It took the story of one firefighter to expose the tension between fairness and affirmative action.Read the whole thing, at the link. See also, "Thoughts on this Term and the Next." And the readings at Memorandum.
The nation's four most prominent liberal justices ignored that tension Monday. By consequence, the liberal justices decided that equal outcome should trump equal opportunity, when the two values compete. And in that decision, supported by a chorus of liberal analysts, American liberalism continued decades of thinking that places diversity, not fairness, as its first principle ...
The uniform liberal view on affirmative action, or any legal issue for that matter, takes on a heightened resonance today. Democrats are hoping President Obama marks the beginning of an enduring majority. A primary aim of either party, when seeking sustained dominance, is to shift the court to their side. Had today's Court been left leaning, it would have almost certainly upheld a policy that denied a promotion based on the color of those promoted.
The Ricci case gets to the core of the American ideal of "the pursuit of happiness" as an "inalienable right." This right was most egregiously denied to blacks through slavery. It was not until the 1960s that the nation finally confronted and outlawed discriminatory practices. Affirmative action was instituted to correct past inequality.
Nearly a half-century later, liberalism faces new questions. In the time of the first black president, when white men's unemployment rate increases at twice the rate of black women in this recession, liberal thought has remained hinged to an earlier era.
Title VII of the 1964 Civil Rights Act prohibited discrimination based in disparate treatment or disparate impact. In 1960s and 1970s America the tension between the two principles was mitigated by the need to right history.
The liberal opinion, written by Justice Ruth Bader Ginsburg on behalf of all four left-leaning justices, argued Monday that the "purpose" of Title VII's disparate-impact provision "is to ensure that individuals are hired and promoted based on qualifications manifestly necessary" and "do not screen out members of any race."
The liberal justices refused to reckon with the instances when the desire for "manifestly necessary" skills create an unequal racial outcome, as was the case in New Haven.
The conservative majority affirmed this tension Monday. It decided New Haven's actions amounted to disparate treatment, what the rest of us call overt discrimination.
Tuesday, June 30, 2009
David Paul Kuhn, at RealClearPolitics: