrimination against the white/hispanic firefighters from the city's failure to certify. In other words, it is EXACTLY the same legal conclusions reached by the district court and the Second Circuit/Sotomayor. You bolded the right language, you just don't get it.

If I don't get it, then why did you switch my point from legal reasoning to the legal conclusion? Is it that you don't understand that more than one method of reasoning can reach a single conclusion? Or are you just naturally dishonest?

Baloney. The footnote absolutely belies your claim. If Ginsburg had intended to merely say that the lower courts did a fine job then she could have followed Sotomayor's course and simply written that and had done with it. Not only did she not do that, she led off the portion of her dissent following her critique of the majority view with an introduction that included footnote 10. There is no way you can plausibly dance around the content of that note. I'm amused that you're even trying.

Should I add that Ginsburg did not include the root word "affirm" in her dissent, in support of the Second Circuit's decision?

If you read the opinion through, you will see this was a tough legal battle between the majority and the dissent, especially between Ginsburg and Alito's concurrence. It's one of the most important civil rights laws. Ginsburg expressed her opinion on disparate impact and disparate treatment at length -- by her own words in the dissent, she says the majority's opinion will not have lasting power.

As to the affirmance point, let me reduce it to Law 101:

The 5-justice majority REVERSED and remanded the case. The 4-justice minority DISSENTED from the majority.

And somehow you still haven't gotten around to the text of Ginsburg's footnote, where she states that the rationale for the legal reasoning is presented instead of remanding the case to the lower court occurs because of the decision of the majority. It's a fairly straightforward statement and thus difficult for you to spin. I don't envy you the task one bit.

Can you ever forgive me for reading conservative law blog The Volokh Conspiracy including posts by law professor Jonathan Adler? It's just crazy to pay attention to something written by a blogger!

Yes, if you do it without a critical mind.

Well, see, that's just it. You make like you object, but the objection is couched in terms of an if/then statement. You don't just assume that I read law blogs without bringing a critical mind to it, do you? If you have evidence with which to make a claim that I used an uncritical mind then wouldn't it be appropriate to share it? But thus far that isn't your style, is it? You like to work without evidence.

If that's all it meant, then why did Ginsburg include the part about the lower courts emphasizing intent? If she meant what you say she meant, then wouldn't she have been far better off not blurting out anything that seemed critical of the rationale used by the lower court? Apparently you're not enjoying your cognitive dissonance. So sorry.

You've mixed the two yet again.

Did I mix the two by completely ignoring them or by conflating them? If the latter, please quote the relevant portion as concisely as possible and explain your charge. It looks like you're following the Liar's Manual again.

Per the district court, the Second Circuit and the Ginsburg dissent, the city's failure to certify was not intentionl/disparate treatment discrimination against the whites/hispanics on that list. But it would have been disparate impact discrimination against the African-Americans not on that list if the list had been certified.

The sidebar here is that the conservative/right-wing legal world has been trying to overrule disparate treatment discrimination. They almost succeeded in Ricci; it was restricted significantly, but thanks to Kennedy it is not overruled.

Try giving me a response based on the disparate impact versus treatment that was presented in Ricci.

A response to what? I don't take Ginsburg's footnote as a charge that the lower courts relied too much on "intent" as indicative of their focus on intentional discrimination. And if I'm right then it would not be relevant for me to answer as you request. Your own statement above would seem difficult to reconcile with that supposition. So what is supposed to be the relevance? Your need for a red herring?

Sotomayor will make a great justice. Ricci was supported by 7 of 13 judges of the Second Circuit (rehearing en banc) and by 4 justices of the US Supreme Court.

One vote difference in each case, and she had cooperated in a summary judgment that might have kept the case from progressing up the judicial hierarchy.

Some testimonial.

You're kind of a wannabe Rumpelstiltskin--you're trying to spin straw into gold.

Seriously, you're pretty good at dodging my points and offering up distractions. But who's buying it?

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Guest Desperate Republicans

Lots of words, but you still don't get it. 2 types of discrimination and the City of Yonkers got caught in a whipsaw, damned if it certified, damned if it didn't.

Sotomayor not only dodged a bullet, her terse opinion was masterful. The Judiciary Committee hearing further confirms this. The Republicans are not making headway. To bring in Ricci himself is a mistake -- he would not have been hired in the first place without preferential treatment under the Americans with Disabilities Act.

Sotomayor and Ginsburg are of the firm belief that disparate impact discrimination is a serious conern, much to the chagrin of the right-wing. In Ginsburg's own words, the majority's decision in Ricci will not have lasting power.

Hey, Bryan, there's a rumor that Scalia will retire at the end of this term. Ponder that one for a while! Justice Koh is sounding real good.

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Guest 2smart4u
Lots of words, but you still don't get it. 2 types of discrimination and the City of Yonkers got caught in a whipsaw, damned if it certified, damned if it didn't.

Sotomayor not only dodged a bullet, her terse opinion was masterful. The Judiciary Committee hearing further confirms this. The Republicans are not making headway. To bring in Ricci himself is a mistake -- he would not have been hired in the first place without preferential treatment under the Americans with Disabilities Act.

Sotomayor and Ginsburg are of the firm belief that disparate impact discrimination is a serious conern, much to the chagrin of the right-wing. In Ginsburg's own words, the majority's decision in Ricci will not have lasting power.

Hey, Bryan, there's a rumor that Scalia will retire at the end of this term. Ponder that one for a while! Justice Koh is sounding real good.

City of Yonkers ?? Your understanding of politics is only rivaled by your knowledge of geography. Dummy.

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Guest Desperate Republicans
City of Yonkers ?? Your understanding of politics is only rivaled by your knowledge of geography. Dummy.

You're right, I should have said New Haven.

Do you want to discuss any of the points I raised in an intelligent way?

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Guest Guest
You're right, I should have said New Haven.

Do you want to discuss any of the points I raised in an intelligent way?

When you make an intelligent point I'll consider it.

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Guest Guest
When you make an intelligent point I'll consider it.

Desperate Republicans made intelligent points about how New Haven got caught in a whipsaw, about Sotomayor’s success beyond sound bites and about disparate impact discrimination. True to your right-wing form, you decided to stop at the level of the slogan and the sound bite, and play "gotcha" because DR wrote Yonkers instead of New Haven. Apparently "gotcha" is fine when you're doing it to someone else. Meanwhile, these three points are on the board in black and white, ready for you to find the brains and integrity to address them.

You right wingers are jerks. When you're wrong, you change the subject. Since you're wrong most of the time, you spend most of your time changing the subject, instead of doing the honorable thing: admit that you're wrong, learn something and move on. And because you don't do that, you never learn anything. An entire political party is inflicted with this sickness. It has gotten to the point that it's barely possible to live in the same country or the same community with you. For everyone's sake, grow up and own up.

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