At the end of the day...

The ruling is "a sign that individual achievement should not take a back seat to race or ethnicity," said Karen Torre, the firefighters' attorney. "I think the import of the decision is that cities cannot bow to politics and pressure and lobbying by special interest groups or act to achieve racial quotas."

At a press conference on the steps of city hall in New Haven, firefighter Frank Ricci said the ruling showed that "if you work hard, you can succeed in America."

Coming from Cook County, Illinois myself, you really can't underestimate the message this ruling sends to everyday Americans living under continually corrupt leadership. Keep hope alive, indeed.

Madoff loses.

So all in all, a pretty good day for American justice ...

Ricci wins.

I hope this ruling is welcomed by competitive peoples of all colors and stripes...

WASHINGTON (Reuters) - The U.S. city of New Haven, Connecticut violated the law by throwing out a promotion exam after it yielded too many qualified white applicants and no acceptable black candidates, the U.S. Supreme Court ruled on Monday in a major civil rights decision.

By a 5-4 vote and splitting along conservative and liberal lines, the justices overturned a ruling for the city by a U.S. appeals court panel that included Judge Sonia Sotomayor, who is President Barack Obama's Supreme Court nominee.

and

By MARK SHERMAN, Associated Press Writer

WASHINGTON – The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.
...
Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination.

Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

ADDED:
Succinct legal analysis from George Washington University law professor Ilya Shapiro.

AND:
The political spin begins...

"The issue from the Sotomayor perspective is, does this call into question anything about her judgement? And it doesn't," said one senior White House official. "The majority made it clear they are making a new rule. No one has really questioned that she did what she was supposed to do.’’

The court overturned an earlier order that Sotomayor had endorsed as an appellate court judge, that upheld New Haven’s decision to throw out a promotion test it had given the firefighters when no African Americans and two Hispanics qualified for advancement. The 134-word order has been the flash point of much of the legal debate over Sotomayor’s nomination.

Ouch! ..., or Jackpot! ...

Depending on whether you're on the paying, or the receiving end...

By TAMAR LEWIN
Published: June 22, 2009
In a decision that could cost school districts millions of dollars, the United States Supreme Court ruled on Monday that parents of special-education students may seek government reimbursement for private school tuition, even if they have never received special-education services in public school.

The case before the court involved a struggling Oregon high school student, identified in court documents only as T.A., whose parents removed him from public school in the Forest Grove district part way though his junior year, and enrolled him in a $5,200-a-month residential school.

Although Forest Grove officials had noticed T.A.’s difficulties and evaluated him for learning disabilities, he was found ineligible for special-education services. Only after he enrolled in the private school was T.A. diagnosed with attention deficit hyperactivity disorder and other disabilities.
...
The legal issue in the Forest Grove case was whether a 1997 amendment to the Individuals with Disabilities Education Act (or IDEA) prohibited private-school tuition reimbursement for students who never received special-education services in public school.

The amendment says tuition may be available for students with disabilities “who previously received special-education” services in public school, if the public school did not make a free and appropriate public education (or FAPE) available in a timely manner.

The Forest Grove school district, backed by school-boards associations across the country, argued that the amendment precluded reimbursement for those, like T.A., who never received special-education services in public school.

But the high court, in a 6-to-3 ruling, rejected that argument.

“We conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private school placement is appropriate, regardless of whether the child previously received special education or related services through the public school,” Justice John Paul Stevens wrote in the majority opinion.

Justice Stevens said the school district’s interpretation would produce a result “bordering on the irrational.”

“It would be strange for the act to provide a remedy, as all agree it does, where a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether,” Justice Stevens wrote. He was joined in his opinion by Chief Justice John Roberts and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Samuel Alito.

In his dissent, Justice David Souter, joined by Justices Antonin Scalia and Clarence Thomas, said that the federal disabilities law was designed to promote cooperation between school districts and families in developing an individualized education plan for each disabled student.

The dissent also discussed the high costs of private-school placements.

“Special education can be immensely expensive, amounting to tens of billions of dollars annually and as much as 20 percent of public schools’ general operating budgets,” Justice Souter wrote.

“Given the burden of private school placement, it makes good sense to require parents to try to devise a satisfactory alternative within the public schools.”

Sifting and winnowing, cutting and running.

Paper’s Report on Killing Was Seen Only Online
By TIM ARANGO

It was a two-part story of homicide and intrigue, wrapped in salaciousness and sexual innuendo, nearly 7,000 words long — the sort of long-form reporting that newspaper editors say still justifies print in the digital age.

But the article of the unsolved slaying in 2006 of Robert Wone, a young lawyer who was found stabbed to death in a luxurious townhouse in the Dupont Circle neighborhood of Washington where a “polyamorous family” of three men lived, was written for The Washington Post’s Web readers only, published on May 31 and June 1.

The decision to keep the article out of the print edition angered many readers who still pay for the newspaper. It also highlighted the thorny issues newspaper editors still face in serving both print and online audiences.
...
In one letter that The Post published after its article ran online, a reader wrote: “Newspapers are going broke in part because news can be read, free of charge, on the Internet. As a nearly lifelong reader of The Post, I could not read this article in the paper I pay for and subscribe to; instead I came on it accidentally while scrolling online for business reasons.”

The project, it seems, was not an experiment in Web-only journalism at one of the nation’s largest newspapers, but a result of the financial pressure afflicting the industry.

Editors at The Post have said they considered publishing the article in print, but they concluded it was too long at a time when the paper, like most others, was in dire financial straits and trying to scale back newsprint costs.
...
Meanwhile, how the story was covered in the nearly three years between the crime and Mr. Duggan’s series speaks to the condition of the news industry.

Craig Brownstein, an executive at the big public relations firm Edelman, and three friends who all lived near the crime scene became amateur reporters and started a blog last year called whomurderedrobertwone.com. Along with The Legal Times newspaper, the blog chronicled the case and the incremental legal news that was largely ignored by the mainstream news media.

Mr. Brownstein began the blog late last year, shortly after three people, who lived in the townhouse where Mr. Wone had been killed, were charged with obstruction of justice. No one has been charged in the killing.

“There was something about the proximity of this case to where we lived, and that it had languished for two years,” Mr. Brownstein said. “Seven months after we started digging, it’s still clear as mud.”

Mark 4:35:
And on that day, when the evening had come, he said to them, "Let us go over to the other side." And going away from the people, they took him with them, as he was, in the boat. And other boats were with him.

And a great storm of wind came up, and the waves came into the boat, so that the boat was now becoming full. And he himself was in the back of the boat, sleeping on the cushion: and they, awaking him, said, "Master, is it nothing to you that we are in danger of destruction?"

And he came out of his sleep, and gave strong orders to the wind, and said to the sea, "Peace, be at rest." And the wind went down, and there was a great calm. And he said to them:

"Why are you full of fear? Have you still no faith?"

And their fear was great, and they said one to another, "Who then is this, that even the wind and the sea do his orders?"

Promises kept, weren't meant 'literally'

In something of a pattern, it turns out the promises President Obama is making on Monday, are being "unpromised" by week's end. Well, you can't accuse this administration of not moving fast enough, on that track anyway.

Turns out that critics of the proposed 2009 Health Care overhaul are correct: plenty of people who currently are happy with their coverages WOULD see their options altered (when you factor in those durn market forces.)

Though they wouldn't be literally forced, turns out hard-working families might lose what they currently have, despite the President's earlier reassurances. So much for Pro-Choice healthcare decisions...

Here's Jim Lindgren, law professor at Northwestern University, writing on the Volokh blog:

Here is part of my post last Monday.

In President Obama’s speech to the AMA, he made firm promises that I don’t think he can keep if his plan were to be enacted:

So let me begin by saying this: I know that there are millions of Americans who are content with their health care coverage - they like their plan and they value their relationship with their doctor. And that means that no matter how we reform health care, we will keep this promise: If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what. . . .

If you don’t like your health coverage or don’t have any insurance, you will have a chance to take part in what we’re calling a Health Insurance Exchange.

If this goes through, many employers will do little different than they are today. But if the Obama plan is enacted, a substantial portion of employers will cut their health subsidies — raising their employees’ share of contributions to the company plan — in order to drive some of the employees into the government exchange and the public option. Other employers may drop their plans altogether — after all, workers could buy their own coverage in the government exchange — or simply fund part of their workers’ participation in the exchange.

These changes, which would be the direct results of the implementation of the Obama plan, would make it virtually impossible for Obama to keep these promises: “If you like your doctor, you will be able to keep your doctor. Period. If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what.”

Here is Mike Gonzalez at Heritage on Friday:

Less than 24 hours after Heritage Foundation President Ed Feulner questioned the veracity of President Obama’s persistent claim that, under his health care proposals, “if you like your insurance package you can keep it”, the White House has begun to walk the President’s claim back. Turns out he didn’t really mean it.

According to the Associated Press, “White House officials suggest the president’s rhetoric shouldn’t be taken literally: What Obama really means is that government isn’t about to barge in and force people to change insurance.” How’s that for change you can believe in?

Depending on how the public plan is designed in Congress, millions of Americans would lose their existing coverage. By opening the public plan to all employees and using Medicare rates, the Lewin Group, a nationally prominent econometrics firm, has said that the public plan could result in 119.1 million Americans being transitioned out of private coverage, including employer based coverage, into a public plan. With employers making the key decision, millions of Americans could lose their private coverage, regardless of their personal preferences in this matter.

In other words, if you believed something closer to the opposite of what Obama promised, that would be closer to the truth. When Obama said he “will keep this promise”:

If you like your doctor, you will be able to keep your doctor. Period.

he actually meant:

If you like your doctor, many of you will NOT be able to keep your doctor. Period.

And when Obama said he “will keep this promise”:

If you like your health care plan, you will be able to keep your health care plan. Period. No one will take it away. No matter what.

Obama really meant:

If you like your health care plan, many – perhaps most – of you will NOT be able to keep your health care plan. Period. Someone – perhaps your employer – may take it away. It all depends on how things work out

.

Solstice.

Make it a great Sunday, however you're celebrating!

No matter where you were at 1:45 AM EDT this morning, remember: it's not too late. Your solstice hasn't been ruined by being a day off, and perhaps sleeping in on Sunday.

Intrinsically, what gives you pleasure ... if nobody was taking pictures, and nobody was watching?

What would you be doing today, if you were listening primarily to yourself and not worrying about a list of accomplishments to cite on one's blog as proof of daily industriousness?

Breathe in, breathe out...

Knowing whether your life is healthy and fulfilling doesn't come from a doctor's tests, nor an audience clapping. (Does it?)

Come paddling ...

Well I had the garden watered in about two hours ago, scanned the headlines, read columns and blogs, and crawled back into bed with the sleepy head.

The best way for me to support freedom world wide this sunny Saturday, I decided, is to set a good example. So if you're caught up on the chores and your day too is bright, why not give thanks in mid-June for what you've got, and take the time to really enjoy it...

Which river will you run?

It's not what we have in material possessions, nor our status, that makes America great. It's what we have inside, the instincts and courage not to let anybody hold us back today. Ourselves included.

*Get up already.*

Reaping the world wind.

It's a play, of course, on the political cliche, "reaping the whirlwind", trotted out every time an administration overplays its hand, and stirs up passions that might take forever to put down. The timeline is never short though, which makes sense; you ever tried getting your arms around a whirlwind?

A world wind, by contrast, we've seen those before.

Since I'm partial to the year, let's say 1968, for example. And to localize for personal reasons, let's say Chicago. Political protests. Generational conflict. Violence.

I'm not one to make lofty comparisons, but I will deal in comparable stories. Bob Greene, then a young NU journalism student, tells how he kick-started his career in those days of rage and change: He showed up in the streets.

He reported on the energies of his fellow students and idealists, in protesting the conservative Democrats in power locally, and the tricky Republicans whose best days were still to come. The Sun Times editors were covering politics, as well. But Greene says they missed the coming storm that played out on Michigan Avenue and in Grant Park, by underestimating the crowds that would converge. They apparently were caught off guard, as were Daley's forces, by the spectacle.

Ditto the protests today in Tehran, though you don't have to be a strong Middle East reader to understand the demographics there too and the incremental change that has been happening under the radar for years. People yearning to breathe free. Exposed to other options, in these days of technology and travel.

The people are speaking.

Of course, as in Chicago, there are certainly other voices too. And change takes time. Much as we might think that "outsider" help can speed things along, usually change comes from within and it's not the nudging but the critical mass that usually tips the scale and makes change happen.

Are we there yet? Depends on how you define "we", really...

Today in the NYT, David Brooks speaks of that infamous whirlwind portending change. And he's right. It will come, in it's own due time. Despite the urgings of those who would bade a world wind to move faster, to bring peoples up to a minimum standard, say.

My only wish was instead of writing about Iran today, Brooks might have written this about the domestic push to reshape healthcare distribution:

At moments like these, policy makers and advisors in the United States government almost always retreat to passivity and caution. Part of this is pure prudence. When you don’t know what’s happening, it’s sensible to do as little as possible because anything you do might cause more harm than good.

First, do no harm. It's good advice, really: leave the body alone to let it formulate its' own defenses for fighting back.

A most excellent question.

Feminists, like all liberation movements, face the question:
Do we want to change society to make it more egalitarian? Or do we just want in on current arrangements? Judge Sotomayor, like others before and since, has apparently decided that her own presence among the elite is revolution enough. Well, okay, if that's what she wants. She's certainly entitled. Her rise from poverty via Princeton and Yale to the highest reaches of clubbability is a testament to her and to America.

On the other hand, this Belizean Grove thing sounds like an especially self-conscious and farcical attempt to create a unnecessary meritocratic hurdle. You don't have to be a radical leveler to think that allowing the Bohemian Grove to fade into inconsequence would be better for equality than setting up a female imitation. It would have been nice if Sotomayor, with all her accomplishments, had been secure enough to laugh at the invitation to join this parody of elitism. But not many people who have risen so far so fast are so secure. Republicans ought to find that reassuring.

Closer to the Heart.

And the men who hold high places
Must be the ones who start...
To mold a new reality
Closer to the heart.
Closer to the heart
The blacksmith and the artist
Reflect it in their art
They forge their creativity
Closer to the heart
Closer to the heart

Philosophers and ploughmen...
Each must know his part
To sow a new mentality
Closer to the heart.
Closer to the heart
You can be the captain
I will draw the chart
Sailing into destiny
Closer to the heart

~RUSH

"The least he could do."

Mail carriers and other civil servants:
One baby step closer to equality. Do you celebrate, or take "wait until next year..." for non-discriminatory basic family health insurance coverage -- for civil employees in 2009, already! -- for the lightweight leadership effort it is?

Law professor Dale Carpenter on President Obama's remarks today:

The least he could do: In a brief and perfunctory prepared statement, read carefully from a script, President Obama just signed an order directing federal departments to grant some benefits to employees' same-sex partners. It includes things like sick leave for partners, the use of medical facilities, access to long-term care benefits, and instruction in foreign languages, if such benefits are otherwise available to spouses.

Federal law blocks the Office of Personnel Management from granting same-sex couples the most important things — like health benefits. Broader relief will come only through the repeal of DOMA or, for federal employees specifically, through the proposed Domestic Partners Benefits and Obligations Act. Obama reiterated that he supports both goals. He also promised that he will work "tirelessly" in the "days and years to come" to achieve them. A few days ago, Obama's gay liaison said that action on anything significant is a long way off.
...
With his back-pedalling on DADT, no action on DOMA, nothing done to lift the HIV travel ban, nothing ventured to allow same-sex partners to immigrate, and employment protection and even a useless hate crimes bill stalled in an overwhelmingly Democratic Congress, lots of Obama's strong gay-rights supporters are becoming restive. Obama has been neither the moral nor the political leader they expected. It's still early and he's had a lot on his plate. But presidents always have more pressing matters to attend. And if history is any guide, he's now at the height of his political power. Today's action was, it seems, the least he could do.

FROM THE COMMENTS:

Cornellian:
This is a baby step positively Clintonian in its timidity and rushed out only when big name gay donors started bailing on a $1,000 a plate fundraiser. Count me unimpressed.

Constantin:
Obama has been neither the moral nor the political leader they expected.

I don't think this view is limited to gay Americans. I'm sure the AmeriCorps IG, much of Israel, Muslim women stuck in veils by threats of death, and about sixty million Iranians would agree.

Being president is a hard job. But when you say you're going to waltz in and make everything better almost solely because of your staggering intelligence and hypnotic charisma and majestic bearing, people expect a little more than the usual log rolling.

Brett, Brett, Brett...

You're no Vince Lombardi, hun.

The curious case of Japan's grass-eating boys:

Ryoma Igarashi likes going for long drives through the mountains, taking photographs of Buddhist temples and exploring old neighborhoods. He's just taken up gardening, growing radishes in a planter in his apartment. Until recently, Igarashi, a 27-year-old Japanese television presenter, would have been considered effeminate, even gay. Japanese men have long been expected to live like characters on Mad Men, chasing secretaries, drinking with the boys, and splurging on watches, golf, and new cars.

Today, Igarashi has a new identity (and plenty of company among young Japanese men) as one of the soushoku danshi—literally translated, "grass-eating boys." Named for their lack of interest in sex and their preference for quieter, less competitive lives, Japan's "herbivores" are provoking a national debate about how the country's economic stagnation since the early 1990s has altered men's behavior.

In this age of bromance and metrosexuals, why all the fuss? The short answer is that grass-eating men are alarming because they are the nexus between two of the biggest challenges facing Japanese society: the declining birth rate and anemic consumption. Herbivores represent an unspoken rebellion against many of the masculine, materialist values associated with Japan's 1980s bubble economy.
...
Japanese companies are worried that herbivorous boys aren't the status-conscious consumers their parents once were. They love to putter around the house. According to Media Shakers' research, they are more likely to want to spend time by themselves or with close friends, more likely to shop for things to decorate their homes, and more likely to buy little luxuries than big-ticket items. They prefer vacationing in Japan to venturing abroad.
...
Shigeru Sakai of Media Shakers suggests that grass-eating men don't pursue women because they are bad at expressing themselves. He attributes their poor communication skills to the fact that many grew up without siblings in households where both parents worked.

"Because they had TVs, stereos and game consoles in their bedrooms, it became more common for them to shut themselves in their rooms when they got home and communicate less with their families, which left them with poor communication skills," he wrote in an e-mail. (Japan has rarely needed its men to have sex as much as it does now. Low birth rates, combined with a lack of immigration, have caused the country's population to shrink every year since 2005.)
...
"When the economy was good, Japanese men had only one lifestyle choice: They joined a company after they graduated from college, got married, bought a car, and regularly replaced it with a new one," says Fukasawa. "Men today simply can't live that stereotypical 'happy' life."

Yoto Hosho, a 22-year-old college dropout who considers himself and most of his friends herbivores, believes the term describes a diverse group of men who have no desire to live up to traditional social expectations in their relationships with women, their jobs, or anything else. "We don't care at all what people think about how we live," he says.
...
Fukasawa contends that while some grass-eating men may be gay, many are not. Nor are they metrosexuals. Rather, their behavior reflects a rejection of both the traditional Japanese definition of masculinity and what she calls the West's "commercialization" of relationships, under which men needed to be macho and purchase products to win a woman's affection.

Some Western concepts, like going to dinner parties as a couple, never fit easily into Japanese culture, she says. Others never even made it into the language—the term "ladies first," for instance, is usually said in English in Japan. During Japan's bubble economy, "Japanese people had to live according to both Western standards and Japanese standards," says Fukasawa. "That trend has run its course."
...
While many Japanese women might disagree, Fukasawa sees grass-eating boys as a positive development for Japanese society. She notes that before World War II, herbivores were more common: Novelists such as Osamu Dazai and Soseki Natsume would have been considered grass-eating boys. But in the postwar economic boom, men became increasingly macho, increasingly hungry for products to mark their personal economic progress. Young Japanese men today are choosing to have less to prove.

----------
SOUNDTRACK:

Coldplay's Viva La Vida:

Just a puppet on a lonely string...

Oh, who'd ever want to be king?

I hear Jerusalem bells are ringing;
Roman Cavalry choirs are singing.
Be my mirror, my sword, my shield
My missionaries in a foreign field...

Brooks' healthcare rugby references...

Good Lord, where do they come up with this stuff anyway?

You are daunted by the challenges in front of you until you remember that by some great act of fortune, you happen to be Barack Obama. This calms you down. You conceive a strategy.
...
This brings you to the final stage, the scrum. This is the set of all-night meetings at the end of the Congressional summer session when all the different pieces actually get put together.

You want the scrum to be quick so that the bill is passed before some of the interests groups realize that they’ve been decapitated. You want the scrum to be frantic so you can tell your allies that their reservations might destroy the whole effort (this is how you are going to get the liberals to water down the public plan and the moderates to loosen their fiscal rectitude).

The scrum will be an ugly, all-out scramble for dough. You can probably get expanded coverage out of it. You can hammer the hospitals and get much of the $1.2 trillion to pay for the expansion. But you won’t be able to honestly address the toughest issues and still hold your coalition. You won’t get the kind of structural change that will bring down costs long-term.
..
Conservatives will claim you’re giving enormous power to an unelected bunch of wonks. They’ll say that health care is too complicated to be run by experts from Washington. But you’ll say that you are rising above politics. You’ll have your (partial) health care victory. Not bad for a skinny guy with big ears.

Again, awwwww. (I wonder if Brooks and Sullivan know each other from cornball camp?)

"Say, aren't you ...?"

Finally, is it me, or does Nina's occasional travelling companion Ed look remarkably similar to Iranian opposition leader Moussavi?

Must be the hair...

Awww ... unity.

In the blogosphere equivalent of the lambs lying down with the lions, Glenn Reynolds takes Andrew Sullivan's lead, and both change their banner color to Volokh Kelly green, in honor of the protesting Iranians.

Awww. And here I thought that purple-finger waving symbolism of a few years back was pretty corny, but I guess if symbolism can bring even competing, ideologically opposed bloggers together, then who knows?

Pass the paint to Palin and Letterman, and let's start one by one to reach out and make this world a better place ... for you and me ... and the children, can't forget the children !

(I do and do and do for you kids! ...)

------------------
ADDED: DRAMA! And, as if on cue, Andrew flowers it up and inserts himself into this major international story:

Instapundit Is Now Green
John Cole be damned!


Seriously, whatever our differences on how to tackle foreign policy, whether we're conservative or liberal, Democrat or Republican, neocon or post-neocon or noncon, witnessing this struggle for core democratic freedoms puts it all in perspective. There are no sides in this respect. Because this is America. And these people are risking their lives for freedom.

There are no sides... Because this is America ... (*gag*)

Brett Favre...

Playin' in Purple. Whadda you think?

The Vikings won their division without him, but have been unsettled at the sport’s most important position for the past three-plus years. Quarterback continues to be viewed as one of the team’s few weak spots on an otherwise talent-laden roster.

“It makes a lot of sense because the pieces are in place,” Favre said.

He said he met with a Vikings trainer Sunday to go over some arm exercises as part of his rehab, but the team has not made plans to evaluate his readiness to play. Favre said his conversations with Vikings officials have been infrequent and limited.

“Nothing other than, ‘Are you interested?”’ he said. “And vice versa.”

Not like he'll be hooking up with Randy Moss on the run or anything ... And isn't that the reason given for his early retirement a year or so ago? That he wanted the Packers to go after Randy, and when they didn't and he threatened to walk, he had to back it up after the team went ahead with rebuilding plans, not expecting him to change his mind again and again ... like a girl!

No really, with the Vikes and Packers playing on Monday night October 5 (Norm's birthday), it would be a whole lotta fun to watch, Randy Moss on the field or not.

Get well, Brett ... so the Pack can pound you into the pavement next season!

Law profs doing what they do best.

Ilya Somin, law professor at George Mason University, takes a look at another Sotomayor ruling -- this one a property rights case, Didden v. Village of Port Chester, "the worst federal court takings decision since Kelo."

Since Sotomayor has made no more than a handful of important constitutional rulings in her judicial career, the fact that she got three of them badly wrong must be given great weight in assessing her nomination.

The other two cases are the infamous Ricci, and Doninger v. Niehof.

Remember, it's not racist to read 'em and see for yourself what you think...

20 years ago, we watched events in Tiananmen ...

While the movement earned support for its agenda and sympathy abroad through wide international media coverage, the most potent challenge to the legitimacy and authority of the Communist Party since Mao Tse-tung's 1949 victory against the Nationalists was crushed at Tiananmen Square by military force on 3 and 4 June 1989, seven weeks after it had begun. Hundreds of protesters and bystanders were presumed dead, thousands wounded and imprisoned. From documents smuggled out of China and published in the United States, it appears that factional struggles among China's leaders and the fear of international shame delayed military action. President George H. W. Bush, acting upon public outrage, imposed minor diplomatic sanctions, but he subordinated human rights concerns to U.S. business interests, encouraging Bill Clinton to denounce him as "coddling dictators" during the 1992 presidential campaign. In turn, however, Clinton's policies followed the pattern of engaging the Chinese commercially, claiming that trade and openness would facilitate political reforms. This policy was embodied in the ongoing grant of most-favored-nation trade status to China, the jailing of human rights activists not withstanding.

This week, we watch the streets of Tehran. The hunger for freedom knows no boundaries. Let's hope for a happier ending here.

As dusk comes, people gather on the roofs of their apartment buildings and the haunting sound of “Allah-u-Akbar” — God is great — and “Death to the dictator” echoes across the megalopolis.

The Iranian yearning in these cries is immense, a measure of all that was not delivered by the 1979 revolution, when the same cries went up and liberation was promised

Class is back in session.

Thanks, Dave.

“All right, here – I’ve been thinking about this situation with Governor Palin and her family now for about a week – it was a week ago tonight, and maybe you know about it, maybe you don’t know about it. But there was a joke that I told, and I thought I was telling it about the older daughter being at Yankee Stadium. And it was kind of a coarse joke. There’s no getting around it, but I never thought it was anybody other than the older daughter, and before the show, I checked to make sure in fact that she is of legal age, 18. Yeah. But the joke really, in and of itself, can’t be defended. The next day, people are outraged. They’re angry at me because they said, ‘How could you make a lousy joke like that about the 14-year-old girl who was at the ball game?’ And I had, honestly, no idea that the 14-year-old girl, I had no idea that anybody was at the ball game except the governor and I was told at the time she was there with Rudy Giuliani … and I really should have made the joke about Rudy …” (audience applauds) “But I didn’t, and now people are getting angry and they’re saying, ‘Well, how can you say something like that about a 14-year-old girl, and does that make you feel good to make those horrible jokes about a kid who’s completely innocent, minding her own business,’ and, turns out, she was at the ball game. I had no idea she was there. So she’s now at the ball game, and people think that I made the joke about her. And, but still, I’m wondering, ‘Well, what can I do to help people understand that I would never make a joke like this?’ I’ve never made jokes like this as long as we’ve been on the air, 30 long years, and you can’t really be doing jokes like that. And I understand, of course, why people are upset. I would be upset myself.

“And then I was watching the Jim Lehrer ‘Newshour’ – this commentator, the columnist Mark Shields, was talking about how I had made this indefensible joke about the 14-year-old girl, and I thought, ‘Oh, boy, now I’m beginning to understand what the problem is here. It’s the perception rather than the intent.’ It doesn’t make any difference what my intent was, it’s the perception. And, as they say about jokes, if you have to explain the joke, it’s not a very good joke. And I’m certainly – ” (audience applause) “– thank you. Well, my responsibility – I take full blame for that. I told a bad joke. I told a joke that was beyond flawed, and my intent is completely meaningless compared to the perception. And since it was a joke I told, I feel that I need to do the right thing here and apologize for having told that joke. It’s not your fault that it was misunderstood, it’s my fault. That it was misunderstood.” (audience applauds) “Thank you. So I would like to apologize, especially to the two daughters involved, Bristol and Willow, and also to the governor and her family and everybody else who was outraged by the joke. I’m sorry about it and I’ll try to do better in the future. Thank you very much.” (audience applause).

UNRELATED:

My favorite line of his, over the years?

"I do, and do, and do for you kids and this is the thanks I get"

You're loved, like I said earlier. That one is for everybody, you know.

"If you would have a mind at peace,
a heart that cannot harden...

go find a door that opens wide
upon a lovely garden."

Too many victims spoil the stew.

Or, David Bernstein ... for the win!

I'm lifting his entire post this morning from Volokh. If ever we needed an honest discussion, too long postponed because of taboo topics, we should think on these things.

[David Bernstein, June 15, 2009 at 10:57am] Trackbacks
Peretz on the Cairo Speech: Marty Peretz has won a lot of ridicule of late, primarily for a series of ill-thought out blog posts. But his recent article on Obama's Cairo speech is superb. (H/T: Instapundit)

One aspect of the speech that hasn't received sufficient attention is the focus on victimology: Israelis were victims of the Holocaust, Palestinians victims of dislocation after the founding of Israel, Americans the victim of the 9/11 terrorists, Arabs the victims of Western imperialism, and so forth.

That this appeals to Obama is not surprising. He and I attended law school at the same time, Obama at Harvard and me at Yale. Victimology was all the rage. It gave one not only moral standing, but, oddly enough (like Sotomayor's "wise Latina") a certain level of intellectual standing.

During our first year in law school, there was a one-day nationwide "student strike for diversity" at elite law schools, including Harvard and Yale. (I don't know for sure whether Obama was involved in this "strike," but he gave a speech on behalf of uber-diversity advocate, and Harvard lawprof, Derrick Bell.) At Yale, students gave speeches throughout the day. What struck me at the time was how eager, almost desperate, the various student speech-givers were to be perceived as victims.

This included not just "people of color," but gays, Jews, Moromons, Catholics, and so on. Not a member of a racial, ethnic, religious, or sexual minority? Perhaps you were victimized by being a "First Generation Professional," such that you didn't know what suit to wear for law firm interviews, or which fork to grasp at lunch with your interviewers. (I wasn't quite a first-generation professional, yet I also didn't know these things, but I hardly wallowed in self-pity about it.) Or perhaps you had a learning disability. Or were from a less-than-ideal home. Or were less wealthy than your classmates. Or had to go to law school while raising a family.

The implicit message was that we all--even white male Protestants attending the best law school in the country, ready to walk into six figure jobs upon graduation--could be united in victimhood, and without such victimhood, our value as individuals is somehow diminished. And this theme cropped up repeatedly in law school.

I've always wondered how the Ivy elite went so quickly from a bastion of self-confident, privileged WASP elitism to the opposite extreme of celebrating victimhood. Regardless, it's a unique way to run a foreign policy.

If you haven't tasted true freedom, licking at the crumbs of victimhood might seem satisfying. But when you feel the wind in your face -- unshackled from restrictions that previously held you back -- you realize that whatever you can do to keep yourself from being victimized again and preserve your freedoms is ultimately worth it.

That's the true American dream right, nevermind the house and family in the suburbs. The more personal freedoms, the more diversity of choice, the less likely people are to fall prey to what happened to the best and brightest in Obama's generation: the rise of "community organizers" as a professional class. And the government acting as a parent.

ADDED:

"Mr. Gorbachev, like you we fought a war against the Nazis and suffered because of it, and like you we freed our serfs/slaves in the 1860s, who had suffered grievous oppression for generations. Now that we understand what we have in common, can we be friends now?"

Lol.

Heh.

CREATIVE PROTEST Going On Out There These Days. *

(Thanks for sharing: Glenn Reynolds, law professor at the University of Tennessee, and prolific blogger.)

------------------
*

Inquiring minds want to know: will there be a long-term committment to the protesting until change comes, or will people lose interest and turn short attention spans to the next fresh face offering dreamy promises? Let's hope the former, not the latter: those signs are good!

ADDED:
AND IN NYC, JASON AND HAKIM "Kimah" add a little creative protesting of their own.

Except for the minor matter of the fraud involved, this too would work! (see pictures at link).

Aquafest.

Post 1,113.

But I deleted a lot when I was starting. Not because I changed my mind or out of regret, but like newspaper around the house, some things eventually need to get tossed. Nice that we can still read now, but not alienate loved ones with piles of paper.

Have a delicious Saturday, everyone. Hope the sun is shining where you're at, and you're looking forward to a wonderful summer...

You are loved.

Bing, bang, boom...

As if on cue, three more NYT columnists professional opiners weigh in on our latest national tragedy. (Some trends are more predictable than others.)

Charles Blow:

Slowly, but steadily, these bigots are slithering from beneath their rocks, armed and deadly.

Bob Herbert in the collectively titled "The Way We Are":

The truth, of course, is that there is nothing aberrational about hatred and murderous violence in the U.S. They are two of the most prominent touchstones of the culture, monumentally tragic flaws that have permeated the nation’s history from its earliest moments and that plague us still today.

Americans kill each other at roughly the rate of 16,000 a year! From racial violence to family violence to gang warfare to street crime to mass murder — the blood never stops flowing.

The white supremacist crowd is up in arms, literally, in large part because the tide has turned against them. In addition to the presence of Mr. Obama in the White House, racism and anti-Semitism are no longer tolerated as overt factors in American life. And demographic trends show whites becoming a steadily smaller percentage of the overall population.

But we should not pretend that things are better than they are. Racism is still a powerful force in the U.S., so powerful that the president, an African-American, is barely willing to mention race unless he absolutely has to.

Judith Warner:

And though he’s an outlier — disturbed, deranged, disavowed now by many who share his core views — his actions really can’t be viewed in isolation. As was the case with Tiller’s murder, which followed months of escalating harassment and intimidation at abortion clinics, von Brunn’s attack on the Holocaust museum has to be viewed as an extreme manifestation of a moment when racist, anti-Semitic agitation is rapidly percolating. White supremacist groups are vastly expanding. And right-wing TV rhetoric, thoughtless in its cruelty and ratings-hungry demagoguery, is helping feed the paranoia and rage that for some Americans now bubbles just beneath the surface.

I must live in the non blood bath part of the country, where individuals of all backgrounds come together to shop garage sales, organize summer activities for the kids, and worship together (Catholic churches are a bit more integrated than many religious services, I hear).

I wonder if the NYT columnists regularly mix with others and have picked up these divisionary vibes there? Perhaps more likely though, they are merely responding to what others have written, and thus their conclusions about "The Way We Are" as personified by most Americans today, is a bit ... off.

I'm betting so. Or maybe I just travel in good circles. Because I don't see a nation of haters out here, and a few bad eggs need not spoil the batch. Collective guilt, or blame, can have it's place surely, but not here in America. Not now. Not based on the recent acts of individuals acting alone...

Both Mr. Herbert and Mr. Blow today quote Dr. King. I hope it's not presumptuous of an American woman with fair skin to quote his line that I believe is most in need of being repeated these days:

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.

Lest we forget.

The Real World.

Dale Carpenter, law professor at the University of Minnesota, stops being polite and starts making sense:

More bluntly put, the Obama DOJ is saying that DOMA doesn't discriminate against gays and lesbians because they are free to marry people of the opposite sex. No "homosexual" is denied marriage so homosexuals qua homosexuals suffer no hardship.

Gay man? Marry a woman, says the DOJ. Lesbian? There's a nice boy across the street. It's identical in form to the defense of Texas's Homosexual Conduct law in Lawrence v. Texas: a law banning only gay sex doesn't discriminate against gays because it equally forbids homosexuals and heterosexuals to have homosexual sex and because it equally allows homosexuals and heterosexuals to have heterosexual sex.

This sort of formalism has incited howls of laughter over the years when made by religious conservatives. Now it's the official constitutional position of the Obama administration.

My point here is not to claim that the DOJ's arguments are anti-gay, homophobic, or even wrong. Much of the brief seems right to me, or at least entirely defensible. My point is only to point out how much continuity there is in this instance, as in others, between the Bush and Obama administrations. In short, there's little in this brief that could not have been endorsed by the Bush DOJ. A couple of rhetorical flourishes here and there. Perhaps a turn of phrase. But, minus a couple of references to procreation and slippery slopes, the substance is there.

Obama says he opposes DOMA as a policy matter and wants to repeal it. Nothing in the DOJ brief prevents him from acting on that belief. He is, he says, a "fierce advocate" for gay and lesbian Americans. When does that part start?

You know, once we come of age and realize that it really is within our powers to change ourselves, but others? Not so much... It got me to thinking: much as we'd like, America really is powerless to enforce the human rights policies of counties like Iran, say. I mean, we could protest, educate, influence and encourage change in terms of financial incentives, boycotts, etc. But for the most part, we are powerless to "force" another county to evolve their culture more quickly...

Not so true here in the U.S. though. Here, again, we have the power to cajole, influence, lead, educate, protest, etc. And here, odds are more fellow Americans will be influenced by such techniques than Iranians would hearing the views of Westerner's halfway across the world.

Pres. Obama's people promise that a fresh face, a new voice, a softer set of diplomatic skills can work wonders in the world. So where the heck is he on this one?

Stuck back in the relative Stone Ages, it appears, unwilling to risk minor political capital that it would take for him to stand on principle on these issues. Bully pulpit leadership -- even if in reality, it doesn't force a vote or change legislation -- can influence American minds. A progressive black man, not just voicing words of equality but showing that he supports equality for all in his policy actions -- could change young black minds, I would think. Older black minds too.

Bully pulpit leadership that helps change laws and policies in America, in my humble opinion, would do more to "lead" counties like Iran forward -- "do as I say, and as I do" -- than all the moral lectures in the world -- "change thyself!" delivered by a Western "enemy".

Heck, I'll come out of the identity politicking box for a minute and go so far as saying that if President Obama would only exhibit a bit of political courage on these issues -- he might prove to be a true world leader, and influence all those minds that haven't already been slammed shut and locked tight on this issue. Personally, I suspect there's a lot of folks still in that grey area, who would be influenced by a new administation's approach.

Sadly though, I think we're learning that what got him in -- likeability, is the same exact thing that will keep the Obama administration toeing the Bush administration line on so many current policies: the fear of being disliked.

You know, they say for every door God shuts, He opens a window. (My mom told me that.) Some things that maybe don't seem like a blessing at the time can actually strengthen a person in many ways. (think a blind person with an extraordinary sense of sound, or smell). Let me just conclude then, by counting all my blessings that have allowed me to act in my life without fear of what other people will think.*

They say he's a quick learner; I wonder if it's too late for the new president to learn an old skill, or character trait: courage in the face of opposition, especially if you honestly believe in the principles you are promoting.

I mean, if he can't stand up for professed principles on evolving domestic issues like this one, then I suspect President Obama'll back down quicker than a frightened rabbit on other positions as well, if the risk of losing popularity overrides previously promised policy goals.

-----------------------
* This title, and The Pugilist at Rest, are two favorites in my collection, for the titles alone.

Tone deaf.

It must be difficult, being an identifiable NYTimes writer, to really grasp the flavor of the times. Your salary, and notoriety, and the media circles you move in, surely insulate you from a lot.

Paul Krugman's column today, I definitely agree with the conclusion:

" Yes, the worst terrorist attack in our history was perpetrated by a foreign conspiracy. But the second worst, the Oklahoma City bombing, was perpetrated by an all-American lunatic. Politicians and media organizations wind up such people at their, and our, peril. "

Isn't he really saying:
Beware in the coming days, media types starved for original content, drawing a link between Dr. Tiller's killing and the cold-blooded shooting of a Washington D.C. security guard. They'll try to convince you of their vast right-wing conspiracy theory.

That we should worry about some uprising of violence, in a 21st century pluralistic country that recently elected the son of a white Kansan and a Kenyan man who met as students and created their own new, personal reality in their son Barack. It's a beautiful story, not the least diminished by voters who liked him enough, but thought it was not wise to put an untested first-term US senator with so little experience and questionable political background in the highest executive office. During wartime, and roosting of economic results from feel-good legislative bipartisan politics of eras gone by.

Mr. Krugman is absolutely right in that closing paragraph, that without innovation, the media too -- like so many long-term workers in dying/transitioning industries -- can be expected to cling to their past ideas and ways of doing business, before learning to adjust to new, fresher challenges in the marketplace. Beware!


Thus, we'll see hype (because it's such an easy fear to create, really) -- that the actions of one (captured) 80-something-year-old man threaten us all. Or even a demographic subset of the population. (I'm going to go out on a limb and predict underlying mental issues, possibly dementia in addition to the noted physical deterioration that was crippling his mind)

That the actions of one (also captured) alleged lunatic in killing a doctor who apparently had been receiving threats for years somehow currently represents the hidden hopes of the pro-life movement, ie/church-going, conservative Catholics. Because somehow, fear of a black president translates to Johnny getting his gun, and up and killing these cultural targets.

Nevermind that such random killings go back to the days of young Nicholas Corwin and the mentally unbalanced Laurie Dann. Remember reading of them? I do. The schoolboy's death then was just as painful as the recent killings, and probably, just as unthinkable, just the same call for justice, just the same quiet weakening cries of "why?" that somehow are never satisfactorily answered... Tragedies happen.

Now, I'm no NY Times columnist. But I do know they've probably got 3, maybe 4, people analyzing this current "trend". And they'll probably have some experts to quote telling us it's all in the sociology of the times, the economy, the wars, the generational shifts, etc. all combining to created the "perfect storm" of societal division and violence.

Nonsense. With equal representation of competing voices (and I don't mean set asides, just honest acknowledgement that there's way more to American folks than the NYTimes can cover), Americans can weather these tough times. We can disagree, even on some mighty weighty issues, without resorting to conspiracy theories or linking the violence of unrelated individual acts.

As the economic security nets fall because of lack of popular financial support in coming years, I'm sure we'll have heated debate about citizens' responsibilities for the care of one another. Or maybe some will object too, even if we decide it is necessary to cover only the most vulnerable amongst us...

If Israel attacks Iran to destroy potential nuclear weapons, surely we will have honest disagreement about America's role, or non-role, in financially backing that action. As the years pass, and our troop committments in Afghanistan and Iraq stagnate and possibly grow, surely we will need to talk openly about foreign aid committments abroad -- and perhaps the need to triage our financial support, again to the most vulnerable -- and hopefully, earning us the most efficient payoff for our contributions. (When the bucks are tight, you learn to go for the most payoff in the bang for your buck. I think the last administration missed that, and this one is content to just ... carry on, in the spending department.)

To summarize, it's summertime. I like to peruse the topics of the day, spending a bit more time if there's something of substance. Then ... it's out the door and onward with the day.

Still, we all can have our lazy summertime moments, free association, what if? thoughts ... to check our own internal fears at the random happenings of the day. But let's not get carried away, and impute our own musings to any trends, conspiracies, or even detectable patterns.*

I mean, it's not like we're in WWII and we've elected Chas. Lindbergh president or anything.** :-)



-------------------------


* The current murder rate in Chicago: now that's a proven pattern, sadly, often striking the most vulnerable. But few media calls to track or fear that.

** I kid, because I like.

Oh, poor Dave.

So rich, yet so ... classless.

Listen, if you think repeating the sexx jokes is cool b/c the target is 18, not 14 years old...


Maybe let it rest, find bigger humor targets* and leave the Palin girls alone now Dave? ...

-------------------

* Really, lots of grown-up material out there these days, from the govt. car jokes alone: I mean, picture that, can you? Can you imagine the Prez and Michelle exiting one of those things, and watching the new cabinet adopting their leader's optimism and sporting one of those new GM products themselves? Heck, what do you suppose the grown-up women car models at the auto shows will look like draped over those little things? (see sexual humor is cool, just leave the Palin girls -- anyone's girls those ages -- alone. Maybe Levi is young and dumb and just as "guilty" as she ... but to jump from young Levi to been-round-the-bases A-Rod, or worse: the hooker solicitor Eliot Spitzer, see that's the classless part, no matter how much you repeat in mixed company. Too much a leap from first-time love Levi, to pay-to-play New York level sexual culture. Just doesn't translate to funny in all parts, too cheap a target at either age. Hth.

Memo to Dave.

Dave Letterman: we like you well enough. You're a Hoosier, you've got Harry, and you seem to have mellowed a little in recent years.

But listen? Lay off Sarah Palin's kids, eh? Not Bristol, the allegedly "fallen" woman who's tending to her mothering duties, but innocent Willow who accompanied her mom to a Yankees game, and then had you tell a crude sexual joke about it.

Just lay off the Palin kids, ok? I know they're white Republicans, and anything goes these days against some demographics in these days of diversity, but she's a 14-year-old innocent who went to a ballgame with her mom. Leave her alone, or else take care of what you're opening up ... someday it might be a Harry Letterman, or a Malia or Sasha Obama -- currently on the protected lists -- that the old man comics are hating on.

And surely you'd want good people standing up and defending the right of those innocents to be left alone too, right? "Do Unto Others..." It really is a good rule, even if you've got enough gold to make your own.

Thanks a bunch, Dave. And speaking of stupid human tricks, didn't I see these drunken frat boys in the Borat video?

David Bernstein at Volokh explains why it's probably not wise to judge a group as a whole (here, young Americans) by the drunken blitherings of members of that group caught on video. Sadly though, I've seen drunken attitudes like the ones on display here proudly displayed here in America at our own higher learning institutions. It's good that Bernstein and others see these views as outliers though, and not indicative of American urban and suburban youth, grasping to find their roots outside of their generic "whiteness" here at home. Sadly, identity politics often go astray -- especially in the young dumb drunken youth, particularly when one thinks they are avenging the treatment of ancestors.

Intelligent conversation continues.

More relevant detail on the Ricci case, from December 2007 oral argument before the Appeals Court panel.

Interrresting, as the kids say.
-----------------------
Thanks for sharing: Jim Lindgren, on the Volokh blog, himself excerpting Stuart Taylor.

Do Re Mi ...

Gone fishing ...

Back again. Just as we tend to blog more in the winter here, I think it's time for summer bloggers inside now in hotter places to start carrying us with their words. Just a thought; I'll pick up in say, November.

Substance wise, Charles Krauthammer had a good column summarizing strategy in the Sotomayor nomination (though why give a pass, admitting now that of course you'd confirm? Kinda seems to give up the intellectual fight to me, but I suspect Mr. Krauthammer has bigger dogs to fry.)

And Adam Liptak starts the slow process of media dissection of Ricci, putting it at a level where millions of NYT readers begin to understand the implications of Sotomayor's work here.

It's refreshing finally -- after so many words have been spilled in the cheap opening acts over the "racist" / "not a racist" / "you're a racist!" faux controversy that appears to have gobbled short attention spans thus far.

Look at the records, people, and steer clear of the action on the sidelines.The real game, as always, is on the field:

Almost everything about the case of Ricci v. DeStefano — from the number and length of the briefs to the size of the appellate record to the exceptionally long oral argument — suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion.

But in the end the decision from Judge Sotomayor and two other judges was an unsigned summary order that contained a single paragraph of reasoning that simply affirmed a lower court’s decision dismissing the race discrimination claim brought by Frank Ricci and 17 other white firefighters, one of them Hispanic, who had done well on the test.

The Ricci case, bristling with important issues, has emerged as the most controversial and puzzling of the thousands of rulings in which Judge Sotomayor participated, and it is likely to attract more questions at her Supreme Court confirmations hearings than any other.

The appeals court’s cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court, which heard arguments in April and is likely to issue a decision this month.

The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.
...
“The entire discussion before the board was, ‘Was there an adverse impact on the minority candidates by this testing procedure?’ ” Judge Sotomayor said.

That sort of race consciousness, she said, may be perfectly lawful. “You can’t have a racially neutral policy that adversely affects minorities,” Judge Sotomayor said, “unless there is a business necessity.”

Hmm.

“You have to look at the test and determine whether the test was in fact fair or not,” Judge Sotomayor told a lawyer for the defendants, Richard A. Roberts. “If you’re going to say it’s unfair, point to specifics, of ways it wasn’t, and make sure that there really are alternatives.”

But the summary order Judge Sotomayor joined drew none of those distinctions.

Catherine O’Hagan Wolfe, the clerk of the court, said in an e-mail message that such an order “ordinarily issues when the determination of the case revolves around well-settled principles of law.”

The Ricci case does not meet that standard, Judge Jose A. Cabranes wrote for himself and five other judges in a dissent from the full court’s decision not to rehear the case. The questions posed in the Ricci case, Judge Cabranes wrote, were exceptionally important “constitutional and statutory claims of first impression” — meaning ones where no binding precedent exists.

So where the judge could have written a defensible opinion citing precedent or employing legal reasoning to explain the decision and guide lower courts, instead ... she kept the bat on her shoulder and never swung at all, hoping no doubt, that would be enough to get her on base ...


In related news, Charles Blow wraps up the racist controversy, citing polls that show the public is sick of the sideshow already. (Surely he's not suggesting that the public assumes that bit of identity posturing is all the info they need regarding the hearings and confirmation process, though? Why, that would be a bit like putting the children to bed with no supper, nothing at all nourishing in their bellies to get them through the night. We've seen in enough recent events, that course of "coverage" just leaves them wanting when they wake up in the morning...)

And Bob Herbert in the same edition writes an inspiring tale of a young woman, first in the family to attend college. I have no doubt she and her classmates were helped by the attention paid to her schooling, and the physical necessities to back up such a committment. Success is surely theirs, in sending all 48 grads off to colleges and universities.

I only wonder: why not include the school's average standardized test scores, so Americans across the country can get an idea of where these students are at competitively, and indeed, where they are going as a program?

Just as in Ricci, a neutral test -- designed and pre-examined to eliminate any objectional bias or racial discrepancies -- can be an accurate measure of treating candidates equally. Now I'll be the first to tell you that test scores alone aren't everything perhaps, but we generally build into the evaluation system other ways of measuring contributions, so the need to denigrate any neutral test taking methods to acheive a desired result doesn't sit well with me.

Why skip an honest examination of the work record, a close look at the results achieved under the pressure of a testing situation, because we're so busy celebrating the subjective victories achieved? The first this - or that - is wonderful, but there has to be something more accompanying that once you're in the game, as I'm sure those young graduates Mr. Herbert writes about will learn in the trying four years of college. (You're in, students. Now the game really begins, as any first-generation college student can attest -- race and ethnicity aside.)

Swing for the stands, or even play it wise, if you're fast enough, and bunt your way on base... But for heaven's sake, don't stand there with the bat on your shoulder hoping that if you play the numbers right, the other side will screw it up enough that you won't have to make an effort.

Like explaining to Mr. Ricci and his firefighting brothers why exactly it was ok to discriminate against them based on racial reasons, when at the end of the day, some people didn't like the final score on the fair test that was open to all. Tough luck. Try again next year. Come back bigger and better, and take another shot at it. That's the American way, not throwing out the game results without good reason.

6 !

"Today, we are standing up for the liberties of same-sex couples by making clear that they will receive the same rights, responsibilities — and respect — under New Hampshire law," said Gov. John Lynch, who personally opposes gay marriage.

Lynch, a Democrat, had promised a veto if the law didn't clearly spell out that churches and religious groups would not be forced to officiate at gay marriages or provide other services. Legislators made the changes.