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.