Ruth Bader Ginsburg vs. Frank Ricci
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Ruth Bader Ginsburg was frequently interviewed by admiring journalists, but, apparently, nobody ever asked her to reconcile her strongly stated views on hiring diversity and affirmative action for other employers with her own hiring record of only hiring one black law clerk in 40 years as a judge (approximately 1 black out of 119 clerks hired while on the Supreme Court; during her 13 prior years on the prestigious D.C. Circuit Court of Appeals, she hired zero blacks out of 57 individuals (clerks, secretaries, etc.) she personally hired. So, from 1980–2020, Justice Ginsburg hired black applicants well under 1% of the time.

In 2009 the Supreme Court ruled 5–4 in favor of fireman Frank Ricci and 19 other white and Hispanic firemen in New Haven, CT who had earned promotions on a civil service promotion test that had been carefully and intentionally designed to be fair to blacks, with black firemen in New Haven being given much input into what should be on the test.

But when no blacks scored high enough to earn promotion on the test in 2003, the white Democratic mayor, at the behest of his black powerbroker, ordered the test results torn up.

Obviously, this was an example of racial discrimination by a government official, made especially flagrant by its post hoc nature. The majority of the Supreme Court saw “equal protection of the laws” as applying to white (and Hispanic) victims of racial discrimination, not just to black victims.

On the other hand, Ruth Bader Ginsburg’s minority saw it differently.

From Justice Ginsburg’s losing dissent in the 2009 Ricci vs. DiStefano affirmative action case:

Ginsburg, J., dissenting


07–1428 v.


[June 29, 2009]
Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

In assessing claims of race discrimination, “[c]ontext matters.” Grutter v. Bollinger, 539 U. S. 306, 327 (2003) . In 1972, Congress extended Title VII of the Civil Rights Act of 1964 to cover public employment. At that time, municipal fire departments across the country, including New Haven’s, pervasively discriminated against minorities. The extension of Title VII to cover jobs in firefighting effected no overnight change. It took decades of persistent effort, advanced by Title VII litigation, to open firefighting posts to members of racial minorities.

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.1

As we all know, it’s extremely rare for whites to outscore blacks on valid tests, so therefore any test in which whites do better than blacks on average is automatically suspect.

Seriously … the only “tests” of firefighting ability in which the racial gap is not large are ones in which the graders are allowed to look at the test takers and then give the black ones high scores for imponderables (i.e., for being black). But, much to the disapproval of Justice Ginsburg, only 40% of the New Haven test was oral, while 60% was written (and thus harder to rig in favor of black candidates).

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served—as it was in the days of undisguised discrimination—by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971) , which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.

In other words, the Coalition of the Fringes will bury you doomed Core Americans.

The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92–238, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often “rel[ied] on criteria unrelated to job performance,” including nepotism or political patronage.

OK, but this is now 2009 and not 1971. An enormous effort was made after 1971 to make sure that merit-based employment principles were applied to blacks.

You can see that the antiquarianism that makes up so much of the rationalization for anti-white hatred during the Great Awokening (e.g., Emmett Till, Redlining, Tulsa in 1921) was already active in Justice Ginsburg’s mind in 2009, while the events of more recent decades were getting foggy.

118 Cong. Rec. 1817 (1972). Such flawed selection methods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having “[b]arriers to equal employment … greater … than in any other area of State or local government,” with African-Americans “hold[ing] almost no positions in the officer ranks.” Ibid. See also National Commission on Fire Prevention and Control, America Burning 5 (1973) (“Racial minorities are under-represented in the fire departments in nearly every community in which they live.”).

The city of New Haven (City) was no exception. In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).

Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater proportion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American. See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter CA2 App.). It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed. …

Pursuant to New Haven’s specifications, IOS developed and administered the oral and written exams. The results showed significant racial disparities. On the lieutenant exam, the pass rate for African-American candidates was about one-half the rate for Caucasian candidates; the pass rate for Hispanic candidates was even lower. On the captain exam, both African-American and Hispanic candidates passed at about half the rate of their Caucasian counterparts. See App. 225–226. More striking still, although nearly half of the 77 lieutenant candidates were African-American or Hispanic, none would have been eligible for promotion to the eight positions then vacant. The highest scoring African-American candidate ranked 13th; the top Hispanic candidate was 26th. As for the seven then-vacant captain positions, two Hispanic candidates would have been eligible, but no African-Americans. The highest scoring African-American candidate ranked 15th. See id., at 218–219.

These stark disparities, the Court acknowledges, sufficed to state a prima facie case under Title VII’s disparate-impact provision. See ante, at 27 (“The pass rates of minorities . . . f[e]ll well below the 80-percent standard set by the [Equal Employment Opportunity Commission (EEOC)] to implement the disparate-impact provision of Title VII.”).

Strikingly, there are stronger principled arguments for why Justice Ginsburg should have been cited for hiring discrimination than in the Ricci case. Firemen chiefly battle an objective, non-political problem: fire. The job is not fundamentally political. In contrast, the police are more political (as the etymology of the word “police” would suggest). Thus, it’s not unreasonable to make sure you have more black cops than could be justified by their objective performance.

Even more political are Supreme Court clerks, who, by all accounts, have significant influence over their bosses, who are among the most politically powerful people in the country.

Hilariously, in only one of Justice Ginsburg’s 40 years as a judge did she ever have input from a black among her four clerks.

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