Supremes Fanning the Firefighter Flames

It may be one of the dumber Supreme Court rationales in quite some time. Writing for the 5-4 majority which ruled in favor of New Haven’s white firefighters and effectively against anti-discrimination in employment, Justice Anthony Kennedy said: “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.”

Is he kidding? The “fear of litigation” is possibly the strongest motivation there is when any individual or institution decides on a course of action. Why else are the nation’s doctors braying, after all these decades, over the malpractice lawsuits that have forced them into P-Y-A medical decisions? Why else have corporations funneled so much money toward politicians to try and achieve “tort reform,” which really means severely limiting someone’s chances of righting some wrong in court. Right you are: It’s the “fear of litigation” that Justice Kennedy so cavalierly dismisses.

Kennedy clearly revels in his role as the SCOTUS Swingman, the one who can break the deadlock between the Supremes’ two camps. In this particular pick-your-poison case, he sided with the forces who contend that affirmative action has simply replaced discrimination with reverse discrimination. On the losing side were those — among them Ruth Bader Ginsburg, only the second female among the justices — who argue that there needs to be some numerical standard to gauge whether progress toward diversity is being made.

In the middle is the next high court-wannabee, Sonia Sotomayor. Not only is it widely believed that her Puerto Rican roots contributed to her nomination by President Obama, but she has added to her own controversy with her speeches lauding the superior wisdom of a “wise Latina."

Stirring the pot even more, the majority, in deciding the way it did today, ruled against how she had as a judge on the appeals court. So much will be made of the fact her decision was repudiated, at least by her opponents.

Her supporters will push right back by insisting the Sotomayor must be confirmed to fill the void left by her unlikely soulmate David Souter. Whatever other effect it has, the firefighters ruling will certainly add sparks to the Senate hearings scheduled to begin in two weeks.

As for the debate on whether it is a step toward fairness in the workplace, the answer is no. It would have been the same if it had gone the other way. Sometimes, we only have a choice between bad answers. In fact, make that almost all the time. The only one who can always count on benefiting are the attorneys, who now have more billable hours they can earn with new litigation.

Visit Mr. Franken's website at www.bobfranken.tv.