Responding to Justice Alito's allegation that the City's decision to throw out the test was based on the political calculations of New Haven's mayor in order to avoid a backlash among New Haven's black voters, Justice Ginsburg writes:
Most of the allegations JUSTICE ALITO repeats are drawn from petitioners' statement of facts they deem undisputed, a statement displaying an adversarial zeal not uncommonly found in such presentations. What cannot credibly be denied, however, is that the decision against certification of the exams was made neither by Kimber nor by the mayor and his staff. The relevant decision was made by the CSB, an unelected, politically insulated body. It is striking that JUSTICE ALITO’s concur-rence says hardly a word about the CSB itself, perhaps because there is scant evidence that its motivation was anything other than to comply with Title VII’s disparate-impact provision. Notably, petitioners did not even seek to take depositions of the two commissioners who voted against certification. Both submitted uncontested affida-vits declaring unequivocally that their votes were “based solely on [their] good faith belief that certification” would have discriminated against minority candidates in viola-tion of federal law.
More on this later. But obviously I think that's a pretty strong rebuke to the notion that DeStefano was acting out of political concerns, although he would argue that the mayor's influence goes against the notion that the CSB was "politically insulated." Ginsburg, however, adds that "Kimber and others no doubt used strong words to urge the CSB not to certify the exam results, but the CSB received “pressure” from supporters of certification as well as opponents."
The outsize Byron York-like concern with politicians "pandering" for black votes (because conservatives are completely uninterested in the interests of their constituencies) though, is just the kind of analysis one would expect from a partisan Republican. Just not from a judge.
-- A. Serwer
