Justice Served

Back in the day, the "spoils system" – to the victor go the spoils – staffed governmental offices. When the electorate voted the rascals out, it voted ALL the rascals out. A new mayor brought an entirely new governmental edifice, from janitors to cops. You wanted to work in Frank Hague’s Jersey City, you played on the Hague team. Period.

Progressives hated the spoils system, believing – often foolishly – that government should be a professional enterprise, essentially immune from politics. Enter Civil Service. No longer would the brother-in-law of the Mayor’s campaign crony enjoy an advantage when seeking employment as a cop; now, positions would be filled on the basis of "merit".

But "merit" is a tricky concept. Objectively measuring a candidate’s qualifications for office produces all sorts of difficulties. Complicating the calculus: civil rights laws, which cast into doubt any test of ability upon which minorities perform less well than do whites.

Did you know that Blacks can’t read or write? Neither did I. But we have it on no less an authority than Associate Justice Ruth Bader Ginsburg of the Supreme Court of the United States. "Relying heavily on written tests," she writes, "to select fire officers is a questionable practice, to say the least." Why? Because Blacks routinely score substantially lower on written tests than whites. Quoting an "expert" on hiring, she contends

"… a person’s leadership skills, their command presence, their interpersonal skills, their management skills, their tactical skills could have been identified and evaluated in a much more appropriate way."

Justice Ginsburg continues her full throated attack on written tests, noting that most municipalities don’t choose their firefighters that way, preferring more "practical" tests. She prefers oral tests, which lead to less "skewed" results.

And why might this be so? Grading oral exams is inherently subjective, and the graders – almost certainly looking to hire and promote minorities – can take what they see (rather than what they hear) into account, and act accordingly. Indeed, Ginsburg’s opinion represents little more than a wink and a nod to expressly taking race into account. Just do it quietly so the white guys don’t have an obvious complaint.

Ginsburg – any liberal – finds herself in a trap. Civil Service rules demand that hiring and promotion follow objective "merit". Those rules were expressly designed to remove subjective determinations from the calculus. Indeed, she whines that "firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow", in part because sons tended to follow fathers into the profession, and departments hired based upon their subjective desires. To prevent favoritism, municipalities adopted tests for "merit". But when those tests produce results Ginsburg and liberals dislike, their proposed solution? Subjective tests, in which race can be quietly taken into account to prevent "disparate" results.

What’s a poor municipality to do? Unhappy with objective measures of ability, Ginsburg demands tests to measure "command presence". Good luck with that. The first time a white gets chosen over a black, the evaluator will be in court defending his methodology. The cries of "racism" will echo, especially if the evaluator happens to be white. "Command presence" will be determined to be "culturally biased". And Ginsburg would eagerly write the opinion which so concluded, averring that there was no objective way to measure such a thing and, hence, permitting its consideration simply allows the perpetuation of a racially stratified command structure.

But if the loser happens to be white …

Because to liberals – including the four politicians comprising the liberal wing of the SCOTUS – results – and only results – matter. That she would write a similar opinion were plaintiffs in Ricci black defies credulity. The rule they follow is simple: if a determination helps minorities, that’s only fair, and completely legal, even if innocent whites get hurt for no better reason than the color of their skin. If the process hurts minorities, even if wholly unrelated to their race, it must, perforce, fail.

The dissent in Ricci precisely tracks the dissent in Parents Involved two years ago. There, certain school districts, allegedly in the interest of "diversity", assigned students based upon their skin color. The effect: some students found their noses pressed against the glass of the schoolhouse door, barred from entry for no better reason than their race.

The inaptly described "liberals" saw nothing whatsoever wrong with this, because the victims were white. Justice Stevens expressly stated, "I have long adhered to the view that a decision to exclude a member of a minority because of his race is fundamentally different from a decision to include a member of a minority for that reason", never mind that in a zero-sum undertaking, employing race to "include" a minority, by definition, uses race to exclude someone else. Only the skin color of the victim varies; the fact of racial discrimination remains. To the left, inflicting demonstrable harm on a white child or employee, expressly on the basis of skin color, matters essentially not at all.

In short, what we have here is an all-American, walking-around, (liberal) judicially-sanctioned double standard.

Ricci comes at an important moment, as Justice-wannabe Sotomayor cast the deciding vote against the victims of discrimination in the Court of Appeals. Justice Ginsburg, channeling Judge Sotomayor, wrote, "the white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy", but Justice Alito, far wiser than the non-Latino woman, would have none of it, writing:

"The dissent grants that petitioners’ situation is "unfortunate" and that they "understandably attract this Court’s sympathy." But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them."

Just so.

This case brings us one step closer to the day when consideration of race will be completely evicted from official discourse, a day upon which the left will finally be forced to admit that the soaring language of Brown applies to everyone, and that a racial spoils system is even more objectionable than its 19th century ancestor. Justice Served