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This week, the Supreme Court ruled 5-4 for the white and Hispanic
firefighters, overturning Sotomayor's endorsement of racial quotas.
But all nine justices rejected Sotomayor's holding that different
test results alone give the government a green light to engage in race
discrimination. Even Justice Ginsburg's opinion for the dissent clearly
stated that "an employer could not cast aside a selection method based on a statistical disparity alone."
I note that Ginsburg has not shown any particular interest in
rectifying the "disparate impact" of legal exams: She never hired a
single black law clerk out of the dozens she employed in more than a
decade as an appeals court judge. (Her hiring practices on the Supreme
Court are a state secret, but I can state with supreme certainty that
her clerks do not reflect the racial mix of Washington, D.C.)
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