Michael Jackson and Fred Astaire

It's not widely remembered today, but Fred Astaire was a sizable singing star in his day, who introduced such standards as "Night and Day," "Cheek to Cheek," "The Way You Look Tonight," "They Can't Take that Away from Me," "Something's Gotta Give," and even that noir classic "One for My Baby." Although he had a light voice, his perfect timing and professionalism were much appreciated by composers. Today, anthologies of Great American Songs that can't afford the rights to Frank Sinatra's recordings will often choose Astaire's 1952 re-recordings of his work with Oscar Peterson's quintet as the next best thing.

In other words, Astaire's talents were roughly similar to Michael Jackson's: great dancer, pretty good singer.

But, jeez, look at the difference in their careers and lives: Astaire lived to be 88, exemplified the concept of growing old gracefully in how he slowly wound down his show biz career, enjoyed a decorous private life devoted to his family and his grown-man hobbies (horseracing and golf), and left behind an enormous body of creative dance work in his movies. With Astaire, there's no single peak that overwhelms everything else.

Astaire didn't write songs, but Jackson, who couldn't play an instrument, wasn't particularly fertile of melodic invention, either: even "Billie Jean" succeeded because of an enormous amount of production effort -- it was mixed 91 times -- that went into making it sound minimalistically under-produced. Jackson would have benefited from the pre-Dylan assumption that singers didn't have to write their own music.

For Michael as a dancer, what to do we really have? The live "Billie Jean" on the Motown 25th Anniversay show, the "Beat It" video, and a few other peaks, but most everything else is overshadowed in the build-up to or let-down from 1983.

One of Jackson's career problems was that, unlike Astaire, he appeared in only one real feature-length musical movie, The Wiz. Our popular culture had largely lost its ability to make musical movies. In contrast, the lightweight musical comedies of the 1930s provided Astaire with an established genre, routine frameworks within which he could repeatedly exercise his genius without worrying too much about script, acting, the Meaning of It All, etc. The studio system took care of that kind of thing. (Berry Gordy modeled Motown on 1930s Hollywood studios, and had remarkable success that has never been surpassed, but the cult of authenticity makes that impossible to reproduce in pop music today above the teenybopper level.)

Musical comedy movies gave Astaire a reason to get up and put in a hard day's work doing something he knew how to do. He didn't wait around for inspiration to strike him; the inspiration would come during the drudgery. Astaire was by no means psychologically bullet-proof. He was insecure and used his inner nagging voice to push him to constantly revise and improve his dance sequences. But then get up the next day and start on the next one.

The more ambitious genre of musicals that Rodgers and Hammerstein introduced with Oklahoma in 1943 were a great leap forward aesthetically, but perhaps they began to introduce that note of megalomaniacal artistic ambition into American pop music -- notice how, say, Leonard Bernstein was permanently stuck by his inability to top West Side Story -- of which Jackson's later career was a sad exemplar.

Unlike Fred Astaire, Michael Jackson didn't have any kind of framework. Astaire was a craftsman who happened to be a genius. Jackson was a genius for about six months at age 25, and spent the rest of his life having people tell him he was a genius.

My published articles are archived at iSteve.com -- Steve Sailer

The American Media's Bias toward English-Speaking Foreigners

The Iranian election protests have apparently sputtered out, significantly faster than the Mexican election protests of 2006 that excited far less interest in the American press. Obviously, there are a lot of specific reasons for this disparity, but I think there's a general pattern emerging.

As English has become the world's dominant language, it has become easier for Americans to be influenced by foreigners who are fluent in English. For example, Americans follow political controversies in Iran by reading blogs by Iranians -- Iranians who like to write in English, of course, which is hardly a representative sample of Iranian opinion.

This means that the American press will tend to be biased toward political movements who represent the better educated, wealthier, more cosmopolitan, Internet-savvy, and more elitist elements in a foreign country (i.e., those likely to speak English well), while the American media will be less sympathetic toward parties comprised of the less educated, poorer, more xenophobic, offline, and more populist elements.

Thus, the American media was sympathetic toward Mousavi's complaints about vote-counting in Iran because because his supporters were good at communicating them to Americans, while the populist Ahmadinejad draws his support from uncool people who don't speak much English. In contrast, the complaints of Lopez-Obrador, the populist mayor of Mexico City, about vote-counting in Mexico were greeted with yawns in the U.S. press because his supporters are generally not very articulate in English, and his party's ideology is fairly anti-American and anti-globalist.

Being biased toward the better English speakers is not just a custom of convenience for the American media and the American government. There's a moral feeling as well that the better English speakers deserve to win because they are more like us. Of course, this is self-serving: promoting the triumph of English-proficient classes also promotes the global dominance of American media institutions.

This is hardly a new phenomenon, of course. FDR's Administration routinely overestimated Chiang Kai-shek's regime in part because it possessed a facade of charming English-speaking UCLA and Berkeley-educated officials, even though the real decisions were made in very Chinese ways that Washington never understood. Meanwhile, Mao's rebels had few English speakers, so FDR underestimated them.

Similarly, why did the U.S. side with Maliki's Iranian-aligned Shi-ites in Iraq, when it would have made more strategic sense to side with the anti-Iranian Iraqi nationalist Shi-ites of Muqtada al-Sadr? A big reason is that Maliki's gang, who had spent decades in Iran while their rivals were holed up in the slums of Iraq (such as Sadr City), were more cosmopolitan -- i.e., were better at speaking English.

My published articles are archived at iSteve.com -- Steve Sailer

Mr. Ritholtz replies: "They are cogent arguments ..."

In a new Comment, Barry Ritholtz, blogger (The Big Picture) and author of Bailout Nation: How Greed and Easy Money Corrupted Wall Street and Shook the World Economy, replies to a sampling of my articles on how "Diversity was a major factor in the mortgage meltdown:"

I think we are approaching this from two entirely different universes.

I am looking for cause and effect; I want to see data that supports or detracts from the proposition at hand. PROVE TO ME that X caused Y (including actual statistics).

Your proposal of Diversity causing the housing crash reads to me as a soft philosophical argument that is by definition unprovable -- and undisprovable.

At the very least, I see no proof in your writings. They are cogent arguments that leap from A to B to C -- but they lack the rigorous statistical evidence to demonstrate something convincingly to people who insist on hard data.

In my belief system, I use as few assumptions as possible. I try to avoid things that are unquantifiable. Statistical back testing is just on way to do that.

But even softer analyses such as war-gaming and alternative scenarios have to have some reasonable basis for proceeding. It cant be all assumptions, beliefs guesses and hunches.

This shows heartening progress in just a few days. Before he was exposed to my work, Mr. Ritholtz was denouncing and demonizing anybody who shared my views.

Here's a sample of what he wrote at the beginning of this week:

I’ve run out of patience with tired memes and discredited claims by fools and partisan.

The rhetoric of those pushing nonsense on the public in an attempt to confuse rather than illuminate — the phrase is “agnotology” – only serves to aid the lobbyists working on behalf of the Banks and Investment houses to maintain the status quo. ..

The nonsense rhetoric blogged about has no cost to those pushing these discredited memes ...

Now, having finally read my articles, he admits I offer "cogent arguments." He no longer seems to think he can prove them wrong, so he's insisting that I haven't proved them right.

He today argues, not incorrectly, "but they lack the rigorous statistical evidence to demonstrate something convincingly to people who insist on hard data."

Of course, that tends to be true of all historical writing. As the venerable historian Jacques Barzun wrote at age 93 in his summa, From Dawn to Decadence, in one of his 12 modest dictums summing up what he's learned during his career as a historian:

The historian does not isolate causes, which defy sorting out even in the natural world; he describes conditions that he judges relevant, adding occasionally an estimate of their relative strength.

Further, let me point out, that I'm not done yet collecting data. For example, we now know the subprime default rates by race for the state of Massachusetts. We now know, on a national level, the default rates by race for FHA loans in the 1990s. Eventually, somebody will apply the same laborious process to the Big One -- California -- and then we will be a lot farther along.

In summary, as Mr. Ritholtz more or less admits, my arguments, long ignored, distorted, or demonized, deserve a place at the table in any discussion attempting to discern the historical causes of the present unpleasantness.

My published articles are archived at iSteve.com -- Steve Sailer

"Who? Whom?" Part 418

As Justice Alito's concurring opinion in Ricci documented in amusing detail, Frank Ricci and colleagues were the victims of blatant racial discrimination by a black power broker and his allied white mayor in New Haven.

Stanford Law Professor Richard Thompson Ford says, that, well, equal protection of the laws isn't the point of civil rights legislation. Sure, the laws include a lot of colorblind rhetoric, but the whole point is to benefit blacks at the expense of whites, so it's a dirty trick for the Supreme Court to read the laws and the Constitution literally and apply them evenhandedly. He writes in Slate:

The plaintiffs in Ricci were undoubtedly sympathetic: hardworking public servants—17 of them white, one Hispanic—who expected that the exam they studied for and did well on would determine their eligibility for moving up the ranks. But their legal argument is the latest in a long-standing campaign to turn civil rights laws against themselves. There's a striking progression in the attacks on civil rights. In the early 1970s, affirmative action was widely considered to be a logical extension of civil rights principles: Even President Nixon—a man not known for his enlightened racial attitudes—supported it. But by the end of the decade, affirmative action was under attack as reverse discrimination. And now we see the next step in the march against civil rights with the part of federal civil rights law—Title VII—called "disparate impact" that prohibits employers from using promotional or hiring procedures that screen out minorities unless they can prove that the procedure is closely job-related.

My published articles are archived at iSteve.com -- Steve Sailer

Fixing the Supreme Court

That Justice Ginsburg's dissent in Ricci managed to get four out of nine votes points out major flaws in both American intellectual life and in the Supreme Court.

Some of what's wrong with the Supreme Court is structural. Justices used to drop dead of heart attacks before they aged too far into mental decline. By this point, lots of people have heard about the best solution: replace lifetime tenure with single 18 year terms, with the President getting to select two justices for each election he wins.

What nobody knows, as far as I know, is how to get there from here. How do you work out which Justice gets forced into retirement first to make room for new blood? This could be very hard to work out in a bipartisan manner. (If you have any technical suggestions for how the transition should be managed, please put them in the comments.)

Now that the Democrats have complete power in Congress and the White House, however, they can just go ahead an make this reform on their own. I can't imagine they would, though.

A more subtle defect in the Supreme Court is the lack of adult supervision. We still have the obsolete system of ailing Justices such as 76-year-old Ginsburg (cancer surgery in February) and extremely elderly Justices (Stevens is a ridiculous 89) being assisted solely by clerks who are largely in their late 20s: the senile being aided by the puerile.

Consider the futility of relying on clerks for a complicated topic like testing in the Ricci case. Do you think Justice Ginsburg's clerks were told the truth about testing when they were in law school? I don't care what your LSAT score is, to understand the reality behind Ricci, you have to do a lot of self-education and you have to learn about how the world really works. And that takes time. I moved to Chicago at age 23, and from then on I heard a lot about fireman and policeman testing, but it took me until my mid-30s to develop a mature understanding of the subject that wasn't just based on idealistic assumptions about how things should work. And I'm still figuring out things about fireman testing that make me say, like Huxley reading The Origin of Species, "How stupid of me not to have thought of that."

Occasionally, we see Justices instead hiring grown-up clerks with some experience of life (Justice Thomas recently hired a clerk who had already made partner at her law firm), but the salary is only around $65,000. (Supreme Court clerks get big signing bonuses from the private law firms that hire them when their year is up, but still ...)

What we need is a modest budget (say, $3 million per year across the 9 Justices) to allow each member of the Supreme Court to hire a mature Chief of Staff to manage the clerks, with, say, a three year term.

My published articles are archived at iSteve.com -- Steve Sailer

Ricci: When even the NYT Letters-to-the-Editor make sense

Traditionally, the New York Times has the world's worst Letters-to-the-Editor page, filled with credentialed but clueless poohbahs writing in to say how much they agree with the NYT's soporific editorials, but they were disappointed that the editorial didn't include some additional argument so dumb that not even the NYT Editorial board would fall for it.

It indicates just how badly the diversitarians got smoked intellectually on Ricci that even the NYT's Letters-to-the-Editor section (The Firefighters' Test: Flawed or Fair?) responding to the paper's editorial denouncing the New Haven test is pretty good.

My published articles are archived at iSteve.com -- Steve Sailer

Troy Patterson

I've been giving various Slate writers a hard time lately, so I want to say how much I enjoy the work of Slate's TV critic Troy Patterson.

My published articles are archived at iSteve.com -- Steve Sailer

More on Michael Jackson

Over in Taki's Magazine, I write:

The late Michael Jackson was a strange individual, but his various obsessions, such as weight loss, whitening his skin, and expensively designing his children, were hardly unique to him.

They are shared by more than few of his legion of female fans. To become a superstar, you have to embody some of the inner fixations of either the male or female publics. And in popular music in recent decades, the biggest names have had largely feminine audiences because male tastes have fragmented into multitudinous narrow genres, such as, say, Melodic Death Metal.

Read the whole thing there and comment on it here.

My published articles are archived at iSteve.com -- Steve Sailer

The Mortgage Meltdown and Pearl Harbor

Look, Sailer, why do you keep saying that we should keep in mind that Pearl Harbor got us into World War II? Lots of other countries got into World War II without Pearl Harbor happening to them. And even if Pearl Harbor never happened to us, we probably would have gotten into World War II eventually anyway. Therefore, you should shut up, and nobody should ever mention Pearl Harbor again.

Or:

C'mon, Sailer, why are you so evil as to mention the Wall Street Crash of 1929 when discussing the Great Depression? Lots of other countries were involved in the Great Depression. And even if there hadn't been a Wall Street Crash in 1929, the U.S. probably would have suffered in a Great Depression sooner or later anyway. Thus, logically, anybody who mentions the Wall Street Crash of 1929 should be hounded out of polite society.

My published articles are archived at iSteve.com -- Steve Sailer

Liberals to America: Hey, we were only kidding about "equal protection"

The Ricci reactions have made more evident that liberals are peeved that anybody takes seriously all that language in the civil rights laws about equal protection. In the liberal mind, the specific wording of the laws was just a sham to get them approved. The laws are really simply about "Who? Whom?" Thus, the idea of civil rights laws being used by the Supreme Court to protect the civil rights of white guys like Frank Ricci is an affront against all that is holy (i.e., civil rights laws).

Consider this entry, From Washingto to New Haven, the Rules They Are A-Changin', on the Washington Post's XX blog by Nicole Allan, the Slate intern/Yalie who coauthored with Emily Bazelon that long article in Slate entitled The Ladder.

The plaintiffs in the hotly contested affirmative action case Ricci v. DeStefano stood out among the crowd outside New Haven City Hall today. They wore dress blues and wide smiles or poker-faces that occasionally cracked into grins. They were, but for one, white, and they were celebrating their win in a 5-4 decision handed down by a sharply divided Supreme Court.

Mingling on the sidewalk before the conference, plaintiff Frank Ricci posed for photos with his family. Ben Vargas, the one Hispanic amongst the 18 plaintiffs, grinned beneath his sunglasses and crisp peaked cap. Attorney Karen Torre, surrounded by her clients and jokingly donning one of their caps, delivered a statement in boldly Obama-esque fashion: “We had the audacity of hope—that some court at some point would enforce the letter and spirit of the civil rights laws, accord to firefighters the recognition and respect that they deserve, and reject attempts to lower professional standards of competence for the sake of identity politics.”

It took some audacity indeed to invoke Obama in support of a lawsuit that called into question the country’s most significant civil rights statutes. ...

I kept thinking about the black firefighters I’ve been talking to over the past few weeks, none of whom I saw at the press conference. After decades and decades of lawsuits founded upon civil rights statutes, they have started to get ahead. Blacks and Hispanics, who make up about 60 percent of New Haven’s population, are now more or less proportionally represented within the rank and file of the city’s fire department. But their efforts to penetrate the upper management ranks have been less fruitful. Currently, only one of the city’s 21 fire captains is African-American. The anti-discrimination laws that once won them spots in New Haven’s firehouses are now the laws that have planted the smiles on Frank Ricci’s and Ben Vargas’ faces. There go the rules, changing again.

As Strobe Talbott wrote in Time in 1982:

Lenin, with his knack for hortatory pungency, reduced the past and future alike to two pronouns and a question mark: "Who—whom?" No verb was necessary. It meant who would prevail over whom? And the question was largely rhetorical, implying that the answer was never in doubt. Lenin and those who followed him would prevail over "them," whoever they were.

The funny thing is how modern American liberals consider their Who? Whom? mindset not cynical, but sacred.

My published articles are archived at iSteve.com -- Steve Sailer

Barone on Ricci

Michael Barone has a good column today on Ricci, Firefighter case shows seamy side of racial politics, which is clearly drawn from my stuff. Considering all the mean things I said about him a number of years ago, it's big of him to be a reader.

My published articles are archived at iSteve.com -- Steve Sailer

Mr. Ritholtz replies

From the comments section of my recent post offering a reading list to bring Barry Ritholtz, blogger (The Big Picture) and author of Bailout Nation: How Greed and Easy Money Corrupted Wall Street and Shook the World Economy, up to speed on how "Diversity was a major factor in the mortgage meltdown:"

Ritholtz said...

My bad -- I guess I am not clearly defining what I mean by "Data".

Allow me to present an example:

The Federal Reserve Board data shows that:

* More than 84 percent of the subprime mortgages in 2006 were issued by private lending institutions. These firms are not covered by the CRA

* Private firms made nearly 83 percent of the subprime loans to low- and moderate-income borrowers that year.

* Only one of the top 25 subprime lenders in 2006 was directly subject to the CRA.

Sources:
http://www.federalreserve.gov/pubs/bulletin/2007/articles/hmda/default.htm

and
http://www.fdic.gov/news/news/financial/1999/FIL9920a.html

amongst others

This is what I mean by data, from reputable sources, relating to the actual issue at hand.

My apologies for any prior confusion...

Dear Mr. Ritholtz:

We are discussing whether or not "Diversity was a major factor in the mortgage meltdown." I realize you wish to confine the debate to the narrowest possible technical question of institutions officially covered by the Community Reinvestment Act. As you will recall, however, my invitation to you to debate me here rejected such a contrived and unenlighteningly narrow limitation of the topic. I wrote on Monday morning:

I would certainly debate him on the topic "Diversity was a major factor in the mortgage meltdown."

The causes are much bigger than the Community Redevelopment Act. I've always argued that George W. Bush's drive to add 5.5 million minority homeowners, as enunciated at the October 15, 2002 White House Conference on Increasing Minority Homeownership, by abolishing down payment requirements and by allowing "low doc" mortages (a.k.a., liar loans) was more directly responsible. But they are obviously both part of the same overall Diversity mindset.

Moreover, you should realize by now from reading those nine articles (you have read them by this point, haven't you?), you are drawing a legalistic distinction that didn't have a real world difference. Nonbank mortgage lenders not officially covered by the CRA, such as Angelo Mozilo's Countrywide, were told in no uncertain terms by the Clinton Administration that either they could start behaving like they were covered by the CRA or the CRA would be legislatively extended to them.

As Steve Malanga explained in the Spring 2009 City Journal:

"Pressuring nonbank lenders to make more loans to poor minorities didn’t stop … If it didn’t happen, Clinton officials warned, they’d seek to extend [Community Reinvestment Act] regulations to all mortgage makers. … To rebuff the criticism, the Mortgage Bankers Association (MBA) shocked the financial world by signing a 1994 agreement with the Department of Housing and Urban Development (HUD), pledging to increase lending to minorities and join in new efforts to rewrite lending standards. The first MBA member to sign up: Countrywide Financial, the mortgage firm that would be at the core of the subprime meltdown."

Both in order to maintain the favor of regulators, politicians, Fannie and Freddie, and the media, and because Mozilo appears to have been a true believer in the Diversity dogma and saw himself as sticking it to the old WASP finacial establishment by lending money to "underserved Americans" (as Connie Bruck's recent New Yorker article makes clear), Countrywide made pledges identical in form to the pledges made by CRA-covered institutions, such as Mozilo's $1 trillion (that's trillion with a T) promise on January 14, 2005. (See Countrywide's press release entitled Countrywide Expands Commitment to $1 Trillion in Home Loans to Minority and Lower-Income Borrowers.)

Once you've finished reading my nine articles, Mr. Ritholtz, so that you are up to speed enough to carry on a sophisticated discussion of "Diversity was a major factor in the mortgage meltdown," please come back. I look forward to carrying on a well-informed discussion.

My published articles are archived at iSteve.com -- Steve Sailer

The intellectually feeble left wing of the Supreme Cout

Half Sigma offers a lucid review of Justice Ginsburg's dissenting opinion in Ricci:

Instead of rejoicing over the outcome of the Ricci case, the fact that four justices signed on to GInsubrg’s dissenting opinion fills me with both anger at liberals and dread that the liberal viewpoint will eventually triumph over reason and sensibility. Ginsburg writes, “The Court’s order and opinion, I anticipate, will not have staying power.” I translate this as meaning that Obama is going to be president for another seven and a half years, so the liberals are only one heart attack away from reversing Ricci and imposing their will. It’s an unusually unsportsmanlike statement and demonstrates a disrespect for stare decisis that’s unbecoming of a Supreme Court justice. When something like that shows up in a dissent, it indicates that the decision created a great deal of ill will.

As I explained in my previous two posts analyzing the Ricci decision, the statutes passed by Congress are racially neutral and state that it’s unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 USC §2000e–2(a)(1). It doesn’t say that it’s only unlawful to discriminate against minority races. The Supreme Court has continuously paid at least lip service to the concept of race neutrality, and theoretically there are only a few limited circumstances in which it’s legal to discriminate against whites in order to favor minority races. One such circumstance is in education where the need for “diversity” is such a compelling interest that it allows colleges to consider race as a factor in admissions See Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

It seems clear to me that Ginsburg doesn’t agree with the idea of race neutrality. She believes that it’s always desirable to discriminate against whites, and presumably Asians as well, in order to benefit blacks and presumably Hispanics. But she dare not say this directly in her opinion, because such a direct statement of what the left really wants is unpopular with the majority of Americans, and it would also make her dissent irrelevant because it would be such an obvious misstatement of the current law, a misstatement of both the text of the statutes and judicial opinions interpreting the statutes. Her actual dissent is a lot more pernicious, because it undermines the holding of the majority by repeating and thus bolstering the standard liberal half-truths and lies.

If you don’t believe my view of Ginsburg’s true motives, then try to imagine how she might have decided this case if the facts were the same except the races were reversed. After the city gave the test, too many blacks did well on the test, and white groups in the city complained that too many blacks were being promoted, and then the city threw out the results under the pretext of disparate impact. Does anyone seriously think that Ginsburg would agree with the city? Hell no! It would be an obvious case of discrimination against blacks!

At the beginning of her dissent, Ginsburg mentions that the city is nearly 60% “African-American” and Hispanic. She thinks this bolsters the view that the fire department needs more black and Hispanic firefighters in command position. This is only because she judges fairness by outcomes. From my perspective, the fact that non-Hispanic whites are a minority in the city of New Haven makes it more likely that the city refused to certify the test results for the worst possible reason; to discriminate against a minority (non-Hispanic whites) in order to benefit the majority.

Read the whole thing.

That brings to mind the intellectual firepower imbalance currently on display in the Supreme Court:

The right wing:

Chief Justice Roberts is 54. He may have epilepsy, though.

Alito is 59.

Scalia is 73.

Thomas is 61.

Kennedy is 72.

Average age is 65.

The left wing:

Breyer is 70.

Ginsburg is 76 and was operated on in February for pancreatic cancer. It's really rather heroic that she (or her clerks) came up with the dissenting opinion at all, and its quality should be mercifully evaluated in light of that.

John Paul Stevens is 89. It's basically a scandal that somebody is on the Supreme Court at age 89. The press didn't complain about it during the Bush years for obvious reasons.

David Souter, the original Stealth Nominee, is only 69, but is apparently so out of it that he's packing it in.

Average age 77 (rounding down).

Basically, the liberal team on the Supreme Court consists of one very smart guy just entering his 70s and a very motley supporting crew. I wonder why Breyer didn't write the dissenting opinion. Perhaps he just couldn't bring himself to be as obtuse and mendacious as it took to get the job done.

Souter will be replaced by 55-year-old diabetic Sonia Sotomayor, who is hard working and will be a reliable vote for the left, but who isn't likely to be the second coming of William Brennan in terms of persuading the other Justices to move to the left through Machiavellian manipulation. Sotomayor got the nomination because Obama, in effect, drew a Venn Diagram consisting of circles labeled "Hispanic," "female," "not old," "liberal," and "credentialed enough to be plausible," and Sotomayor was the last one standing.

So, you can expect pressure to build on Stevens from the media and the Obama Administration (not that there's much distinction between the two these days) to get the hell out, no later than his 90th birthday next April.

Look for Obama not to draw a Venn diagram next time and waste another pick, but to find somebody who will be highly effective.

My published articles are archived at iSteve.com -- Steve Sailer

I think The Who had a song about this

From AOL News:

A Swedish couple's decision to keep their toddler's gender a secret is stirring debate, especially now that the parents are expecting a second child.

"Pop" is 2 ½ years old, but so far only those who change the child's diapers know whether the youngster is a boy or a girl, TheLocal.se, an English-language site for Swedish news, said last week.

Back in March, the parents gave an interview to the Svenska Dagbladet newspaper, saying they decided not to reveal their child's sex because they believe gender is a social construction. "We want Pop to grow up more freely and avoid being forced into a specific gender mold from the outset," said the child’s mother, "Nora." (The paper used fake names for the entire family to protect their privacy.)

"It's cruel to bring a child into the world with a blue or pink stamp on their forehead," the mother said.

The parents, both 24 years old, said they never use personal pronouns when referring to the child. They just say "Pop."

The tot wears everything from dresses to pants, and Pop is usually the one who decides what to wear on any given morning. Pop's hairstyle is also changed on a regular basis, so it doesn’t provide any clues.

Swedish gender equality expert Kristina Henkel told The Local that the experiment could make Pop a stronger person, since he or she won’t be subject to gender stereotypes.

By The Who:

I'm A Boy
(Pete Townshend)

One girl was called Jean Marie
Another little girl was called Felicity
Another little girl was Sally Joy
The other was me, and I'm a boy

My name is Bill and I'm a headcase
They practice making up on my face
Yeah, I feel lucky if I get trousers to wear
Spend ages taking hairpins from my hair

Chorus 1
I'm a boy, I'm a boy
But my ma won't admit it
I'm a boy, I'm a boy
But if I say I am I get it

Put your frock on Jean Marie
Plait your hair Felicity
Paint your nails, little Sally Joy
Put this wig on, little boy

Chorus 1

I wanna play cricket on the green
Ride my bike across the street
Cut myself and see my blood
I wanna come home all covered in mud

Chorus 2
I'm a boy, I'm a boy
But my ma won't admit it
I'm a boy, I'm a boy, I'm a boy
I'm a boy, I'm a boy, I'm a boy, I'm a boy
I'm a boy, I'm a boy, I'm__ a__ boy__

My published articles are archived at iSteve.com -- Steve Sailer

Why South Africa isn't going to be Zimbabwe South

People always get mad at me whenever I suggest that Zimbabwe might hold some suggestions about South Africa. Yet, it's as if something happened to Canada, you wouldn't be too surprised if it later happened to the U.S.

They tend to sputter when denouncing the very idea that Zimbabwe is just South Africa with a 14 year head start. Everything is so different!

I've finally figured out one relevant difference. The old Rhodesians had to work, hard and competently, for their wealth. They were world class farmers, and then during the embargo of 1965-1980, they built up their own industries.

So, when the new rulers of Zimbabwe started murdering the farmers, stealing their farms, and driving off the other people who knew how to do stuff, it all went to hell.

In contrast, much of South Africa's economy is mineral, which generates huge profits with small skilled workforce; the mines' wealth can paper over much shortfall in other parts of the economy.

My published articles are archived at iSteve.com -- Steve Sailer

The left took an intellectual drubbing on Ricci

The ignorance and just plain dumbness of the purveyors of conventional wisdom is one of the most obvious lessons of the Ricci case. They got drubbed in the Supreme Court decision in large part because they don't know anything about topics like testing and couldn't think rationally about it even if they did.

Consider this statement today from the Washington Post-owned Newsweek by Slate's regular Supreme Court reporter Dahlia Lithwick:

Once upon a time, civil rights laws had two vehicles—one forbidding "disparate treatment" (overt racial discrimination) and one prohibiting disparate impact (discriminatory effects, regardless of intent). These two vehicles have been chugging along side-by-side for years, ostensibly to the same destination, until today, when they suddenly turned on each other and charged.

Stop for a second and savor just how stupid her assertion is.

Who could make a career reporting on legal controversies and simply not get until 6/29/2009 that there is a fundamental contradiction in both theory and practice between abolishing disparate impact discrimination and abolishing disparate treatment discrimination?

Clearly, the Slate team largely thinks about civil rights not in terms of equal protection of the laws, but in terms of "Who? Whom?"

Still, doesn't that get boring after awhile?

My published articles are archived at iSteve.com -- Steve Sailer

Ricci and Unions

Something worth thinking about is the valuable role the firefighter's union in New Haven played in keeping the politicians from getting their hands all over the fire department. It was the union that had negotiated the compromise by which 60% of the weight would be given to a written test (i.e., objective and blind-graded), while the city got only 40% of the weight given to a subjective oral test, where minorities made up almost 2/3rds of the judges.

In general, in cities that have tipped toward minority political dominance, where conmen like Rev. Kimber are trying to get their hands on control of the jobs, unions sometimes provide a bulwark against race discrimination.

This provides a new/old perspective on the much-denounced subject of teachers' unions. It's widely believed that if only we got rid of teachers unions, then we'd have superstar teachers in every inner city classroom. Yet, history suggests that we might wind up with worse teachers because rising politicians would try to fire the old white teachers and give their jobs to co-ethnics.

That's exactly what happened in the late 1960s in the black Ocean Hill neighborhood in New York City, when the NY school board temporarily decentralized. Black politicians immediately fired huge numbers of white teachers (mostly Jewish) and hired blacks. Albert Shanker, the union boss of the United Federation of Teachers, went on the warpath. A huge brouhaha ensued and Shanker eventually mostly won and got the white teachers re-installed. In "Sleeper" (1973), Woody Allen is told by the people of the future that his age had been obliterated when "a man named Albert Shanker got hold of a nuclear warhead."

That teachers unions and their seniority rules keep white teachers in jobs in minority-run cities is one of those phenomenon that nobody talks about but is staring you right in the face.

My published articles are archived at iSteve.com -- Steve Sailer

UPDATED: Mr. Ritholtz has a question

In this afternoon's comments on my morning post offering to debate him on whether or not "Diversity was a major factor in the mortgage meltdown," investment adviser, blogger (The Big Picture), and author of Bailout Nation: How Greed and Easy Money Corrupted Wall Street and Shook the World Economy Barry Ritholtz asks:

Ritholtz said...

How about some evidence, hard data, facts?

Or are you more comfortable with nudges, hunches and squishy junk.

Show me some hard evidence!

Mr. Ritholtz apparently hasn't been paying attention here, but I also fear I've overloaded my regular readers so much on the topic of diversity and mortgages over the last couple of years that many would rather hear that I'm about to start a new 9-part series on track & field statistics (my all-time least popular obsession) than hear the same old same old about diversity and the mortgage meltdown.

So, I'll just link to a few highlights in chronological order. The data piles up as we get closer to the present, but it's helpful to understand how my thinking evolved from the point when I had no idea what I was talking about regarding mortgages.

Let's begin with my first blog post on the subject on August 12, 2007, a couple of weeks into the subprime collapse, where you can see my hesitancy to get involved in a topic where I didn't know anything, but I did remember a few things that almost everybody else seemed to have forgotten:

A trillion here, a trillion there, pretty soon we're talking about real money

I'm sure the private financial markets were quite capable of blowing up a big bubble by themselves in the eternal see-saw struggle between greed and fear, but this political pressure for lending to minorities with doubtful credit must have exacerbated the problem. About half of all mortgages for blacks and Hispanics are subprime, versus about one-sixth for whites.

A reader has sent me some links to articles from 5 to 9 years ago to show me I'm not hallucinating about what I remember. The first are from early in this decade about Fannie Mae's big plans for boosting mortgages for minorities. Now, I don't pretend to understand what Fannie Mae is (but does anybody?). It's some kind of quasi-governmental publicly-traded for-profit thinga-ma-bob, but Fannie Mae's past pronouncements do make interesting reading at present.

Straightforward tax-and-spend programs were out of favor in the 1990s, but lean-on-lenders for the benefit of your political constituents is always in season...

Next, there's my June 22, 2008 Taki's Magazine article, The Diversity Recession, where I finally began to pull my thoughts together into a semblance of a thesis about just how manifold was the involvement of diversity on the mortgage meltdown:

The Diversity Recession

Uncovering the roots of the disastrous home mortgage bubble that popped last year will keep economic historians busy for decades. Yet, one factor has so far been largely overlooked: the bipartisan social engineering crusade to drive up the rate of homeownership by handing out more mortgages to minorities.

More than a negligible amount of the blame for the mortgage meltdown can be traced back to multiculturalism: government-mandated affirmative-action lending, demographic change, illegal immigration, and the mind-numbing effects of political correctness.

The chickens have finally come home to roost...

In VDARE.com on September 28, 2008, I explained how one central element in the housing bubble, President Bush's message to federal regulators to loosen up on zero down mortgages and liar loans in the name of increasing minority homeownership by 5.5 million households at his October 15, 2002 White House Conference on Minority Homeownership, was tied to the Karl Rove's grand strategy of wooing Hispanic voters to the GOP:

... some of the conservative talking heads tended to put forward naïve, self-serving, or unpersuasive versions of this theory—such as that the banking crash wasn't the fault of greed in the financial industry, it was the result of the Democrats in Congress passing the anti-redlining Community Reinvestment Act in 1977.

The reality is that blame is very widely shared: among Democrats and Republicans, businesspeople and politicians, Congress and the Executive Branch, borrowers and lenders, and whites, blacks and Hispanics.

There's one man, however, who has so far escaped any blame. Few have realized something that turns out to have been staring us in the face all along: that the mortgage mess was, in sizable measure, an outgrowth of the primary political goal of the Bush Administration.

That man's name is Karl Rove.

And the primary political goal of President George W. Bush's political strategist: to bring Hispanics into the Republican Party.

As you'll recall, Rove's best-known tactic to appeal to Latino voters was repeatedly pushing "comprehensive immigration reform" (i.e., an amnesty for illegal immigrants).Rove, though, had other arrows in his quiver. One was a plan to turn Hispanics into Republicans by providing them with loose credit so they could become homeowners...

Then, "Tino" introduced me to the key source for numbers, the Federal Home Mortgage Disclosure Act database. The federal government carefully tracks how much minorities are getting in mortgage dollars (but not, of course, whether they are paying them back). I blogged on October 10, 2008:

Tino has added up all the subprime mortgage dollars for the entire disastrous 2004-2007 period. Among borrowers whose ethnicity is unambiguous, he comes up with $900 billion subprime dollars going to non-Hispanic whites, $887 billion to minorities. So, that's 50% of subprime dollars during the worst years of the Bubble went to minorities.

Someday, we'll get a count of defaulted dollars by race.

On January 21, 2009, I posted a graph I had made up from data of a Boston Fed study of every subprime default in Massachusetts showing that Non-Asian Minority subprime default rates average about twice the white rate over the years.

So, in Massachusetts, the Non-Asian Minority foreclosure rate on subprime mortgages was about twice the white rate. That didn't change too much over the years, but the proportion of mortgages that were subprime and the proportion of mortgage dollars going to minorities changed radically in the Bush years, contributing sizably to the disastrous mortgage meltdown that began in 2007 and triggered the more general crash of 2008.

If that two to one minority to white foreclosure ratio seen in Massachusetts holds true nationally, where minorities took out half the subprime dollars, then minorities would account for two-thirds of all defaulted subprime dollars.

However, Asians probably have a lower default rate. On the other hand, they largely stayed away from subprime mortgages, so it's not a big issue. So, it's likely that minorities accounted for at least 60% of the subprime dollars defaulted.

In VDARE.com on February 1, 2009, I finally got around to focusing on the Community Reinvestment Act, using Washington Mutual, which had pledged $375 billion in CRA lending as a case study of how the CRA subtly changed the culture of the lending business.

Two weeks later, I graphed data from the National Community Reinvestment Coalition showing over $4 trillion in CRA pledges by covered institions between 1996 and 2005, with $1.6 trillion pledged in 2004 alone.

On May 17, 2009 in VDARE.com, I focused on HMDA data on lending in California, where a great majority of defaulted dollars are found. I found that according to federal data, minorities got 77% of subprime dollars loaned out for home purchases in California in 2006, the worst year for subsequent defaults. Within California's 20 biggest metropolitan areas, there was a 0.89 correlation between minority share of subprime dollars in 2006 and default rates in Q1-2009.

And in VDARE.com on June 22, 2009, I profiled the largest lender not officially covered by the CRA -- Angelo Mozilo of Countrywide. And showed that Countrywide had been told by the Clinton Administration that they would be brought under the CRA if they didn't act like they were under the CRA. But, Mozilo quickly became a true believer, which accounts for Countrywide's $1 trillion dollar CRA-style pledge in early 2005.

My published articles are archived at iSteve.com -- Steve Sailer

You can always count on Emily Bazelon ...

to be both boring and revealing at the same time. In Slate today, Bazelon writes:

Lead plaintiff Frank Ricci, on the other hand, framed his victory in terms that evoke America, the land of opportunity: "If you work hard, you can succeed in America, and all of these guys worked hard," he said on the steps of New Haven's federal courthouse. True. But only part of a larger truth. And in historical terms, a strange sort of rhetoric to hear a white person laying claim to.

Read that twice.

(As a commenter suggested, is it really strange that a guy named Frank Ricci is laying claim to the central message of the Collected Works of Sylvester Stallone?)

"Who? Whom?" That's all the mainstream media thinks about.

My published articles are archived at iSteve.com -- Steve Sailer

Justice Alito delivers the inside story on how DeStefano did Ricci down

The concurring opinion in the Ricci v. DeStefano case (won by Ricci on a 5-4 vote) by Justice Sam Alito, with Thomas and Scalia supporting, attacks the trustworthiness of Ginsburg's retelling of the Ricci story in her dissent.

The funny thing is how much juicier Alito's Supreme Court opinion is than that 5000 word article by Emily Bazelon in Slate that I dismantled on today's VDARE. The Slate article is full of disingenuous Pontius Pilateisms like:

No one we talked to can really imagine a way to resolve fairly who will get the promotions—which have been frozen now for six years. In this city at this moment, it's hard to imagine what fair would possibly look like.

Well, I know the names of five guys in Washington who did a pretty good job of imagining what fair could possibly look like. For the New Haven 20, after five and a half years of injustice, fair finally looks like this:

The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Alito first goes thru some judicial throat-clearing, which, by Supreme Court standards, is pretty much the equivalent of pointing at Madame Justice Ginsburg and chanting Liar, Liar, Pants on Fire:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’s recitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent were accepted, affirmance of the decision below is untenable. ...

Now, here's the fun part of Alito's concurrence that demonstrates once again how what in theory is the Sacred Cause of Diversity turns out in practice to be just Old-School Tammany Hall Skullduggery. (Once again we see that political correctness, as in the Slate article, is just plain boring. The truth is always interesting because you can see the network of cause and effect connections. But when you're trying to pull the wool over everybody's eyes, all you can see is gray fuzz.)

As initially described by the dissent, ... the process by which the City reached the decision not to accept the test results was open, honest, serious, and deliberative. But even the District Court admitted that “a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” ...

This admission finds ample support in the record. Reverend Boise Kimber, to whom the District Court referred, is a politically powerful New Haven pastor and a self-professed “‘kingmaker.’” ... On one occasion, “[i]n front of TV cameras, he threatened a race riot during the murder trial of the black man arrested for killing white Yalie Christian Prince. He continues to call whites racist if they question his actions.” ...

Reverend Kimber’s personal ties with seven-term New Haven Mayor John DeStefano (Mayor) stretch back more than a decade. In 1996, for example, Mayor DeStefano testified for Rev. Kimber as a character witness when Rev. Kimber—then the manager of a funeral home—was prosecuted and convicted for stealing prepaid funeral expenses from an elderly woman and then lying about the matter under oath. ... “Reverend Kimber has played a leadership role in all of Mayor DeStefano’s political campaigns, [and] is considered a valuable political supporter and vote-getter.” ... According to theMayor’s former campaign manager (who is currently his executive assistant), Rev. Kimber is an invaluable political asset because “[h]e’s very good at organizing people and putting together field operations, as a result of his ties to labor, his prominence in the religious community and his long-standing commitment to roots.”...

In 2002, the Mayor picked Rev. Kimber to serve as the Chairman of the New Haven Board of Fire Commissioners (BFC), “despite the fact that he had no experience in the profession, fire administration, [or] municipal management.” ... In that capacity, Rev. Kimber told firefighters that certain new recruits would not be hired because “‘they just have too many vowels in their name[s].’”... After protests about this comment, Rev. Kimber stepped down as chairman of the BFC, ... but he remained on the BFC and retained “a direct line to the mayor,”...

Almost immediately after the test results were revealed in “early January” 2004, Rev. Kimber called the City’s Chief Administrative Officer, Karen Dubois-Walton, who “acts ‘on behalf of the Mayor.’” ... Dubois-Walton and Rev. Kimber met privately in her office because he wanted “to express his opinion” about the test results and “to have some influence” over the City’s response. ... As discussed in further detail below, Rev. Kimber adamantly opposed certification of the test results—a fact that he or someone in the Mayor’s office eventually conveyed to the Mayor....

On January 12, 2004, Tina Burgett (the director of the City’s Department of Human Resources) sent an e-mail toDubois-Walton to coordinate the City’s response to the test results. Burgett wanted to clarify that the City’s executive officials would meet “sans the Chief, and that once we had a better fix on the next steps we would meet with theMayor (possibly) and then the two Chiefs.” ... The “two Chiefs” are Fire Chief William Grant (who is white) and Assistant Fire Chief Ronald Dumas (who is African-American). Both chiefs believed that the test results should be certified. ... Petitioners allege, and the record suggests, that the Mayor and his staff colluded “sans the Chief[s]” because “the defendants did not want Grant’s or Dumas’ views to be publicly known; accordingly both men were prevented by the Mayor and his staff from making any statements regard-ing the matter.” ...

The next day, on January 13, 2004, Chad Legel, who had designed the tests, flew from Chicago to New Haven to meet with Dubois-Walton, Burgett, and Thomas Ude, the City’s corporate counsel. ... “Legel outlined the merits of the examination and why city officials should be confident in the validity of the results.”... But according to Legel, Dubois-Walton was “argumentative”and apparently had already made up her mind that the tests were “‘discriminatory.’” ... Again according to Legel, “[a] theme” of the meeting was “the political and racial overtones of what was going on in the City.” ... “Legel came away from the January 13, 2004 meeting with the impression that defendants were already leaning toward discarding the examination results.” ...

On January 22, 2004, the Civil Service Board (CSB or Board) convened its first public meeting. Almost immediately, Rev. Kimber began to exert political pressure on the CSB. He began a loud, minutes-long outburst that required the CSB Chairman to shout him down and hold him out of order three times. ... Reverend Kimber protested the public meeting, arguing that he and the other fire commissioners should first be allowed to meet with the CSB in private....

Four days after the CSB’s first meeting, Mayor DeStefano’s executive aide sent an e-mail to Dubois-Walton, Burgett, and Ude. ... The message clearly indicated that the Mayor had made up his mind to oppose certification of the test results (but nevertheless wanted to conceal that fact from the public): “I wanted to make sure we are all on the same pagefor this meeting tomorrow. . . . [L]et’s remember, that these folks are not against certification yet. So we can’t go in and tell them that is our position; we have to deliberate and arrive there as the fairest and most cogent outcome.” ...

On February 5, 2004, the CSB convened its second public meeting. Reverend Kimber again testified and threatened the CSB with political recriminations if they voted to certify the test results:

“I look at this [Board] tonight. I look at three whites
and one Hispanic and no blacks. . . . I would hope that
you would not put yourself in this type of position, a
political ramification that may come back upon you as
you sit on this [Board] and decide the future of a
department and the future of those who are being
promoted. ... “(APPLAUSE).” ...

One of the CSB members “t[ook] great offense” because he believed that Rev. Kimber “consider[ed] [him] a bigot because [his] face is white.” ... The offended CSB member eventually voted not to certify the test results. ...

One of Rev. Kimber’s “friends and allies,” Lieutenant Gary Tinney, also exacerbated racial tensions before the CSB. ... After some firefighters applauded in support of certifying the test results, “Lt. Tinney ex-claimed, ‘Listen to the Klansmen behind us.’”...

Tinney also has strong ties to the Mayor’s office. ... After learning that he had not scored well enough on the captain’s exam to earn a promotion, Tinney called Dubois-Walton and arranged a meeting in her office. Tinney alleged that the white firefighters had cheated on their exams—an accusation that Dubois-Walton conveyed to the Board without first conducting an investigation into its veracity. ... The allegation turned out to be baseless. ...

Dubois-Walton never retracted the cheating allegation, but she and other executive officials testified several times before the CSB. ...

As part of its effort to deflect attention from the specifics of the test, the City relied heavily on the testimony of Dr. Christopher Hornick, who is one of Chad Legel’s competitors in the test-development business. Hornick never “stud[ied] the test [that Legel developed] at length or in detail,” ... but Hornick did review and rely upon literature sent to him by Burgett to criticize Legel’s test. For example, Hornick “noted in the literature that [Burgett] sent that the test was not customized to the New Haven Fire Department.” ... The Chairman of the CSB immediately corrected Hornick. ... (“Actually, it was, Dr. Hornick”). ... Although Hornick again admitted that he had no knowledge about the actual test that Legel had developed and that the City had administered ... the City repeatedly relied upon Hornick as a testing “guru” and, in the CSB Chairman’s words, “the City ke[pt]quoting him as a person that we should rely upon more than anybody else [to conclude that there] is a better way—a better mousetrap.” ... Dubois-Walton later admitted that the City rewarded Hornick for his testimony by hiring him to develop and administer an alternative test.

In a footnote, Alito points out:

The City’s heavy reliance on Hornick’s testimony makes the two [fire] chiefs’ silence all the more striking. ... While Hornick knew little or nothing about the tests he criticized, the two chiefs were involved “during the lengthy process that led to the devising of the administration of these exams,” ... including “collaborating with City officials on the extensive job analyses that were done,” “selection of the oral panelists,” and selection of “the proper content and subject matter of the exams" ...

Alito continues:

At some point prior to the CSB’s public meeting on March 18, 2004, the Mayor decided to use his executive authority to disregard the test results—even if the CSB ultimately voted to certify them. ... Accordingly, on the evening of March 17th, Dubois-Walton sent an e-mail to the Mayor, the Mayor’s executive assistant, Burgett, and attorney Ude, attaching two alternative press releases. Id., at 457a. The first would be issued if the CSB voted not to certify the test results; the second would be issued (and would explain the Mayor’s invocation of his executive authority) if the CSB voted to certify the test results. ...

Soon after the CSB voted against certification, Mayor DeStefano appeared at a dinner event and “took credit for the scu[tt]ling of the examination results.”

In practice, "Disparate Impact" turns out to be just a fancy name for the kind of 19th Century corruption that Civil Service testing was instituted to abolish in the first place.

My published articles are archived at iSteve.com -- Steve Sailer

Supreme Court rules 5-4 for Frank Ricci / against Sonia Sotomayor

Swing Justice Anthony Kennedy's majority opinion is fairly narrow, yet broader and braver than my prediction that he'd merely send it back down for retrial on the facts. It's a sizable defeat for the Obama Administration and their Supreme Court nominee.

Perhaps the most striking element of Kennedy's majority opinion is that he never portrays this as the hard, complicated case as the media have been telling everybody. The Supreme Court says: Look at the facts and you'll see this case is a slam dunk.

In effect, Kennedy's ruling implies that what happened to Frank Ricci was such a stinkbomb of blatant disparate treatment on the basis of race that the Supremes don't have to deal all that much yet with the fundamental issue that (as Scalia notes in his concurring opinion) banning Disparate Impact and banning Disparate Treatment are logically and empirically contradictory. Still, the majority casts a jaundiced eye on how much credence they'll give the Disparate Impact talisman that mere statistical disparity between races is prima facie evidence of illegal discrimination.

What we need now is a case that directly challenges the EEOC's Four-Fifths Rule. It's on rockier ground today than yesterday.

Kennedy says, in effect, you just can't do what Mayor DeStefano did to Frank Ricci -- yank the rug out from under him after he took the test because you didn't like the racial results -- at least not without a "strong-basis-in-evidence" that you'd lose a minority plaintiff's disparate impact discrimination lawsuit. And if the facts resemble the facts in New Haven, Kennedy announces, then this here Supreme Court says you won't lose that lawsuit; so don't throw Ricci's test results out. Capisce? (Warning: This here Supreme Court likely to be replaced by a more Obamaesque Supreme Court in not-too-distant future.)

As commenters on this site, have pointed out, the real question is why this modest and perfectly reasonable response to an egregious injustice was merely 5-4 rather than 9-0?

AP reports:

The Supreme Court has ruled that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities.

"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 said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them." [Madame Justice is being disingenuous -- New Haven has promoted "acting" fire captains and lieutenants of the politically preferred races.] Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

The Supreme Court ruled (my apologies for the semi-illegibility of the following -- the Supreme Court doesn't seem to know much about HTML yet -- UPDATE - I've cleaned the text up a lot, but not completely):

All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision-making is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. ...

Thus, the Court adopts the strong-basis-in-evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. ...

(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. ...

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, ... and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. ...

That is because the City could be liable for disparate-impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. ... Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. ...

(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. ...

(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt. Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then-open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions.

Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results ...

Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basis-in-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. ...

(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. ...

... reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

Reading through Kennedy's majority opinion, it appears to be a slapdown of Sotomayor's Second Circuit Court of Appeals, combined with some wishy-washiness to not rule out Disparate Impact in less obviously egregious situations. Kennedy opines:

Our analysis begins with this premise: The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the exami-nation results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified.” ... (respondents’ “own arguments . . . show that the City’s reasons for advocating non-certification were related to the racial distribution of the results”). Without some other justification, this express, race-based decision making violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. ...

The District Court did not adhere to this principle, however. It held that respondents’ “motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent.”

And the Government [i.e., the Obama Administration] makes a similar argument in this Court. It contends that the “structure of Title VII belies any claim that an employer’s intent to comply with Title VII’s disparate-impact provisions constitutes prohibited discrimination on the basis of race.” ... But both of those statements turn upon the City’s objective—avoiding disparate-impact liability—while ignoring the City’s conduct in the name of reaching that objective. Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action. ...

But Kennedy doesn't want to abolish "voluntary" quotas, so he shoots down Ricci's attorney's ambitious claim:

Forbidding employers to act unless they know, with certainty, that a practice violates the disparate-impact provision would bring compliance efforts to a near standstill. Even in the limited situations when this restricted standard could be met, employers likely would hesitate before taking voluntary action for fear of later being proven wrong in the course of litigation and then held to account for disparate treatment.

But Kennedy realizes Disparate Impact leads to de facto quotas and he doesn't want that or at least he doesn't want de facto quotas to be too obvious:

Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. A minimal standard could cause employers to discard the results of lawful and beneficial promotional examinations even where there is little if any evidence of disparate-impact discrimination. That would amount to a de facto quota system, in which a “focus on statistics . . . could put undue pressure on employers to adopt inappropriate prophylactic measures.” ... Even worse, an employer could discard test results (or other employment practices) with the intent of obtaining the employer’s preferred racial balance. That operational principle could not be justified, for Title VII is express in disclaiming any interpretation of its requirements as calling for outright racial balancing. ... The purpose of Title VII “is to promote hiring on the basis of job qualifications, rather than on the basis of race or color.”

So, what magic formula does Kennedy come up with? I'm still reading, so I'll let you know...

All right, Kennedy's formula for balancing the bans on disparate treatment and disparate impact is called "strong-basis-in-evidence:"

The same interests are at work in the interplay between the disparate-treatment and disparate-impact provisions of Title VII. Congress has imposed liability on employers for unintentional discrimination in order to rid the work-place of “practices that are fair in form, but discriminatory in operation.” ... But it has also prohibited employers from taking adverse employment actions “because of” race. ...

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. ... And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In other words, employers can't pull the rug out from under employees after they've taken the test, as happened to Ricci et al, unless the employer has a "strong-basis-in-evidence" for believing the they would lose a disparate impact lawsuit, which, according to the Supreme Court, New Haven did not.

For the foregoing reasons, we adopt the strong-basis-in-evidence standard as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.

The word "any" in that sentence sounds optimistic: in general, fighting disparate impact against NAMs and fighting disparate treatment against whites are inextricably opposite actions.

Kennedy spends some time explaining what his decision doesn't do:

Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.

Interestingly, Kennedy treats the EEOC's Four-Fifth's Rule as merely "a rule of thumb for the courts."

Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made.

But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed ..., and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. ...

I can see how Ginsburg could be sore about this. Kennedy is being ingenuous by reading the 1991 Civil Rights Act naively. After all, the Democratic majority that passed the 1991 Civil Rights Act enshrining Griggs' disparate impact theory may have "declaimed" racial preferences in public, but the whole point of the legislation was to provide racial preferences by tipping the balance between Type I and Type II errors in favor of legally preferred groups.

Kennedy goes on:

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, ... and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. ... We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.

... There is no genuine dispute that the examinations were job-related and consistent with business necessity. The City’s assertions to the contrary are “blatantly contradicted by the record.” ...

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Petitioners are entitled to summary judgment on their Title VII claim, and we therefore need not decide the underlying constitutional question. The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

In other words, Judge Sotomayor, Welcome to the Big Leagues. Sorry about throwing that 98 mph fastball right under your chin. Too bad that your shiny new uniform got all covered with dirt when you hit the deck.

Justice Scalia points out the bigger issue in a concurring opinion:

JUSTICE SCALIA, concurring.

I join the Court’s opinion in full, but write separately too bserve that its resolution of this dispute merely post-pones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. ...

The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. ... But if the Federal Government is prohibited from discriminating on the basis of race, ... then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal—discriminate on the basis of race. ... As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decision making is, as the Court explains, discriminatory....

To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. ...

The Court’s resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

My suggestion for how to make peace between Disparate Impact and Equal Protection of the Laws:

Ecrasez I'infame!

So, we'll see have to wait and see just how spineless the GOP Senators really are when they get a chance to go after Sotomayor over Ricci v. DeStefano.

Once again, allow me to recommend that the GOP Senators in the Sotomayor hearings call Mayor DeStefano as a witness to beat up on him over the injustice he personally did to Frank Ricci, an injustice upheld, fortunately only temporarily, by Judge Sotomayor. If they are too sensitive to ask tough questions of the Wise Latina, they can ask them of the not so wise white guy.

My published articles are archived at iSteve.com -- Steve Sailer

Blusterin' Barry

Blogger Barry Ritholtz blusters:

I’ve run out of patience with tired memes and discredited claims by fools and partisan.

The rhetoric of those pushing nonsense on the public in an attempt to confuse rather than illuminate — the phrase is “agnotology” – only serves to aid the lobbyists working on behalf of the Banks and Investment houses to maintain the status quo.

All is well, nothing to see here, move along.

Well, its time to put up or shut up: I hereby challenge any of those who believe the CRA [Community Reinvestment Act] is at prime fault in the housing boom and collapse, and economic morass we are in to a debate. The question for debate: “Is the CRA significantly to blame for the credit crisis?”

A mutually agreed upon time and place, outcome determined by a fair jury, for any dollar amount between $10,000 up to $100,000 dollars (i.e., for more than just bragging rights).

The nonsense rhetoric blogged about has no cost to those pushing these discredited memes — but interferes in the societal attempts to understand how these problems arose and then how to fix them. Perhaps this will help clarify the issue by forcing those with partisan agendas to stand behind their claims.

Which of the many “CRA was a major factor” proponents have the courage of their conviction to step forward?

I would certainly debate him on the topic "Diversity was a major factor in the mortgage meltdown."

The causes are much bigger than the Community Redevelopment Act. I've always argued that George W. Bush's drive to add 5.5 million minority homeowners, as enunciated at the October 15, 2002 White House Conference on Increasing Minority Homeownership, by abolishing down payment requirements and by allowing "low doc" mortages (a.k.a., liar loans) was more directly responsible. But they are obviously both part of the same overall Diversity mindset.

Heck, I'd debate him for free.

Right here, Barry.

My published articles are archived at iSteve.com -- Steve Sailer

Gown v. Town in New Haven

Here's a teaser from my new VDARE.com column on Monday's upcoming Ricci Supreme Court decision:

Last week, Slate ran a 5000 word article about the New Haven Fire Department, The Ladder, by senior editor Emily Bazelon and intern Nicole Allan. The article turns into an inadvertent reductio ad absurdum of the Sotomayorian conventional wisdom.

Bazelon’s ultimate objection to New Haven’s discarded 2003 testing process is that it wasn’t subjective and arbitrary enough to promote as many minorities as she’s like. She ends her article with a ringing call for a more random selection method that will produce less knowledgeable fire captains and lieutenants:

"The city could come up with a measure for who is qualified for the promotions, rather than who is somehow best. And then it could choose from that pool by lottery."

Bazelon apparently doesn’t know that lotteries are exactly what cities such as Chicago are already doing with the results of firefighter tests, in an attempt to comply with the Equal Employment Opportunity Commission’s "Four-Fifths Rule". This regulation puts the burden of proof in discrimination cases on employers when blacks aren’t hired or promoted at least 80 percent as often as whites. ...

In 2006, the new Chicago hiring test passed all but the bottom 15 percent of the folks who walked in off the street wanting jobs as firefighters. And then, just as Bazelon recommends for New Haven, the Chicago city government picked "randomly" from the top 85 percent—the crème de la crème of the Disparate Impact Age.

Why did Chicago have to go so low? ...

Not until you cut the IQ minimum down to 74 would the EEOC be truly happy: 77 percent of blacks and 96 percent of whites pass. Exactly Four-Fifths!

But, seriously, what’s the point of even giving a test so easy that 96 percent of white people can pass? White people aren’t so smart that somebody at the 5th percentile of the white bell curve is going to make an adequate firefighter.

Bazelon’s lotteries are an incredibly stupid idea because cities end up hiring incredibly stupid people of all races. ...

Bazelon is much exercised by the racial injustice inherent in white firefighters knowing more about how to do their jobs. She says:

"Is this the best way to choose the leaders of a municipal fire department—the best memorizers win?"

Worse, the white firemen are unjustly learning more about fire fighting because they care more about fighting fires. Bazelon continues:

"As one Hispanic quoted anonymously by the New Haven Independent put it, the test favored ‘fire buffs’—guys who read fire-suppression manuals on their downtime …"

The white firemen also are advantaged, Bazelon says, because they tend

"… to come from families in which firefighting is a legacy. … Frank Ricci has an uncle and two brothers who are firefighters. He studied fire science at college."

I looked up "Emily Bazelon" on Wikipedia (accessed 16.59 ET, June 28 2009) and discovered that while she’s very bright, she’s not exactly the most self-aware person. When read in light of her biography, her Slate article about privileged white firemen becomes an amusing epitome of unthinking Gown v. Town prejudice in New Haven.

Wikipedia tells us:

"[Bazelon] graduated from Yale College in 1993 and from Yale Law School in 2000. ... Bazelon is a Senior Research Scholar in Law and Truman Capote Fellow for Creative Writing and Law at Yale Law School."

You might think that Bazelon would be better qualified to offer advice on admissions and promotions to the LSAT-obsessed Yale Law School rather than to the New Haven Fire Department. By Bazelon’s logic, Yale Law School should hire by lottery. Perhaps—just to get the ball rolling—she could publicly offer to give up her position at Yale Law School to some randomly chosen person?

Moreover, this legal writer’s concern about the advantages Frank Ricci garnered by being related to firemen seems a little ironic in light of this Wikipedia line:

"She is the granddaughter of Judge David L. Bazelon and cousin of feminist Betty Friedan."

This legal journalist’s grandfather, David Bazelon, was the most powerful judge in America not on the Supreme Court when he served from 1962-1978 as Chief Judge of the U.S. Court of Appeals for the District of Columbia.

Needless to say, I’m not implying that Emily Bazelon’s career as a writer on legal affairs has depended upon nepotism.

Rather, I’m pointing out that a family developing and passing on expertise in a particular field—whether the Riccis in firefighting or the Bazelons-Friedans in law and punditry—is a good thing for society in general, because expertise is always in short supply.

Now tell me: why should we have one standard of fairness for Frank Ricci and another for Emily Bazelon?

Read the whole thing here.

My published articles are archived at iSteve.com -- Steve Sailer