The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.

I wish the author knew more abou grammar, though ("whom she will replace" is correct)

It's hard for people who think along emotional lines to "get it", but this has nothing to do with empathy. If the people who passed the test were all South Pacific Islanders they should be promoted. Or black. Or Latino whatever that is. The test was specially designed so that the black applicants could pass it. Salon should get a copy of the test and some samples of both passing and failing answer sheets. Then explain why people who could not answer the questions either SHOULD be promoted or why their failure has something to do with race. I DARE YOU.

No need to write a paper. I guess your position is that the five justices of the Supreme Court who were in the majority, and the two on the 2nd Circuit appellate bench who wrote a critique, "don't know the law" either. That also goes for everyone who submitted amicus briefs, and everyone who has written about this case, ad nauseum, for months: professors, practitioners, and experts of every stripe - if they disagree with you, then they "know nothing about the law." In your view there were NO competing principles or values to be addressed, no statutory or constitutional issues (and of course, the Court left the constitutional issue untouched - ready to be tapped for the coup de grace when the right case emerges). As a matter of fact, it's just SILLY that anyone brought this to court at all; the law is SO CLEAR and DEVOID OF CONFLICTING INTERPRETATION OR VALUES that anyone who questions any aspect of what you THINK was SETTLED law (but per force, was NOT) clearly does not "know the law". ONLY Eris 23 knows the law. And yet, for reasons that passeth understanding, no one has put you on the bench. Can't POSSIBLY be knowledge of the law, so it must be TEMPERAMENT.

I can take the critique. (Since our last exchange, I have taken several hours of spiritual counseling, and had a mani-pedi, and I feel at peace now.) However, I note with interest that while you continue to say that I "don't know the law", you fail to cite the law you suggest you know better. But do go ahead and take another crack at it.

I'm not about to write a paper for you. As I've stated repeatedly here, Ginsburg got it absolutely right in her dissent. The fact is that all of the legal precedent leading up to this case led the city of New Haven in a different direction than the radical majority agreed with. If you knew the law, you'd understand this. But, you clearly don't.

As for ignoring my thought experiment, I'm not surprised you chose not to respond to that either, as it would show that your position is built on sand.

Hardly. It would just be me giving in to a tangent that is inapplicable. Thus, I ignored it. Get over it.

I can take the critique. (Since our last exchange, I have taken several hours of spiritual counseling, and had a mani-pedi, and I feel at peace now.) However, I note with interest that while you continue to say that I "don't know the law", you fail to cite the law you suggest you know better. But do go ahead and take another crack at it.

As for ignoring my thought experiment, I'm not surprised you chose not to respond to that either, as it would show that your position is built on sand.

Well, whatever you thought my knowledge of the law was BEFORE, we all know what the law is NOW: Disparate treatment is unconstitutional when used to address disparate impact, unless there is a strong-basis-in-evidence that disparate impact liability would arise from business practices or policies that are not consistent with business necessity.

What staggers me is the continued comfort of people like Ginsburg and the other dissenters with comments like, "other approaches would likely have had LESS adverse impact", or cite approvingly claptrap like "Members of different racial groups, Helms told the CSB, sometimes do their jobs in different ways." Does this mean that the tests should be different for members of each racial group, so that we can test the "black" way and the "white" way to attach a hose, drive a truck, administer various chemicals to various types of fires, or run up and down ladders? Ignoring the fact that Title VII outright forbids differential testing by race (not to mention the 14th amendment), WHY ARE THOSE ON YOUR SIDE SELLING BLACK PEOPLE SHORT? Can you imagine Barack Obama, Harvard grad, editor of the law review, constitutional lecturer, state and US senator and president of the United States, telling Sasha and Malia that "it's okay to get lower grades and test scores - after all, you're black"? Or, "You want to be a doctor? Great. Here's the way black people do heart transplants?"

Real equality means real equality. In this case, a test the composition and wording of which was overseen by nine three-person panels, each consisting of a black, a white and a hispanic is STILL not good enough to satisfy those, like you, who INSIST on judging black people on a lower standard, because of the unspoken but clear-as-crystal presumption that they cannot compete successfully. I dissent.

Instead she sounds like an old bitter woman nursing a grudge. I thought she was so anti-descrimination. Her actions and words sound like something completely different. I can only guess at her motivation.

"This was a joke of a ruling and Ginsburg is right in saying it will have no staying power."

Yep. Ginsburg's dissent was spot on and this ruling will have the staying power of a fart in a hurricane.

"Once upon a time, the goal in America was that every individual would be equal before the law --- now all are equal, but some are more equal than others."

The above is a very amusing construction. The famous "Once upon a time" rears its head. Anyway, notice how the author talks about the supposed goal but somehow just forgets to mention the fact that for the vast majority of this country's history there was open, rampant and pervasive discrimination, which was often coded into law, against women and racial minorities in pretty much all areas of life.

I know the author is trying to pretend that the recent equality under the law somehow magically and instantly mitigated the real life effects of the previous long standing discrimination though that is fairly ridiculous but, I do love the dramatic wailings.