Tuesday, June 30, 2009
BOTH SOTOMAYOR AND SUPREMES RIGHT
Both Judge Sotomayor of the appellate court and the majority of the U.S. Supreme Court may be right, or at least partially so, in their rulings on the New Haven firefighters case. Each was working within a different legal context.
Readers will recall that the case involved eight white firefighters passing a promotion exam and no minority personnel passing. The city then threw out the test results as a criterion for promotion and promoted nobody. They did so in fear of a lawsuit by non-whites based upon previous high court decisions ruling that no test or criterion may be employed that has a disparate effect in limiting opportunities for racial minorities.
When the firefighters appealed, they did not question the validity of the test as a measure of firefighters’ knowledge and skills. Instead they accepted its validity and claimed their eight parties to the suit were discriminated against purely because of their race. So, quite significantly, that was the issue.
When the three judge appellate court, including Judge Sotomayor, considered the case, the city’s case for disregarding test scores and not promoting whites was based simply on the issue that applying the test results would have had a disparate effect on minority candidates for promotion and continue an under-representation of minorities in the upper echelons of the firefighters department.
The appellate court ruled correctly and in compliance with prior Supreme Court decisions. They followed precedent as required by legal principles.
Lower courts are pretty much bound by prior decisions of the Supreme Court. Past decisions are considered to be the last previous word on the proper interpretation of the statutes and the Constitution by the Supreme Court, which is the only legal authority that has the final say.
On the other hand, the Supreme Court is not necessarily bound by previous decisions of past editions of the Court. The Supreme Court will indeed normally follow its own precedents, but it is not bound to do so. The Court will, on occasion, take a new and independent look at a legal issue and come down with a different ruling.
This was the case in the firefighter’s law suit. The Supreme Court had previously ruled against admissions, hiring, and promotion decisions based upon criteria which, when applied, had a disparate effect on minorities. This became the rule of law.
The town council of the city of New Haven, with good legal advice, foresaw a discrimination lawsuit by minority firefighters, none of whom had passed the promotion test while eight whites had passed. They correctly determined this to be a losing case for them under prior Supreme Court rulings if all promoted were white and none a minority. Based upon high court precedents, they were correct.
The Appellate Court and Judge Sotomayor sided with that same legal precedent, as did two others of her court and the minority of four against five on the Supreme Court.
The Court majority chose to set a newer precedent. Basically, that ruling is that the city of New Haven could not deny promotion to individual members of the group of eight passing the test based upon racial protections for the minority members. In other words, the constitutional right of equal protection of the law granted under the fourteenth amendment could not be subjugated to the good of a minority, i.e. discrimination against individuals in the majority in order to improve minority representation is no longer acceptable.
This is a landmark decision. It is one that many have had cause to wonder that it took so long. Individual rights are not to be sacrificed to correct past discrimination against a group. We will differ from one another in how we view this decision, but there is no doubt that it will take a significant place in legal precedent.
Strangely enough, another highly relevant issue was raised by nobody in the court system other than Justice Ginsberg in her minority opinion. There she raised the question: Was this paper-pencil test really a valid measure of leadership potential for firefighters? But, as we say, that is another matter.
Dr. Edwin E. Vineyard, AKA The Militant Moderate
Readers will recall that the case involved eight white firefighters passing a promotion exam and no minority personnel passing. The city then threw out the test results as a criterion for promotion and promoted nobody. They did so in fear of a lawsuit by non-whites based upon previous high court decisions ruling that no test or criterion may be employed that has a disparate effect in limiting opportunities for racial minorities.
When the firefighters appealed, they did not question the validity of the test as a measure of firefighters’ knowledge and skills. Instead they accepted its validity and claimed their eight parties to the suit were discriminated against purely because of their race. So, quite significantly, that was the issue.
When the three judge appellate court, including Judge Sotomayor, considered the case, the city’s case for disregarding test scores and not promoting whites was based simply on the issue that applying the test results would have had a disparate effect on minority candidates for promotion and continue an under-representation of minorities in the upper echelons of the firefighters department.
The appellate court ruled correctly and in compliance with prior Supreme Court decisions. They followed precedent as required by legal principles.
Lower courts are pretty much bound by prior decisions of the Supreme Court. Past decisions are considered to be the last previous word on the proper interpretation of the statutes and the Constitution by the Supreme Court, which is the only legal authority that has the final say.
On the other hand, the Supreme Court is not necessarily bound by previous decisions of past editions of the Court. The Supreme Court will indeed normally follow its own precedents, but it is not bound to do so. The Court will, on occasion, take a new and independent look at a legal issue and come down with a different ruling.
This was the case in the firefighter’s law suit. The Supreme Court had previously ruled against admissions, hiring, and promotion decisions based upon criteria which, when applied, had a disparate effect on minorities. This became the rule of law.
The town council of the city of New Haven, with good legal advice, foresaw a discrimination lawsuit by minority firefighters, none of whom had passed the promotion test while eight whites had passed. They correctly determined this to be a losing case for them under prior Supreme Court rulings if all promoted were white and none a minority. Based upon high court precedents, they were correct.
The Appellate Court and Judge Sotomayor sided with that same legal precedent, as did two others of her court and the minority of four against five on the Supreme Court.
The Court majority chose to set a newer precedent. Basically, that ruling is that the city of New Haven could not deny promotion to individual members of the group of eight passing the test based upon racial protections for the minority members. In other words, the constitutional right of equal protection of the law granted under the fourteenth amendment could not be subjugated to the good of a minority, i.e. discrimination against individuals in the majority in order to improve minority representation is no longer acceptable.
This is a landmark decision. It is one that many have had cause to wonder that it took so long. Individual rights are not to be sacrificed to correct past discrimination against a group. We will differ from one another in how we view this decision, but there is no doubt that it will take a significant place in legal precedent.
Strangely enough, another highly relevant issue was raised by nobody in the court system other than Justice Ginsberg in her minority opinion. There she raised the question: Was this paper-pencil test really a valid measure of leadership potential for firefighters? But, as we say, that is another matter.
Dr. Edwin E. Vineyard, AKA The Militant Moderate
Monday, June 22, 2009
HEALTH CARE FOR DUMMIES
Perhaps a better title for this piece would be: “Health Care as Interpreted by One Dummy to Another.” Unlike many of our republican friends who are already opposed to a new health care program without knowing its form or substance, we are trying to sort out the facts of the issue and of the legislation which has been proposed. Much of that is still in flux, of course.
First of all, we can’t afford NOT to have vast changes in our health care delivery system in the United States. Our system is killing us.
Our health care is more expensive than health care in other developed countries, and it delivers a lower quality of care to our total citizenry. It is the most inefficient system in the world. It is NOT superior.
We have 47 million Americans without health insurance. These are working people whose employers do not provide a health insurance benefit, and/or who work for wages insufficient to afford insurance.
The expense of our health care system is higher because so many uninsured and under-insured cannot pay their bills. The cost of everybody’s health insurance is higher to cover the costs for the uninsured. This is a form of indirect tax. Have you looked at your premium lately?
The expense of our health care system hampers our industrial competition in the global economy.
We cannot afford not to have a genuine overhaul of our system. Band-aids will not do. And, it will cost money. Eighty-five percent of our people believe our system is fundamentally flawed and needs to be rebuilt.
Both democrats and republicans have offered solutions. A cost estimate has been made for proposals by democrats. No cost estimate has been proffered for the republicans’ proposals.
Since the republican proposal, supported by the insurance companies, is seemingly simple, although vague, we can examine it first.
Essentially the republicans propose to extend the status quo, except to make “affordable” private insurance available for more people to purchase. Subsidies would be provided to make it more “affordable” to some. They offer no way of paying for these subsidies, but candidate McCain has said previously that it would be paid for by taxing everybody’s employer provided health insurance. Experts contend that it may be more expensive than other proposals, drives up costs, and would require other taxes as well.
Other than this, the only republican position has been to oppose anything that is proposed by democrats, especially any proposal that would offer a government option in competition with profit companies. It appears they are more interested in the insurance companies than their voter constituents.
Republicans excuse this pro-company, anti-citizen position with scare cries of “socialism” and deficits. Cost estimates for the democrat program run around $1.3 trillion over ten years, about the same as the cost of the unnecessary war in Iraq. It is less than the $1.8 trillion cost of tax cuts for the rich. Doing nothing may cost more.
We are familiar government-run programs for federal employees, Medicare, Medicaid, Veterans Administration, and the Indian Health Service. Actually government-run Medicare is 19% cheaper than the same benefits in the private insurance option to seniors, hopefully to be closed soon at a savings of billions per year.
As a current (premium-paying) beneficiary of Medicare, and a paying member of the State Employees’ Medicare supplement insurance, this writer can attest these do NOT have the problems that critics attribute to government-run, “socialist” programs.
The House democratic plan currently proposes a comprehensive health insurance program which would cover 95% of the people. It continues Medicaid to those presently qualifying, and it offers a subsidy for those above that poverty level on up into lower-middle income levels. Its health care provisions would be basically that of present Medicare, including insurability for those with history of sickness.
Payments to providers would be along a similar schedule as Medicare. This government-run benefits plan would result in a savings in health care costs of 25% to 30% over the current system, and slow future rising costs.
The proposal would require employees to be enrolled in some plan, or be assessed a payroll fee of 8% to go toward insurance coverage costs.
Democrats say that they will provide for funding, which will have start-up costs and then be self-sustaining. They note billions will be saved by cancelling the subsidies for private insurance alternatives to Medicare. Other changes in Medicare and Medicaid can save billions more.
Democrats are opposed to the taxing of all employer health benefits. Instead they propose to tax only those enriched, gold-plated tax-exempt benefits above the basic level. Such are provided by some companies to higher income staff. Workers with income levels over $250,000 might have their benefits taxed.
Without a government-run option, any health reform plan is likely to be unaffordable and impractical. If the scare tactics of the republicans and their cries of socialism are persuasive, or the advertising campaign sponsored by the insurance companies (with your premium dollars), are successful in swaying opinion – the health care issue will be become comatose again.
A poll this week showed that 72% of the people support a government-run option like Medicare for all. Interestingly enough, 50% of the republicans surveyed were supportive, and 90% of the democrats.
We will all be losers if the Democrats fail to get on board, take charge, and push this program through, along with a method for paying the costs.
Dr. Edwin E. Vineyard, AKA The Militant Moderate
First of all, we can’t afford NOT to have vast changes in our health care delivery system in the United States. Our system is killing us.
Our health care is more expensive than health care in other developed countries, and it delivers a lower quality of care to our total citizenry. It is the most inefficient system in the world. It is NOT superior.
We have 47 million Americans without health insurance. These are working people whose employers do not provide a health insurance benefit, and/or who work for wages insufficient to afford insurance.
The expense of our health care system is higher because so many uninsured and under-insured cannot pay their bills. The cost of everybody’s health insurance is higher to cover the costs for the uninsured. This is a form of indirect tax. Have you looked at your premium lately?
The expense of our health care system hampers our industrial competition in the global economy.
We cannot afford not to have a genuine overhaul of our system. Band-aids will not do. And, it will cost money. Eighty-five percent of our people believe our system is fundamentally flawed and needs to be rebuilt.
Both democrats and republicans have offered solutions. A cost estimate has been made for proposals by democrats. No cost estimate has been proffered for the republicans’ proposals.
Since the republican proposal, supported by the insurance companies, is seemingly simple, although vague, we can examine it first.
Essentially the republicans propose to extend the status quo, except to make “affordable” private insurance available for more people to purchase. Subsidies would be provided to make it more “affordable” to some. They offer no way of paying for these subsidies, but candidate McCain has said previously that it would be paid for by taxing everybody’s employer provided health insurance. Experts contend that it may be more expensive than other proposals, drives up costs, and would require other taxes as well.
Other than this, the only republican position has been to oppose anything that is proposed by democrats, especially any proposal that would offer a government option in competition with profit companies. It appears they are more interested in the insurance companies than their voter constituents.
Republicans excuse this pro-company, anti-citizen position with scare cries of “socialism” and deficits. Cost estimates for the democrat program run around $1.3 trillion over ten years, about the same as the cost of the unnecessary war in Iraq. It is less than the $1.8 trillion cost of tax cuts for the rich. Doing nothing may cost more.
We are familiar government-run programs for federal employees, Medicare, Medicaid, Veterans Administration, and the Indian Health Service. Actually government-run Medicare is 19% cheaper than the same benefits in the private insurance option to seniors, hopefully to be closed soon at a savings of billions per year.
As a current (premium-paying) beneficiary of Medicare, and a paying member of the State Employees’ Medicare supplement insurance, this writer can attest these do NOT have the problems that critics attribute to government-run, “socialist” programs.
The House democratic plan currently proposes a comprehensive health insurance program which would cover 95% of the people. It continues Medicaid to those presently qualifying, and it offers a subsidy for those above that poverty level on up into lower-middle income levels. Its health care provisions would be basically that of present Medicare, including insurability for those with history of sickness.
Payments to providers would be along a similar schedule as Medicare. This government-run benefits plan would result in a savings in health care costs of 25% to 30% over the current system, and slow future rising costs.
The proposal would require employees to be enrolled in some plan, or be assessed a payroll fee of 8% to go toward insurance coverage costs.
Democrats say that they will provide for funding, which will have start-up costs and then be self-sustaining. They note billions will be saved by cancelling the subsidies for private insurance alternatives to Medicare. Other changes in Medicare and Medicaid can save billions more.
Democrats are opposed to the taxing of all employer health benefits. Instead they propose to tax only those enriched, gold-plated tax-exempt benefits above the basic level. Such are provided by some companies to higher income staff. Workers with income levels over $250,000 might have their benefits taxed.
Without a government-run option, any health reform plan is likely to be unaffordable and impractical. If the scare tactics of the republicans and their cries of socialism are persuasive, or the advertising campaign sponsored by the insurance companies (with your premium dollars), are successful in swaying opinion – the health care issue will be become comatose again.
A poll this week showed that 72% of the people support a government-run option like Medicare for all. Interestingly enough, 50% of the republicans surveyed were supportive, and 90% of the democrats.
We will all be losers if the Democrats fail to get on board, take charge, and push this program through, along with a method for paying the costs.
Dr. Edwin E. Vineyard, AKA The Militant Moderate
Monday, June 15, 2009
IT IS A FREEDOM ISSUE!
The murder of Dr. Tiller, gunned down in his own church by a religious fanatic, has brought the touchy political issue of abortion back to people’s attention. Perhaps assisting this focus of attention is the appointment and probable confirmation of a new Supreme Court judge who just might support the legal precedent of a previous high court decision that goes by the title of Roe vs. Wade.
That prior court decision made abortion legal in the United States on constitutional grounds. The religious right has been chipping away in one way or another at that decision ever since. Their political tool has been the Republican Party, aiding and abetting their attack on women’s rights in every way possible.
Republicans, in turn, have used the religious right by stirring up emotional ballot issues to bring out their votes for the party. How often have we seen one of those issues put on the ballot in critical general elections recently?
The abortion issue is one of freedom, purely and simply.
First, it is an issue of women being free to manage and control their own bodies. We have laws against sex crimes to avoid violation of women’s bodily and personal integrity and their freedom of non-consent.
The government does not tell a woman when and how to become pregnant. How outrageous that thought! Then why should the government intervene to tell a woman whether she should stay pregnant and have an unwanted child for which she must be in servitude.
Who are we to interject the government into such a personal matter as a pregnancy or its termination?
Secondly, the abortion issue is one of freedom of religion and separation of church and state. When the government succumbs to the will of the religious right, and begins to put the tenets of their beliefs into law, then this becomes a violation of the separation of church and state. It is clearly the legal “establishment of religion” as prohibited in the First Amendment of the Bill of Rights.
When the government begins to take the specific beliefs of a religious sect or group and put these into law for everyone, this brings the First Amendment into consideration. If these tenets come from a radical fanatic group, it may be ever the more egregious.
It should be clear that putting tenets of religion into law is improper, illegal, and hazardous to personal liberty – even if those tenets are subscribed or voted by a majority of citizens. This infringes on individual rights, nevertheless, and thus is prohibited by the Constitution.
The Constitution is the guarantor of individual liberty.
Edwin E. Vineyard
That prior court decision made abortion legal in the United States on constitutional grounds. The religious right has been chipping away in one way or another at that decision ever since. Their political tool has been the Republican Party, aiding and abetting their attack on women’s rights in every way possible.
Republicans, in turn, have used the religious right by stirring up emotional ballot issues to bring out their votes for the party. How often have we seen one of those issues put on the ballot in critical general elections recently?
The abortion issue is one of freedom, purely and simply.
First, it is an issue of women being free to manage and control their own bodies. We have laws against sex crimes to avoid violation of women’s bodily and personal integrity and their freedom of non-consent.
The government does not tell a woman when and how to become pregnant. How outrageous that thought! Then why should the government intervene to tell a woman whether she should stay pregnant and have an unwanted child for which she must be in servitude.
Who are we to interject the government into such a personal matter as a pregnancy or its termination?
Secondly, the abortion issue is one of freedom of religion and separation of church and state. When the government succumbs to the will of the religious right, and begins to put the tenets of their beliefs into law, then this becomes a violation of the separation of church and state. It is clearly the legal “establishment of religion” as prohibited in the First Amendment of the Bill of Rights.
When the government begins to take the specific beliefs of a religious sect or group and put these into law for everyone, this brings the First Amendment into consideration. If these tenets come from a radical fanatic group, it may be ever the more egregious.
It should be clear that putting tenets of religion into law is improper, illegal, and hazardous to personal liberty – even if those tenets are subscribed or voted by a majority of citizens. This infringes on individual rights, nevertheless, and thus is prohibited by the Constitution.
The Constitution is the guarantor of individual liberty.
Edwin E. Vineyard
Saturday, June 06, 2009
HATE SPEECH BEARS FRUIT
Hate speech consumes much of the time on our airwaves and electronic media. Well, maybe it’s not all hate speech, just constant inflammatory rhetoric. We have seen again recently the violent results of such a constant barrage of inflammatory words.
One is caused to wonder if there has ever been a time in the history of this nation that we have been so divided and fractionalized on so many fulcrums with as much hostility. Much of this is engendered by wild, irresponsible speech now when technology makes communications almost instantaneous.
Perhaps there have been periods in history when there was division, but usually issues were simpler. In the revolutionary period the patriots and the Tories resorted to violence. Then there were the Federalists and the Anti-federalists with new laws against sedition (free speech and publications). Jacksonian democracy brought conflicts between the commoners from the west and the propertied classes of the east. And, of course, there was the great Civil War replete first with name-calling and a terrible hatred, and followed by a massive loss of lives and devastation.
One could go on to cite many issues and historical periods of conflict. But at no time have we had such a daily harangue of criticism, allegations, divisiveness, and hostility unloaded on the American population from one basic constituency.
There is a daily assault by the Republican Party on the government leadership and the members of the other party. Their consistently negative, caustic speech and constant criticism of the president and all democratic efforts are dividing the country. It makes bi-partisanship impossible. Some political harangue might be expected, but for gosh sakes, give it a rest!
One could say that these political attacks are coming from the right wing of the Republican Party, but there is now every indication that is the ONLY wing in that party. Rush Limbaugh, Bill O’Reilly, Newt Gingrich, and Mr. Boehner, all critics-in-chief, are their leaders. With others seeking to emulate those, and none repudiated by regular party members or congressional people, then what else is left of the GOP but right wingers?
Republicans are known for inflammatory rhetoric. They have coined such terms as “death tax” for the traditional inheritance tax. They bandy around terms like “socialist” to describe any progressive proposal. They term abortion of embryos and fetuses as “baby killing.” They admit no fault and no errors of their own, past or present.
It is sad that we have our own form of the religiously fanatic Taliban ranging far and wide in this country. Members of fundamentalist churches have been led by their leaders to consider women’s reproductive freedom as “baby killing.” They then broaden that definition to the use of waste embryos in scientific research for treatment of injuries and disease. They regard all Muslims as evil, and Mr. Obama as the “Anti-Christ,” Muslim, and not a legal president.
There is no end to the political venom which comes from the hard right. There is an element in the country susceptible to such fanaticism and false information. It bursts forth in terrible ways.
A highly respected doctor was murdered in his church last week by a religious fanatic emboldened by the constant barrage of hate speech. When will we learn that domestic terrorists are developed and incubated by media rhetoric? They have their own groups with an undercover network for further cultivating hatred. This murderer, and other supporters of his cause, thought he was doing a heroic deed. Need we wonder why?
Mr. Obama gave a speech in Cairo hailed all over the world as “ground breaking” for peace. He outlined a blueprint for peoples of different races and religions getting along together through mutual respect and moral conduct. But his speech drew immediate negative responses from two groups – the Republicans and Al Qaeda. Wouldn’t you guess it?
Those left in the Republican Party are mostly a bitter and hateful bunch.
Dr. Edwin E. Vineyard, AKA The Militant Moderate
One is caused to wonder if there has ever been a time in the history of this nation that we have been so divided and fractionalized on so many fulcrums with as much hostility. Much of this is engendered by wild, irresponsible speech now when technology makes communications almost instantaneous.
Perhaps there have been periods in history when there was division, but usually issues were simpler. In the revolutionary period the patriots and the Tories resorted to violence. Then there were the Federalists and the Anti-federalists with new laws against sedition (free speech and publications). Jacksonian democracy brought conflicts between the commoners from the west and the propertied classes of the east. And, of course, there was the great Civil War replete first with name-calling and a terrible hatred, and followed by a massive loss of lives and devastation.
One could go on to cite many issues and historical periods of conflict. But at no time have we had such a daily harangue of criticism, allegations, divisiveness, and hostility unloaded on the American population from one basic constituency.
There is a daily assault by the Republican Party on the government leadership and the members of the other party. Their consistently negative, caustic speech and constant criticism of the president and all democratic efforts are dividing the country. It makes bi-partisanship impossible. Some political harangue might be expected, but for gosh sakes, give it a rest!
One could say that these political attacks are coming from the right wing of the Republican Party, but there is now every indication that is the ONLY wing in that party. Rush Limbaugh, Bill O’Reilly, Newt Gingrich, and Mr. Boehner, all critics-in-chief, are their leaders. With others seeking to emulate those, and none repudiated by regular party members or congressional people, then what else is left of the GOP but right wingers?
Republicans are known for inflammatory rhetoric. They have coined such terms as “death tax” for the traditional inheritance tax. They bandy around terms like “socialist” to describe any progressive proposal. They term abortion of embryos and fetuses as “baby killing.” They admit no fault and no errors of their own, past or present.
It is sad that we have our own form of the religiously fanatic Taliban ranging far and wide in this country. Members of fundamentalist churches have been led by their leaders to consider women’s reproductive freedom as “baby killing.” They then broaden that definition to the use of waste embryos in scientific research for treatment of injuries and disease. They regard all Muslims as evil, and Mr. Obama as the “Anti-Christ,” Muslim, and not a legal president.
There is no end to the political venom which comes from the hard right. There is an element in the country susceptible to such fanaticism and false information. It bursts forth in terrible ways.
A highly respected doctor was murdered in his church last week by a religious fanatic emboldened by the constant barrage of hate speech. When will we learn that domestic terrorists are developed and incubated by media rhetoric? They have their own groups with an undercover network for further cultivating hatred. This murderer, and other supporters of his cause, thought he was doing a heroic deed. Need we wonder why?
Mr. Obama gave a speech in Cairo hailed all over the world as “ground breaking” for peace. He outlined a blueprint for peoples of different races and religions getting along together through mutual respect and moral conduct. But his speech drew immediate negative responses from two groups – the Republicans and Al Qaeda. Wouldn’t you guess it?
Those left in the Republican Party are mostly a bitter and hateful bunch.
Dr. Edwin E. Vineyard, AKA The Militant Moderate
