I'm watching MSNBC right now and Pat Buchanan is debating Lawrence O'Donnel on the Sotomayor nomination. Buchanan's position, not surprisingly, is the fact that she must have been an "Affirmative Action Pick" because the top four persons up for consideration were all women.
At one point Nora O'Donnell challenges Pat...
Nora: What if there weren't any White Males as qualified as these women?
Pat: Of course there were. That would be an act of discrimination!
And Lawrences counters with
What if there were only White Males in the Top Four, would That have been the result only of discrimination? You're hopeless, it's like watching a dead fish flop around on the deck...
The entire view that if the winners of a contest aren't white/males - It has to be Racist Affirmative Action, but if it winners are nothing but white/males - It has to be Merit! - is at the heart of Buchannan's Supremacist Conceit.
The core of the New Haven case was the fact that the City threw out the results of a test to avoid a possible Disparate Impact lawsuit. Now the concept of disparate impact is the idea that some tests which may appear racially neutral may in fact be hiding or disguising some hidden bias and the only way to undercover it is to watch and determine if the results create a completely unfair and illogical result.
Rather than go forward, the City of New Haven went back and did the test again - that's all. It doesn't argue that those who didn't pass the test should be granted "extra points" or given a pass simply because they were black, all it required was a racial neutral Do Over.
At the heart of the dissent from the denial of rehearing en banc is the assertion that there was no Supreme Court or circuit law to guide this district court, or future district courts faced with similar claims. I disagree. The district court correctly observed that this case was unusual. Nonetheless, the district court also recognized that there was controlling authority in our decisions--among them, Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999) and Bushey v. N.Y. State Civil Serv. Comm'n, 733 F.2d 220 (2d Cir. 1984), cert. denied, 469 U.S. 1117, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985). These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.
This was previously discussed on Hardball with Pat, oddly enough he was more than a little bit on the side of the "winners" group that time - whereas he's now completely against the "winners" group. Guess what's different about the groups.
Buchannan whines about the Bakke case, well Bakke WON THAT CASE and as a result all quota systems in Affirmative Action have been banned as unconstitutional since 1978! The only way to implement any kind of "Quota System" is as the result of a Guilty Finding in a Discrimination Suit or a Concent Decree as punishment for Current - not past or historical events - CURRENT acts of discrimination.
In other words you have to give back the jobs and promotions that were illegally refused or taken. This would also apply in the case of the New Haven Firefighters if it was found that they were illegitimately denied their rightful promotions. Or vice versa if the opposite were the case.
So what's his problem now?
Sotomayor's finding, along with the other judges in that case, was that existing case law in the 2nd District was controlling and didn't allow them to reinstate the original results.
He clearly believes that a minority person couldn't have possibly been able to compete and win - without some special help, while simultaneously ignoring the "special help" that white males (or any majority/monopoly group) give each other simply by being members of the same social/cultural club on a regular basis largely because of their own common cultural socialization.
The problem is that insiders always have an advantage as part of the tyranny of the majority, outsiders have to go over and above to prove themselves - like Sotomayor who graduated Sum Cum Laude from Princeton, has more experience on the Federal Bench than anyone in Century, yet still has to deal with being called a "dumb latina affirmative action recipient". We would all like people to be evaluated on their individual merits, but we all know this insider/outsider dynamic can frequently come into play in unpredictable and unexpected ways.
Sotomayor may not be my type of progressive, in fact as a corporate lawyer and former prosecutor who has voted against choice I'm pretty sure she isn't - but this is just plain disgusting. All the fake "victimhood" of those in the majority and far more favorable positions has to be challenged.
Here's an old conversation with Pat and Rachel on the Geraldine Ferraro flap, which was very similar in the presumption that a Black Men gets special "priviledge" in this nation. Buchanan goes Ballistic!
So here's the question, why is it all the white guys lose - it's gotta be an unfair test, but if all the black guys lose, it's "Reverse Racism" to complain about it and even question the fairness of the test?
P.S. Lets also remember the great drama of Samuel Alito, CAP member and Closet Bigot...
CAP was a Princeton Conservative group whose entire purpose was to restrict and block access to the school by women and minorities -- if CAP had it's way Sonia Sotomayor would not have even become a student, let along graduated Suma Cum Laude.
So Gingrich says a "white racist nominee" shouldn't be confirmed - then why is Alito still on the Bench because if he wasn't a racist and sexist when he joined CAP, he was still a racist/sexist enabler by openly and proudly being a member of this group and bragging about it in his job application to the Reagan Justice Dept.
Considering the whining and crying the Graham did when Durbin and Kennedy just asked Alito to explain himself I'm sure we should expect such a high level of sensitivity, respect and deference when Sonia Sotomayor comes before the Senate, shouldn't we?
By the way Lindsey was eventually proven wrong on Geneva by the Hamdan decision as well as on Boumedienne, plus the Army Field Manual bans all types of physical coercion in interrogations, including sleep deprivation, stress positions and water-boarding.
P.P.S. The most activist judge on the Supreme Court, one who has "legislated from the bench", ignored the will of the people and overturned the laws of Congress the most often - is Clarence Thomas - who prior to being nominated for the SCOTUS only had One Year of experience on the Federal Bench. If Scalia wants to know why Black people aren't "Proud" to have Thomas replace Thurgood Marshall - this is why.