While the Supreme Court decision in favor of the discriminated firefighters in the Ricci case may seem potentially damaging to Sotomayor, it really won’t change much with her confirmation hearing. If it comes up, she will simply cite the dissenting opinion of the four justices as being on her side, and since it was a 5:4 decision, it’s really not that big of a deal. Nevertheless, it should be a big deal if you read the dissenting opinion.

Justice Ginsburg lead the dissenting opinion, which basically stated that firefighters 40+ years ago were hired and promoted largely on the basis of race, so discriminating against white and Hispanic firefighters today is somehow justified. Ginsburg and the other dissenting justices apparently believe that racial discrimination is still so prevalent as to require injustice to remedy. The injustice of denying rightly earned promotions to those who passed the examination because no blacks scored high enough. All this despite the fact there are blacks in every position of power imaginable in this country, including the presidency. But somehow the realities of today do not make an impact on their thinking, and so they perpetuate the very injustices they claim to be against.

The dissent was wrong on a number of other points, not the least of which is the idea that the same objective test, given to everyone with enough time to study, was somehow racially skewed: “substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.” This is nonsense. They never cite what “better” tests are available, and how those tests are allegedly “better,” other than they produce outcomes preferred by people like Ginsburg.

As Charles Krauthammer points out:

The evidence was irrefutable that the tests were put together in a conscientious, race-neutral way. Not only were minority firefighters over-sampled in devising the questions. The designers established nine oral exam boards, each a three-person panel, each consisting of precisely one white, one black and one Hispanic. (Such is the extreme race consciousness that the Civil Rights Act, of all things, has brought upon us.) Nor will it do, as New Haven tried, to throw out a test on the pretext that another test with less racial impact might theoretically exist out there in the ether.

It’s hard to imagine how an exam in the profession of firefighting can be constructed in such a way as to intentionally produce racially “skewed” results.

Ginsburg made the unusual statement that the white firefighters “had no vested right to promotion.” No one was making such an argument about a “vested” right. But the firefighters do have a right to be treated fairly by the law, and not be denied promotions because of their race.

Of course no one has a vested right to promotion. Isn’t that why they gave those tests in the first place? Isn’t that why for the last, oh, 125 years we have been using objective civil service exams to allocate government jobs not on the basis of right — or patronage or favoritism or racially discriminatory advantage — but on the basis of merit and job-related skill?

Justice Ginsburg apparently cannot understand this concept and only sees equality if it exists in outcomes, rather than opportunities. The mere presence of disparities is prima facie evidence of racism to some people. Never do they examine whether or not the firefighters put the same effort into studying and preparation; all activities that affect test results are ignored.

This bizarre practice of discriminating against certain groups in order to somehow relieve the discrimination of the past has been described as revenge politics. But the problem with punishing groups for past misdeeds is that it destroys the whole moral argument underlying their position. If it was wrong in the past to discriminate against someone solely based on race, then why is it okay to do the very same thing in the present? America is supposed to be about individuals receiving equal treatment before the law, not racial groups using the law to attack other groups.

The Supreme Court narrowly reached a good decision in the Ricci case. Whether the dissenters acknowledge it or not, the last thing this country needs is a continuation of the racial discrimination of the past, embodied in the philosophy of justices like Ginsburg and judges like Sotomayor.