Sotomayor Firefighter Ruling Reversed by High Court

[Count Chocula]

This was a Second Circuit Court of Appeals decision, not just Sotomayor's, but the timing of the decision shortly before her confirmation hearing for the Supreme Court is...interesting.

From Bloomberg:

Sotomayor Firefighter Ruling Reversed by High Court (Update4)

By Greg Stohr

June 29 (Bloomberg) -- A divided U.S. Supreme Court, reversing a decision by Sonia Sotomayor and two other judges, said a Connecticut city violated white firefighters’ rights by canceling planned promotions because no blacks qualified.

The justices, voting 5-4, said New Haven improperly used race as a basis for throwing out the results of a pair of tests administered to candidates for lieutenant and captain positions.

The reverse-discrimination case has become a focal point in the debate over Sotomayor’s nomination to the Supreme Court by President Barack Obama. An appeals court panel that included Sotomayor rejected the white firefighters’ lawsuit, saying the city acted legitimately to avoid discrimination against blacks.

“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,” Justice Anthony Kennedy wrote for the majority.

The justices divided along lines that reflected the majority’s skeptical approach to racial preferences. Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas joined Kennedy’s opinion.

Trade groups representing employers and human resource managers urged the court to uphold the Sotomayor decision. They said employers should have flexibility when they discover that an employment practice is having a disproportionate impact on particular racial groups.

Dissenting Justices

In dissent, Justice Ruth Bader Ginsburg said the ruling means that New Haven, which is about 36 percent black and 24 percent Hispanic, will be served by a fire department “in which members of racial and ethnic minorities are rarely seen in command positions.”

She added: “The white firefighters who scored high on New Haven’s promotion exams understandably attract this court’s sympathy. But they had no vested right to promotion.”

Still, Ginsburg’s reasoning differed from that of Sotomayor and the appeals court panel. Ginsburg said the lower courts should have asked whether New Haven had an objective basis for fearing it would be successfully sued by minority firefighters under Title VII of the 1964 Civil Rights Act.

The trial and appellate courts focused on the city’s “intent,” rather than the underlying evidence, she said. New Haven argued that it had a “good faith” belief that cancellation was necessary to avoid liability under Title VII.

From the Bench

Ginsburg, who took the unusual step of reading a summary of her dissent from the bench, said she would have supported a ruling sending the case back to the trial court level for additional analysis.

Justices John Paul Stevens, Stephen Breyer and David Souter also dissented. The justices today released their final opinions in their 2008-09 term, the last for the retiring Souter.

Kennedy said the city, in order to legally cancel the promotions, needed to have a “strong basis in evidence” that it would have been liable in a suit by black firefighters.

“There is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the city,” Kennedy wrote.

“This decision will change the landscape of civil rights law,” said Professor Sheila Foster of Fordham University in New York City. In response to a question, Foster said the closeness of the vote doesn’t diminish the ruling’s impact.

Civil Rights Act

Twenty firefighters -- 19 white and one Hispanic -- sued, saying they were victims of racial discrimination in violation of the Civil Rights Act and the Constitution. The group was led by Frank Ricci, a dyslexic who said he studied up to 13 hours a day and paid hundreds of dollars to have someone tape-record the materials.

The Obama administration largely agreed with the city’s legal contentions, while saying a lower court should revisit what the city’s motivations were.

Conservatives hailed the ruling, saying it raised new questions about Sotomayor’s fitness for the nation’s highest court.

“Today’s decision is a victory for evenhanded application of the law,” John Cornyn, a Texas Republican who serves on the Senate Judiciary Committee, said in a statement. “And while the justices divided on the outcome, all nine justices were critical of the trial court opinion that Judge Sotomayor endorsed.”

John Payton, the president and director-counsel of the NAACP Legal Defense and Education Fund, said the ruling “imposes new burdens on employers and makes it more difficult to maintain a discrimination-free workplace.”

The cases are Ricci v. DeStefano, 07-1428, and Ricci v. DeStefano, 08-328.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: June 29, 2009 17:02 EDT

It looks like a clear victory for anti reverse-discrimination or quota rules. From what I've read, the actual test in question was thoroughly vetted by New Haven FD committees that had, as members, black, hispanic, and white firefighters. The test was seemingly as non-discriminatory as it was possible to make it.

I find it ironic that those Supremes ruling to overturn the 2nd Court's verdict included Clarence Thomas and Samuel Alito, while the dissenters were all, well, white.

This quote also got my attention, since it shows that at least two of the Justices, Ginsberg and Kennedy, disagreed with the 2nd Circuit Court's rationale for upholding New Haven's position:

Still, Ginsburg’s reasoning differed from that of Sotomayor and the appeals court panel. Ginsburg said the lower courts should have asked whether New Haven had an objective basis for fearing it would be successfully sued by minority firefighters under Title VII of the 1964 Civil Rights Act.

So, 6 out of 7 of the 2nd Circuit Court's high court appeals have been overturned...and Sotomayor's confirmation hearings start in July. Look at it this way: if her nomination is confirmed, she'll arrive in her chair with first-hand knowledge of criteria the Supreme Court judges use to uphold or overturn lower court decisions!

[Darth Wong]

What is this supposed to prove? Many of the Supreme Court justices agreed with the ruling, and it fell along conservative/liberal lines, which is no surprise since Bush packed the court that way, to win these 5-4 decisions.

Oh wait, I forgot that you're one of those "party-line conservatives who pretends he's actually independent while sucking rightard cock and repeating every one of their arguments verbatim" people.

[Ziggy Stardust]

Chocula, I guess you don't realize that the Supreme Court reverses about 75% of all cases that come before it? In fact, the Court almost always goes out of its way to consider only those cases that there is a chance that they will overturn, because it would be a gigantic waste of time and money to consider cases that they know they will uphold.

EDIT: That 75% figure is a long-term average, courtesy of Nate Silver. For just this term, the Supreme Court has overturned 15 out of 16 cases. That's what they do. It in no way reflects poorly on Sotomayor. In fact, you would be hard pressed to find any high profile judge in the country that has NOT had a case overturned by SCOTUS.

[Ziggy Stardust]

Here is the SCOTUS blog's analysis of the decision, by the by (emphases are mine own):

The cases of Frank Ricci and his 17 New Haven, Conn., firefighter colleagues — all whites except one Hispanic — now return from the Supreme Court to lower courts, with only one thing settled: their rights under a federal civil rights law were violated.

The Court’s ruling in Ricci, et al., v. DeStefano, et al. (07-1428) and a companion case with the same name (08-328) says nothing at all about a remedy for that violation, and leaves a host of questions to be answered.

Although the Court decided that city officials in New Haven violated Title VII of the federal civil rights law by failing to promote any firefighters to seven slots for captain and eight slots for lieutenant, it is not clear how many slots are open now — whether more or fewer — and it is uncertain whether the lists of promotions that were to be made from the results of the test in the fall of 2003 remain intact.

The decision does not guarantee an individual firefighter, by name, that he will become a captain or a lieutenant in New Haven. And, while the winners of this lawsuit may very well claim that the denial of promotions entitles them to back pay, or even to money damages, the Court did not address any such claim, leaving it for further exploration by other judges.

While the Court seems to have said that, if an employer – public or private – conducts hiring or promotion tests that are legally sound, those who score highest and meet other selection factors cannot be denied a job or a promotion because of race, the decision does not say that the employer has any duty to avoid closing off jobs or the promotions so that no one is chosen (so long as it does not do so for racial reasons).

No duty, whatsoever, to keep slots open is imposed, although it may be doubted whether many employers would alter their payrolls to eliminate job opportunities just to keep from losing a lawsuit.

The decision did make some things clear, and that will influence what can happen next in the New Haven case, in particular. And there are conclusions in the ruling that definitely will apply to other cases, in court now or in the future, involving claims of racial bias in job placement.

First, the Court ruled that the tests used for firefighter promotions in New Haven were legally valid. Second, it ruled that city officials there had failed to show that there were any alternative tests that could have had less of a negative impact on minority test-takers. Third, it ruled that the city had not shown that it had a genuine fear of being sued by minority firefighters if it gave most of the promotions off the 2003 tests to whites. And, fourth, it appeared to rule that, even if the city goes ahead and uses the test results to promote whites for most or all of any open slots, minority firefighters will have no legal complaint that they were victims of discrimination because the city can claim that it had to make promotions to avoid violating Title VII’s protection for the whites who scored best.

For other cases, the Court’s ruling applies to Title VII cases a concept borrowed from race cases under the Constitution — that is, that using a race-based selection criterion will be allowed only if it is shown, by “a strong basis in evidence,” to be clearly necessary to remedy past racial discrimination.

When applied in a case involving a job test that seems to favor whites over minorities, this standard will require the employer to accept the results and implement them unless it can offer “objective” and “strong” evidence that the test was illegal because it was skewed to work against minorities, and unless it can offer “objective” and “strong” evidence that implementing the results will almost certainly bring on a lawsuit by minorities and that is probably would lose that lawsuit.

It will not be enough, the Court made clear, that the employer had a “good faith” belief that the test was skewed against minorities, or a “good faith” fear that it will get sued if it implements the results.

The new standards the Court has imported into the Title VII legal equation are not really specific or well-defined, so it very likely will take future lawsuits to sort out just what the new requirements mean. In practical terms, it is very likely that employers will have to go to greater lengths to assure that testing protocols are race neutral, and will have to have sounder legal advice about the risks they take under Title VII if they apply test results that have a negative impact on minority workers.

Among the large questions that did not get addressed at all, perhaps the most significant was whether government employers, even if they have a ”strong basis in evidence” that they think will justify making a race-based job selection, will escape liability under the Constitution.

The Court said explicitly that it was not ruling on the question of whether compliance with that standard would satisfy the Constitution’s command of racial equality — in other words, whether a government employer genuinely worried that accepting test results would work against minorities can escape a constitutional violation if it casts aside the results and thus shuts out whites who scored better.

(The constitutional uncertainty only affects government, not private employers, because only government employers are bound by the Constitution.)

[Count Chocula]

**irrelevant talking points with namecalling for lagniappe**

I'm no fan of Sotomayor; Clarence Thomas, for one, seems to have a much better head on his shoulders. What I find more interesting is that, in the cases that did go on appeal to the Supremes and were overturned, the SC justices in their opinions were critical of Sotomayor's arguments and reasoning behind her (and the rest of the panels') decisions. It appears that the existing Supremes have found Sotomayor's jurisprudential quality lacking in some cases. And, if as seems to be the case, any dissent over her confirmation arises from a consideration of her words and her decisions, that's a damn sight better than the "Anita Hill Pubic Hair In My Coke" farce during Justice Thomas' confirmation hearing.

Your dismissing of the Supreme decision as a "blah, blah, the court's already stacked anyway so who gives a fuck you party-line cocksucker" did make me consider, however; if confirmed, she'll just replace David Souter. So the Bush (evil! devil! imp of Satan!) packed court balance won't change at all, unless Thomas, Kennedy, Roberts, Alito or Scalia retire before Ginsburg, Stevens or Breyer. And of course, we all know the Democrats would never pack a Supreme Court!

You've also missed the point of the ruling. New Haven's City Council denied earned promotions to 19 white, and one hispanic, firefighter because the lieutenant's test results did not fit their preconceived racial notions. The Second District Court of Appeals upheld New Haven's reverse racism, and the Supreme Court properly overturned it. The Supremes stood up for equal rights, regardless of skin color.

To Ziggy's point: I agree that the Supreme Court refuses to hear most of the cases; it makes sense that they'd only take the cases they feel should be overturned or reviewed. Most cases, I'm guessing, are pretty cut and dried and would not warrant a review, but since appeal to the SC is a defendant's right, it's exercised. I've used Sotomayor's SC reversals for the simple reason that they're available without digging through the Second Circuit website for hours reading all of her decisions, and because they reflect, at least in part, the current Supremes' judgement of her probity as a nominee for the Supreme Court. While as I said, I don't like Sotomayor as a nominee, look at the bright side: nobody from the Ninth Circus Court was nominated!

[The Original Nex]

Alito had at least two cases overturned before he was confirmed. Roberts has had a case overturned WHILE he was serving as Chief!

This is not unusual, it won't affect Sotomayor's confirmation.

EDIT:

I'm no fan of Sotomayor; Clarence Thomas, for one, seems to have a much better head on his shoulders.

Really? The self-described Libertarian prefers Clarence "we focus too much on rights" Thomas? At least pick a conservative on the court who isn't bat-shit insane! Roberts or Alito maybe, but Thomas? Jeez...

[Ziggy Stardust]

What I find more interesting is that, in the cases that did go on appeal to the Supremes and were overturned, the SC justices in their opinions were critical of Sotomayor's arguments and reasoning behind her (and the rest of the panels') decisions. It appears that the existing Supremes have found Sotomayor's jurisprudential quality lacking in some cases.

Where is your proof of this? Neither the analysis I posted, nor the article you posted, lend any credence to this suggestion. Only 3 cases that Sotomayor authored have gone to the Supreme Court, out of ~150, by the way.

You've also missed the point of the ruling. New Haven's City Council denied earned promotions to 19 white, and one hispanic, firefighter because the lieutenant's test results did not fit their preconceived racial notions. The Second District Court of Appeals upheld New Haven's reverse racism, and the Supreme Court properly overturned it. The Supremes stood up for equal rights, regardless of skin color.

Did you even read the analysis I posted from the SCOTUS blog? Hell, do you even know ANYTHING about the case that you did not hear from Bill O'Reilly? It is not quite as cut and dry as you make it out to be.

I've used Sotomayor's SC reversals for the simple reason that they're available without digging through the Second Circuit website for hours reading all of her decisions, and because they reflect, at least in part, the current Supremes' judgement of her probity as a nominee for the Supreme Court.

Nope. As the Original Nex posted above, it isn't exactly unprecedented for a Court nominee's case to be overturned.

[Rahvin]

Who gives two shits if her decision was overturned?

Think of it this way: the final decision was a 5/4 split, yes?

That means that, out of the 9 justices, 4 of them would have also had their rulings overturned had they been in Sotomayor's place.

The Supreme Court justices aren't expected to agree. Matching up to the majority opinion is not a qualification for being a justice - in the current case, I would assume that Obama would prefer a new justice who would disagree with the Bush-stacked conservative majority.

[Count Chocula]

Where is your proof of this? Neither the analysis I posted, nor the article you posted, lend any credence to this suggestion. Only 3 cases that Sotomayor authored have gone to the Supreme Court, out of ~150, by the way.

Oops, I should have referred to my comments in the last Sotomayor thread. Our sources seem to disagree; in the last thread, I found seven cases referred to the Supremes.

Did you even read the analysis I posted from the SCOTUS blog? Hell, do you even know ANYTHING about the case that you did not hear from Bill O'Reilly? It is not quite as cut and dry as you make it out to be.

Yes I did. My conclusion, from reading the analysis, is that the plaintiffs' civil rights were violated by the city of New Haven, CT. Rights that were violated by New Haven's city officials because no black firemen passed the test. As far as their redress goes at this point, well, I doubt any of them will get their promotions. From a careful reading of the analyst's opinion (which you bolded), it seems the city can simply ignore any future test results if they don't fit the city officials' preconceived, but unarticulated, desires for a certail racial makeup among the FD's officer ranks. I suspect that we'll see a few more cases over the next few years that will hopefully clarify plaintiffs' redress in similar cases.

[Ziggy Stardust]

Our sources seem to disagree; in the last thread, I found seven cases referred to the Supremes.

The source I was using was a little old, back from when Sotomayor was first nominated. I am having a hard time finding a definitive number from a reliable source, however. In any case, it is a pretty small number, which is the point I was articulating.

My conclusion, from reading the analysis, is that the plaintiffs' civil rights were violated by the city of New Haven, CT. Rights that were violated by New Haven's city officials because no black firemen passed the test. As far as their redress goes at this point, well, I doubt any of them will get their promotions. From a careful reading of the analyst's opinion (which you bolded), it seems the city can simply ignore any future test results if they don't fit the city officials' preconceived, but unarticulated, desires for a certail racial makeup among the FD's officer ranks. I suspect that we'll see a few more cases over the next few years that will hopefully clarify plaintiffs' redress in similar cases.

Indeed, my point was simply that the legal issues in the case were grayer than you had indicated in your earlier post. So no further argument on this one.

[CmdrWilkens]

Yes I did. My conclusion, from reading the analysis, is that the plaintiffs' civil rights were violated by the city of New Haven, CT. Rights that were violated by New Haven's city officials because no black firemen passed the test. As far as their redress goes at this point, well, I doubt any of them will get their promotions. From a careful reading of the analyst's opinion (which you bolded), it seems the city can simply ignore any future test results if they don't fit the city officials' preconceived, but unarticulated, desires for a certail racial makeup among the FD's officer ranks. I suspect that we'll see a few more cases over the next few years that will hopefully clarify plaintiffs' redress in similar cases.

Here is the problem. The reason why the 2nd Court ruled the way it did (I wonder if you read up on their decision at all) was that a test which produces such a uniform appearence of bias (even if there is no bias present) presents sufficient risk of lawsuit that the city was correct to scrap the results. That is the 2nd Court ruled (as did the SCOTUS) that the 17 firefighters did have their Title VII rights violated BUT the city had a reasonable basis for doing so as the uniformity of the results presented a reasonable appearence that the firefighters who didn't pass had THEIR Title VII rights violated. Putting it differently the city was between a rock and a hard place. On the one hand they could keep the results and pass the all white class and be subject to a Title VII suit OR they could dismiss the results and be subject to a Title VII suit.

Chuck Todd had the right statement earlier today when he pointed out that the SCOTUS created a NEW TEST for Title VII. Before, and this was the basis on which the 2nd Circuit ruled, if there was sufficient appearence of bias in governmental actions then the government would be justified in revoking the action. That was the rule, the NEW test is that the appearence of bias must be of sufficient breadth that the government must demonstrate it would lose a lawsuit if it did not revoke the action. its a REALLY convoluted mess and points to the favorite word of "Judicial Activism" excepting that the 2nd Court ruled according to the existing law and the SCOTUS overturned and created a new law on this subject.

[Simon_Jester]

You've also missed the point of the ruling. New Haven's City Council denied earned promotions to 19 white, and one hispanic, firefighter because the lieutenant's test results did not fit their preconceived racial notions.

My impression was that something a bit different was going on:

New Haven didn't deny the promotions because they specifically wanted more black firefighters. They denied the promotions because if a black firefighter chose to sue them for discrimination, said hypothetical firefighter would have a good enough case to make them nervous. Among the relevant arguments:

"Why did you choose a written test instead of grading us on performance in the field fighting actual fires?"
"Zero of 27 black applicants were eligible for promotion, out of a pool of roughly 120. Does that not seem a little improbable to you?"

Now, I'm not saying those are good arguments, or that New Haven was in fact discriminating against black firefighters. But the reality is that if they went through with the test results, the city was faced with the danger of a costly legal battle that they might not have won. There are precedents for that kind of thing- minorities have won lawsuits by pointing to statistical differences in outcomes that suggest a systematic bias in the process of testing.
_______

Sotomayor didn't rule on the constitutionality of Title VII; she ruled on whether the city had complied with Title VII. Or rather, whether Title VII required the city to do what the white firefighters sued the city for doing. Because if New Haven was required by law to scrap the test results and start over, then no one can sue them for having done so.

If there is to be any question of Title VII being overruled, it must happen at the Supreme Court level. Frankly, it should be done by Congress and not the courts, but it certainly isn't Sotomayor's job (at least, not now). Given the actual question Sotomayor was presented with, which was "Does the city have to pay damages for scrapping the test?" and not "Is Title VII constitutional?" I think she made the right call. Judging the second issue is above her pay grade.

[The Original Nex]

Chuck Todd had the right statement earlier today when he pointed out that the SCOTUS created a NEW TEST for Title VII.

Yea I enjoyed watching Joe sputter after Chuck dared call the conservatives on the court the activists. Whether or not you agree with courts creating new policy rather than always toeing the line of the law, you have to be able to admit that BOTH the left and the right do it. There aren't many pure "judicial liberals" or "judicial conservatives" who are always "activist" or always "originalist", the judge's ideological orientation often comes into play with if they decide to rule strictly or create a new test/corollary to a law.

[Count Chocula]

Here is the problem. The reason why the 2nd Court ruled the way it did (I wonder if you read up on their decision at all) was that a test which produces such a uniform appearence of bias (even if there is no bias present) presents sufficient risk of lawsuit that the city was correct to scrap the results.

Third, it ruled that the city had not shown that it had a genuine fear of being sued by minority firefighters if it gave most of the promotions off the 2003 tests to whites. And, fourth, it appeared to rule that, even if the city goes ahead and uses the test results to promote whites for most or all of any open slots, minority firefighters will have no legal complaint that they were victims of discrimination because the city can claim that it had to make promotions to avoid violating Title VII’s protection for the whites who scored best.

The Supreme Court's opinion was that the city was in good shape, considering that the test had been designed by a third party to be as impartial as possible. The City, after a series of discussions, disagreed well before this case ever hit a docket. The 2nd Circuit, partly because there was no higher court precedent for a case of this nature, sided with the City.

When this first hit the wires I read a case summary, but I didn't read the whole case. I just spent 30 minutes reading the case and the 2nd Circuit Court's original ruling. From what I can tell, here's the abbreviated sequence of events"

• City of New Haven commissions an equal opportunity FD promotion test
• Twice as many white candidates as black or Hispanic candidates take the test
• Initial test results indicate that whites will take most of the Lieutenant spots, and all of the Captain vacancies
• The city worries about possible Title VII violations
• The Black Northeast Fire Fighter's Association weighs in with an opinion that whites are better test-takers, the test asks things a firefighter's not expected to know, and suggests alternative promotion methods
• The New Haven attorney gets cautious
• The New Haven city council gets cautious and, after much discussion, invalidates the test results
• The denied firefighters, one of whom is Hispanic and none of whom knew if they'd made promotion until the test was thrown out, file suit
• It goes to court, goes to appeal, goes to the Supremes annnnnd here we are with new case law.

A read of the complaint, defendants' reply, and decision clearly indicates (to me at least) that the City of New Haven did its best to have a promotion test that was free of racial bias. When the actual test results were seen, however, they got cautious and perhaps paranoid over possible Title VII violation liability and invalidated the promotion test results. The aggrieved firemen then filed suit. Due to the lack of Supreme Court precedent, and a failure on the plaintiffs' part to present a mixed motives analysis, the 2nd Circuit panel of 3 judges ruled for the defendants. No personal animosity or white/hispanic discrimination seems to be involved at any step of the process; New Haven's approach seems to have been driven by the fear of a lawsuit from the black firefighters who did not pass the promotion test.

[Knife]

lol, it is funny watching the hard right twist and groan about this. The good Judge ruled in favor of the city (states rights, bad Federal Government) and by the strict rule of existing law (no judicial activist). Besides being nominated by Obama, I really can't see why they dislike this woman, she's right up their ideological ally.

[Darth Wong]

**irrelevant talking points with namecalling for lagniappe**

What the fuck kind of retard are you? I accuse you of spouting right-wing talking points, and you simply pull an "I'm rubber, you're glue" retort?

What I find more interesting is that, in the cases that did go on appeal to the Supremes and were overturned, the SC justices in their opinions were critical of Sotomayor's arguments and reasoning behind her (and the rest of the panels') decisions.

Some of the judges were. Surprise surprise; that's what happens when you disagree with something.

If the roles were reversed, you would be crying about how much judicial reform is needed, since this latest ruling is proof that the liberal Supreme Court is biased against conservative judges.

[The Original Nex]

lol, it is funny watching the hard right twist and groan about this. The good Judge ruled in favor of the city (states rights, bad Federal Government) and by the strict rule of existing law (no judicial activist). Besides being nominated by Obama, I really can't see why they dislike this woman, she's right up their ideological ally.

Because the whole "judicial activist" thing is a Red Herring that the media largely goes along with. Conservatives have twisted "judicial activist" to mean: "any ruling that can be construed of propping up liberal political values/programs". Since Sotomayor's ruling upheld to the letter affirmative action/Title VII of the Civil Rights Act she's an "activist" simply because she's "liberal". When Roberts and the right-bloc on the court totally invent a new test that correlates to the original law in order to obfuscate or apply it differently, they aren't activist because they're upholding "good conservative values".

The whole "activist Judge" meme is just another political crock.

[Darth Wong]

It's interesting how the Right is always coming up with innovative new ways to attack someone. Who ever heard of going through someone's record to see if any of that person's decisions were ever reversed by a higher court, and then acting as if each reversal was a rebuke to the person's competence? I don't recall anyone doing that for any of Bush's appointees.

[FireNexus]

That's all the American right can do. Their message of "Fuck everybody else, I've got mine" is difficult to keep up when voters are becoming increasingly aware that they don't have theirs. The Republicans kept up their rhetoric during the last election, and it saw them fail spectacularly. All they can do is throw out accusations and hope they stick. This is as a corollary to hoping the policies of the Democrats fail so spectacularly that they can win an election sometime within the next decade.

I look back at my lolbertarian younger self and wondered how I could be so stupid and delusional. Then I remember I was a teenager, and a feel a bit better. But only a bit.