Michael Foody

With  Barack Obama’s nomination of Sonia Sotomayor to the supreme court there is going to be a lot of focus on the case of Ricci, et al. v. DeStefano. This is not only because the Ricci case is particularly controversial (even though it is) but because the Ricci case parallels the case against Sotomayor herself. 

The Ricci case in brief: The New Haven Fire Department sought to fill captain and lieutenant positions. Union contracts required the promotions to be based on the results of an examination. A city regulation states that promotions must come from a pool of the top three scorers. In this particular case this would preclude any blacks from being promoted. Additionally the pass rate for blacks was much lower than the pass rate for whites. Fearing legal action there was an investigation where another testing service representative stated that a  test could be created that would have less disparate results while admitting that the test’s disparity was within legal limits.

There was a vote and the test results were not certified. Some of the top scorers sued. (If you want a better summary read the linked wiki. I’ve found news reports to be uniformly terrible focusing primarily on the public interest angle of Mr. Ricci studying really hard because of his dyslexia which really has nothing to do with the merits of the case.) The legal question of the case is whether it is legal to disqualify a test for having a racial disparity of results, this is separate from the comparatively complicated moral question of whether it is fair to disqualify the results of a test because it would promote less equal outcomes.I think it’s necessary to compartmentalize what’s going on with the Ricci case as it relates the the Sotomayor nomination. What’s going on is not a legal argument. The merits of the legal argument are too nuanced and require an expertise that the pundits don’t have. So the debate that we’re actually engaging in is not about the merits of the case, it’s an argument about versions of fairness. Let’s not be coy, Sotomayor was chosen (in part {and I’ll be repeating this structure so please give me the benefit of the doubt when I don’t qualify every single statement}) because of her gender. Sotomayor was chosen because of her ethnicity. Sotomayor was chosen because of her narrative. All these things are true. The question then becomes, does this make the nomination inappropriate? Based on her resume’ Sotomayor is at least as qualified as Samuel Alito. In fact I would argue that much in the same way Sotomayor was selected by taking into account her identity or narrative in a way that might elevate her over another candidate with a more prestigious resume, Alito was selected by taking into account his fringe ideology especially as it relates to executive power.

Theoretically it would be nice if we chose people solely based on their merits. That’s not going to happen any time soon. The fact is of the nine supreme court justices only one is a woman and it would be difficult to argue that women are somehow innately less qualified then men (theories of greater deviation in the aptitude of males relative to females, and increased monomania in males might provide some kind of cognitive framework for a level of asymmetry). Clearly in the broader society someone is making or has made decisions that create an institutional framework that is favorable to men. The difference between these biasis and the bias exhibited in Obama choosing Sotomayor is that the bias in favor of white men is so normal as to be rendered invisible. Alito was chosen without the same sort of whisper campaign about his intellectual meddle that Sotomayor has had to endure despite having almost identical qualifications, and this difference itself can be taken as evidence of the pervasive bias that Sotomayor’s nomination is seeking to correct for. You can call it discrimination or reverse discrimination but unless you are willing to actually come out and say a group is somehow actually just inferior to the dominant group you have to admit that there has to be a reason, either historical, cultural, or institutional for the inequality of outcomes. Maybe the test itself was not littered with white culture shibboleths in a way that was responsible for the racial disparity in the pass rate, maybe the difference was instead in the school systems funded by property taxes which are lower in a black neighborhood for no other reason than because it was a black neighborhood. Is it valid to correct for one bias and not for another?

Growing up my father was fond of saying “life isn’t fair” this, as a descriptive statement supremely uncontroversial, but there is a powerful temptation by those who have benefited from the unfairness to take the descriptive as proscriptive: “life isn’t fair” can easily become “life ought not be fair”. The fact that life is unfair is not an excuse for its unfairness anymore than “people cheat on their wives” is an excuse for adultory. Absent proof of inherent inferiority (and be cautioned to be deeply suspicious of such proof  {as history is littered with examples of such proof being torn to shreds with the advance of science}) the equality of outcomes is the only fair way to judge the equality of oppurtunity.