Beacon Street Journal

A new Rasmussen poll finds that public support for Sonia Sotomayor, Obama’s nominee to the Supreme Court, has fallen substantially in the wake of the recent Ricci decision. 37% believe that Sotomayor should be confirmed, while 39% disagree. While these findings are not an impediment to her eventual nomination, it is interesting that the resistance to her confirmation has risen dramatically since her decision in the Ricci case was overturned by the Supreme Court:

Two weeks ago, the numbers were much brighter for the nominee. At that time, 42% favored confirmation, and 34% were opposed.

Republicans cannot thwart Sotomayor’s nomination to the Supreme Court, but they can use the confirmation hearings to illustrate deftly the anomalous proposition that the purported “post-racial” president’s nominee to the highest court in the land, favors hiring/promotion decisions based exclusively on race.

The factual circumstances of the Ricci case received a fair amount of publicity and it seems that Sotomayor’s position on race-based preferences or quotas is at odds with that of a majority of Americans. Prior to the Supreme Court ruling which overturned Sotomayor’s summary disposition of the white firefighters  case against the city of New Haven, most Americans strongly opposed her 2d Circuit Court ruling: 71% favored promoting the white firefighters, plus one Hispanic, who scored well on the test, and only 19% sided with the city — and Sotomayor — in abandoning the test and awarding no promotions.

As I noted in an earlier post, a recent Rasmussen poll finds Massachusetts Governor Deval Patrick trailing Republican gubenatorial hopeful Christy Mihos, 41%-40. Not very promising numbers for a sitting Governor who rode into office on a wave of exuberance.

Deval Patrick, the original political pied piper of “Hope and Change”, was swept into office amidst the promise of “lasting and meaningful change”(always pristinely undefined), along with local media adoration. Now, all of the flowery, vapid rhetoric of “Hope and Change” which was sufficient to propel Deval Patrick to the Governor’s office has clashed with the reality of his fiscal mismanagement, political tone-deafness and broken campaign promises.

Though “progressives” in the Commonwealth could pat themselves on the back for electing the state’s first African-American Governor, there was no changing the fact that in terms of substance, exectutive competence and political judgment, Deval Patrick was an empty suit.

Does this description remind you of another prominent politician?

In terms of reelection prospects, the news gets even worse for Patrick. State Treasurer, Timothy Cahill, a fellow Democrat also fares well in a match-up against the Governor:

“There have been two polls this year, and both show the governor being defeated by two different candidates,” said Cahill, who beat Patrick in a Channel 7/Suffolk University poll released in March. That matchup showed the treasurer had 35 percent of the vote, and Patrick had only 30 percent.

The moral of the story? Since it is based on nothing but meaningless hype, which soon clashes with reality, the allure of “Hope and Change” has a very short political shelf-life…

In light of President Obama’s own words about the high energy costs associated with his cap and trade bill, let’s perform a rudimentary cost-benefit analysis of the proposed legislation.

Let’s suspend our disbelief and all the recent accumulated scientific evidence that exposes the fraudulent theory of climate change and assume, for the moment, that global warming is indeed caused by man-made activity. What practical effect will the draconian energy rationing envisaged by the massive cap and trade bill have on reducing CO2 levels worldwide?

The answer, is absolutely nothing. Firstly, since two of the world’s biggest polluters, China and India, are beyond the reach of the proposed cap and trade legislation, these countries will continue to spew massive amounts of carbon emissions into the atmosphere. India has expressed no desire to hamstring its economy with Kyoto protocol cap and trade restrictions.

Secondly, even if all the target CO2 emissions reduction levels anticipated by the legislation were met, the net effect of these lower levels would be negligible on lowering worldwide temperatures. As Peter Ferara of the American Spectator notes:

But even if the bill works exactly as envisioned, the most radical environmentalists admit that it will only slow temperature increases by 2050 by a ridiculous 9/100th of one degree Fahrenheit! Even after all the costs of reducing the use of fossil fuels by 83%, that is all that would result.

But not to worry, President Barack Obama and his global warming sidekick, eco-messiah Al Gore, have decreed the “science is settled.” So who are  you going to believe? Two politicians, or actual atmospheric observations that have contradicted the temperature predictions of computer model simulations of the IPCC?

The Charles River Associates, a Harvard based economics consulting firm, estimates a net loss of jobs from the bill of about 2.5 million each year. But this should be no cause for concern since Nancy Pelosi has assured us that this bill is about, “jobs, jobs, jobs and jobs”, ostensibly to be created from alternative energy sources, for which at present, there is no commercially feasibly technology sufficient with which to propel our automobiles and other transportation vehicles from wind or solar power.

What possible justification could there be for enacting into law punitive measures aimed at the American consumer’s use of carbon based energy sources that in the end, will have no impact on global warming?

Ask your Congressman who voted for this mindless, economically deleterious legislation.

Sphere: Related Content

After reading the actual Supreme Court decision in Ricci, the statement I made in my post yesterday to the effect that, the Court, “drove a stake in the heart of “disparate impact” discrimination law theory…” was far too sweeping an assertion to make in light of the narrow basis for the court’s ruling. In its holding in Ricci, the Supreme Court did not explicitly rule on the constitutionality of disparate impact theory itself, namely the legality under the Equal Protection Clause of the 14th Amendment of race-conscious remedies for situations where no discriminatory intent is present but nonetheless where the results of employer hiring/and or promotion policies, from a statistical standpoint, disproportionately impact minorities. While the court did not specifically rule on the constitutionality of disparate impact remedies, as Justice Scalia noted in the Ricci decision, the issue cannot be sidestepped forever.

The court, quite properly, limited itself to the specific and narrow issue before it: whether the fear of potential disparate impact lawsuits brought on behalf of minority firefighters who failed to achieve passing test scores was a sufficient basis for the city of New Haven to throw out the results of an otherwise racially-neutral and properly administered promotions exam. The court rejected this as a basis for the city’s intentional discrimination against the white firefighters.

As Justice Anthony Kennedy explained, the city’s “good faith belief” that it would be subject to disparate impact litigation:

could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to adopt inappropriate prophylactic measures.

In establishing a standard for employers, Justice Kennedy wrote that the results of racially-neutral promotion tests can be rejected only if there is a  “strong basis in evidence” to believe the employer will be liable under disparate-impact discrimination legal principles.

Even though the constitutionality of race-based remedies based on disparate impact was not addressed, what is the practical result of the court’s ruling on employers? It should be noted that all members of the Supreme Court rejected Judge Sotomayor’s legal reasoning to the effect that disparate racial results alone justified New Haven’s decision to ignore the scores on the promotional exam without even inquiring into whether it was fair and job-related. Even Justice Ginsburg, as she argued in her dissent, would have required the city of New Haven to produce some evidence that the promotion test was invalid.

At a minimum, the holding in Ricci will require employers to be more circumspect before they ignore the results of promotion/hiring tests based solely on the disproportionate impact such selection criteria have on minorities. In short, bean counting alone after the fact will not suffice to justify discrimination against those who achieved passing scores on tests that can be shown to be racially-neutral and job-related. The fact that the desired outcomes were not achieved will no longer support throwing out merit-based criteria. Thus, the “strong basis in evidence” test elucidated by the court, will clearly have an impact on many organization’s existing hiring/promoting policies.

The statutory requisites of disparate impact provide that an employer’s selection criterion that produce a disparate impact will be liable for unintentional discrimination only if (1) the test is not “job-related… and consistent with business necessity,” or (2) the employer is presented with and refuses to adopt another, similarly job-related test with less disparate impact. The inherent problem with the statutory provisions of disparate impact law is that no test or basis for determining merit can ever be perfect and potential litigants could argue endlessly that another job-related test could have been administered that had less disparate impact.

As Stuart Taylor of the National Journal notes:

…racially disparate scores on virtually all objective tests are unfortunately the norm, not the exception. It’s not hard to understand why: Studies have long showed that because of unequal educational opportunities and cultural differences, the average black high-school senior has learned no more than the average white eighth-grader — and considerably less than the average white senior.

Of course, this would be no justification for basing promotions on test scores that have little relationship to the requirements of the job. But the New Haven exam was clearly job-related and carefully developed to insure race-neutrality, as the majority opinion of Justice Anthony Kennedy detailed.

The reality, acknowledged by the Ricci court, is that reverse discrimination is a concomitant aspect of every disparate impact decision or analysis. One of the reasons for the incoherence is that disparate impact theory doesn’t concern itself with actual discrimination but rather inferred discrimination based purely on statistical results after the fact of employer hiring/promotion decisions. Since proponents argue that disparate impact is a remedial device for past discrimination, at what point in time does it outlive its usefulness? Yet, on this important question, many of those who argue for its legitimacy are content to maintain the practice in perpetuity.

The Supreme Court’s decision did not address whether or not the government under the Equal Protection clause, can ever require third parties to intentionally discriminate based on disparate impact. But, the next time the issue is before the court, they will be faced with reconciling the irreconcilable.

The incontrovertible factual circumstance of the Ricci case lend credence to those who assert that no matter what its stated purposes were in theory, in practice, affirmative action — particularly the disparate impact provisions —  has evolved into a doctrine that in some circumstances, concerns itself not with equality of opportunity, but rather, equality of result.

Massachusetts Governor Deval Patrick was the original political harbinger of “Hope and Change.” Patrick, a political novice, successfully used the mantra, replete with all its flowery and vacuous rhetoric, to capture the Governor’s Office. Watching the election from afar, Barack Obama decided that if the tactics worked to elect the state’s first African-American Governor, he could leverage and copy Patrick’s political tactics and achieve similar success. In many ways, Deval Patrick’s gubernatorial campaign theme became a test run for Obama’s quest for the presidency. The rest, as they say, is history.

Yet there are signs that for Massachusetts’ voters, the vapid rhetoric of Hope and Change has finally given way to reality. Patrick’s tenure in office has been marked by fiscal mismanagement and political incompetence on a grand scale. A new Rasmussen poll finds that when paired against Christy Mihos, who captured just 7% of the vote in the gubernatorial election as an Independent candidate, Mihos now beats the Governor 41%-40%. For a sitting governor contemplating re-election, these numbers are foreboding.

Massachusetts has long been a one-dimensional state politically. With just a handful of Republicans in both the House and the Senate, Democrats control the Legislature with predictable results: the state has one of the highest tax and unemployment rates in the nation. Democrats continue to reward the somnolent and mindless voters of Massachusetts who have enabled one-party rule by continuing to treat them with contempt. The Legislature just signed into law a 25% increase in the sales tax; patronage/hack hiring is alive and well and abuses of the public pension system are rampant.

Massachusetts’ voters have seemed impervious to political scandals, venality and corruption rife within the ranks of the state’s Democratic party (the past three Democratic Speakers of the House have all been indicted), not to mention egregious abuse and waste of taxpayer funds.

Have Massachusetts’ voters finally reached a tipping point? It’s hard to say, but the Rasmussen poll contains some interesting additional findings. 71% of poll respondents believe that the Legislature should cut their own pay and 51% agree that the Legislature should be reduced from full to part-time. Perhaps the voters of the Commonwealth have finally realized that no one’s life, liberty or property is safe while the Democratic-controlled legislature is in session. Cutting the legislative session in half may reduce the amount of mischief that can be accomplished.

Since Barack Obama is a clone of Massachusetts Governor Deval Patrick — the original Pied Piper of “Hope and Change”, the Commonwealth may provide a window into the future for the prospects of our newly elected president.

“There’s little political significance to whatever the court decided today in terms of Judge Sotomayor except to render a fairly definitive opinion that she follows judicial precedent and that she doesn’t legislate from the bench.”

Even by the increasingly low veracity standards of the Obama White House, Gibb’s statement is a howler.

White House Press Secretary Robert Gibbs on the Supreme Court’s overturning of Sonia Sotomayor’s 2d Circuit opinion in the case of Ricci v. DeStefano

Hallelujah. Justice at last…

With its reversal of Sonia Sotomayor’s decision in the landmark Ricci reverse discrimination case, the Supreme Court drove a stake in the heart of “disparate impact” discrimination law theory, so dear to the hearts of liberals and the racial grievance industry. The decades-long pernicious practice of discriminating against Whites on the theory that it is justified in order to remedy past discrimination against blacks no longer has any legal justification.

The argument in support of New Haven’s decision not to promote Ricci and other White firefighters who successfully passed the city’s “racially-neutral” test on the perverse grounds that an insufficient number of blacks would be promoted  was exceptionally weak, morally, legally and intellectually. It is instructive to note that the best, most compelling legal argument offered by the city of New Haven in support of discriminating against Ricci was its fear that they would have to defend against suits by black firefighters.

Justice Anthony Kennedy resoundingly rejected this pretense when he wrote: ”Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

Expect wailing from the usual suspects in the racial grievance industry: the NAACP, Al Sharpton, and the post-racial candidate Barack Obama’s attorney general, Eric Holder.

The indisputable and compelling facts of the Ricci case underlies one of the reasons why the American public — by large majorities — is opposed to the continued affirmative action practice of race-based preferences in hiring and promotion. It is axiomatic to all but liberals that the way to end race-based discrimination is to stop discriminating on the basis of race.

That is the clarion call embodied in the Supreme Court’s decision.

Update: 6/30/09 After reading the actual Supreme Court decision in Ricci today, the aforementioned statement I made in this article posted yesterday (immediately after news of the decision hit the newswire services) to the effect that, the Court, “drove a stake in the heart of “disparate impact” discrimination law theory…” was far too sweeping an assertion to make in light of the narrow basis for the court’s ruling. The court did not explicity rule on the constitutionality of disparate impact theory itself, namely the legality under the Equal Protection Clause of the 14th Amendment of race-conscious remedies for situations where no discriminatory intent is present but nonetheless where the results of employer hiring/and or promotion policies, from a statistical standpoint, dispoportioantely impact minorities.

While the court did not specifically rule on the constitutionality of disparate impact remedies, as Justice Scalia noted in the Ricci decision, the issue cannot be sidesteeped forever.

The passage of the cap and trade monstrosity in the House of Representatives last Friday gives proof to Jefferson’s dictum that, “That government is best which governs least.” The strong arm tactics used, the overreaching, the stifling of debate, the speed with which the measure was passed, as well as the havoc it will wreak on a struggling economy, all point to the fact that, when it comes to the nation’s business, legislative restraint is not a vice, but a virtue —  indeed a necessity.

The 1,200 page behemoth, in conjunction with the 300 page amendment, dumped on its members at 3 AM the day of its passage, insured that not a single Congressman who voted for the measure had the slightest idea of what was in the bill when their votes were cast. In short, the entire sordid display was an example of sausage making at its worst. The entire justification for the legislation is based upon a faulty, and by now, thoroughly discredited premise: that man-made carbon emissions are responsible for “global warming.”

The cap and trade legislation authored by radical Congressional Democrats demonstrates tellingly the methodology employed to give expression to their political philosophy: foment a crisis; observations or facts that are inconsistent with either the existence of or extent of the “crisis” are ignored or downplayed; opponents are vilified as adherents of a “do nothing” political party standing athwart the noble efforts to achieve “progress.” The final act in this Democratic drama is to demonstrate your superior virtue, as the party of “compassion”, by dealing with the fabricated “crisis” through legislation.

The exercise of raw political power last Friday in the House of Representatives by left-wing Democrats on cap and trade is simply the latest legislative manifestation of this perverse and pernicious political philosophy that concerns itself more with perception rather than substance; more with means rather than ends.

Ever since the Viet Nam conflict was confined to the ash heap of history, Democrats have become a party perpetually searching for a cause: whether it be agitating for feminism, and egalitarianism, or agitating against discrimination, homophobism and sexism, clarity of moral purpose for Democrats is all that matters. There is nary a thought given to the likely and unintended deleterious consequences that will ensue from the attempt to be perceived as morally superior. The attempt to legislate a cure for ”global warming”, is yet another attempt by Democrats to trumpet their righteousness.

The ultimate irony is that although liberal Congressional Democrats may feel good about the cap and trade bill, since China and India, the world’s largest polluters, are beyond the reach of the legislation, the proposed bill will do nothing to eliminate or ameliorate global warming.

Whether it be destroying the best health care system in the world or a Quixotic quest to address the chimera known as “global warming”, the Democrats’ cure is always worse than the perceived disease. Recent polls indicate that the Democrats’ legislative agenda is out of step with the expressed preferences of the American public, which helps explain why their measures are being passed with alacrity.

As Kimberly Strassel of the Wall Street Journal notes:

Among the many reasons President Barack Obama and the Democratic majority are so intent on quickly jamming a cap-and-trade system through Congress is because the global warming tide is again shifting…

The number of skeptics, far from shrinking, is swelling. Oklahoma Sen. Jim Inhofe now counts more than 700 scientists who disagree with the U.N. — 13 times the number who authored the U.N.’s 2007 climate summary for policymakers. Joanne Simpson, the world’s first woman to receive a Ph.D. in meteorology, expressed relief upon her retirement last year that she was finally free to speak “frankly” of her nonbelief. Dr. Kiminori Itoh, a Japanese environmental physical chemist who contributed to a U.N. climate report, dubs man-made warming “the worst scientific scandal in history.” Norway’s Ivar Giaever, Nobel Prize winner for physics, decries it as the “new religion.” A group of 54 noted physicists, led by Princeton’s Will Happer, is demanding the American Physical Society revise its position that the science is settled. (Both Nature and Science magazines have refused to run the physicists’ open letter.)

The collapse of the “consensus” on global warming is due to inconvenient facts that are at odds with the doomsday scenarios proselytized endlessly by global warming proponents: whether it is the melting of polar ice caps, the rise of the oceans or the incidence and severity of hurricanes, the incontrovertible facts do not support the hypotheses.

We can only hope that cooler heads in the Senate will insure that this legislative cap and trade folly birthed in the House remains stillborn.

It’s becoming hard to keep track of Obama’s ever-evolving position on the Iranian rebellion. Here is a synopsis of Obama’s stance on Iran over the past week. He started by initially characterizing the rebellion as a “robust debate”; next came the more heightened equivocation, when he called upon the theocratic regime to stop its “unjust actions.” He completed his litany on Monday by stating that he is now “appalled” at what is transpiring in the streets of Tehran.

Yesterday, at his White House press conference, he made the laughable claim, when questioned by Fox News Major Garrett, that his position has been consistent. Today, despite stating the exact opposite the previous day, there are reports that he is about to further muddy the waters by possibly rescinding the invitations to Iranian diplomats for the July 4th American embassy barbecues. How is that for coherence?

So it’s official, by his latest statement, how can he not be seen as meddling in Iran’s internal affairs? He has clearly crossed the Rubicon in terms of alienating the mullahs with whom, for some bizarre reason, he still thinks he can charm out of their plans to acquire nuclear weapons. Even Obama’s most ardent supporters on this issue must be embarrassed by his constant equivocations. How can you defend the president’s position when it is constantly refashioned?

Obama’s carefully calibrated and shifting positions on this crisis, based on the reaction of world opinion as well as criticism from Republicans, clearly indicates that his policy is reaactive instead of proactive. As is characteristic of his stance on so many other political issues, Obama has always wanted to have it both ways on Iran. Events however, have forced his hand. And, in the process he has appeared weak and irresolute. Hardly the attributes of an effective and strong leader.