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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  December 17, 2008
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Topic category:  Other/General

Let's Find Out Where Obama Really Stands on "Reverse Racism"!

Mr. Taylor summarizing Judge Cabranes on the Second Circuit decision in the case: "Cabranes stressed that despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel's 'perfunctory disposition' oddly contained 'no reference whatsoever to the constitutional claims at the core of this case.'"

National Journal's Stuart Taylor is ready to find out whether his hope with respect to the President-Elect is realistic.

The title to Mr. Taylor's latest article--"New Haven's Injustice Shouldn't Disappear"--shows where Mr. Taylor stands on a certain case.

The subtitle--"The Supreme Court should agree to hear the case of a firefighter who was denied a promotion because he is not black"--succinctly states the issue in the case.

Mr. Taylor: "I suspect that deep down, Obama would appreciate the simple injustice of the New Haven firefighter case. It would be most interesting to find out."

With all due respect, the President-Elect could appreciate that, yet opt to do nothing about it.

What is most important is what is done, or not done.

Mr. Taylor elaborated on the case:

"Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. After a 7-6, near-party-line vote by a federal Appeals Court to dismiss the lawsuit, the plaintiffs petitioned for Supreme Court review.

"If the Court grants the petition, the now-obscure case will vault to the top of the nation's racial policy agenda, presenting a tough issue not only for the justices but also for President-elect Obama. He could come under great pressure to take a position for or against the blessing conferred by eight liberal lower-court judges on what many voters -- and, I would guess, five justices -- would see as a raw racial quota."

The Supreme Court should grant certiorari and hear and decide the case expeditiously, while Mr. Taylor's guess on a reversal, 5 to 4, seems right.

Mr. Taylor is unsure where certiorari will be granted.

"To be sure, it is far from clear that the Court will take the case, one of dozens scheduled to come before its confidential conference on December 12. Although a dissent by six conservative and moderate Appeals Court judges urged Supreme Court review, the case does not involve the kind of clear split among lower courts that only the high court can resolve. So it may disappear without a trace, with no occasion for Obama or his Justice Department to take a position."

But Mr. Taylor is firm that certiorari should be granted:

"A denial of review would also leave the racial-preference machinery around the country grinding steadily on without interruption. And that would be a shame, in my view, because the stark facts of this case illustrate how racial politics sometimes combine with little-known judicial precedents and 'civil-rights' laws to violate the civil rights of working-class and middle-class white, Asian, and (at least in this case) Hispanic Americans.

"Ricci studied for eight to 13 hours a day to prepare for the combined written and oral exam in 2003 that he hoped would win him a promotion. He spent more than $1,000 buying the books that the city had suggested as homework and paying an acquaintance to read them onto audiotapes. (Ricci is dyslexic and learns better by listening.) And he got one of the highest scores.

"But Ricci and other would-be lieutenants and captains with high scores did not get the promotions they expected. The reason was that -- because not enough black firefighters had done well enough to be eligible -- New Haven decided to discard the test results and make no promotions at all."

Importantly, Mr. Taylor highlighted the attitude of Clinton/Obama judicial favorites on the issue in the case.

"U.S. District Judge Janet Arterton of New Haven dismissed the case. A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit affirmed the dismissal, in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both.

"Arterton was appointed by President Clinton. So were the three 2nd Circuit judges who heard the initial appeal, including Sonia Sotomayor, who is touted by liberal and Hispanic groups as a leading candidate for an Obama appointment to the Supreme Court. The three-judge panel initially deep-sixed the firefighters' appeal in a cursory, unpublished order that disclosed virtually nothing about the nature of the ideologically explosive case.

"Then the Circuit's more conservative judges got wind of the case. They sought to have it reheard by the full Appeals Court but lost in a 7-6 vote. All but one of the seven is a Clinton appointee. And all six of the dissenters were named by President George W. Bush or his father, with the exception of Jose Cabranes, a moderate Clinton appointee."

Judge Cabranes on the case: "At its core, this case presents a straightforward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

Mr. Taylor summarizing Judge Cabranes on the Second Circuit decision in the case: "Cabranes stressed that despite the importance of the issues and the unusually long and detailed briefs, arguments, and factual record, the three-judge panel's 'perfunctory disposition' oddly contained 'no reference whatsoever to the constitutional claims at the core of this case.'"

Mr. Taylor on how the "liberal" Second Circuit judges tried to rationalize dismissing the case: "Five of the majority judges, including Sotomayor, retorted that New Haven's decision to discard the test results and deny what would otherwise have been virtually automatic promotions to the highest-scoring white and Hispanic firefighters was 'facially race-neutral.' The reason? Because none of the low-scoring, ineligible African-American firefighters was promoted either. These five judges also endorsed Judge Arterton's conclusion that the city's decision was justified by fears that promoting the high-scoring whites might violate Title VII of the 1964 Civil Rights Act and bring a discrimination suit by the low-scoring blacks."

Mr. Taylor explained how "reverse racism" works:

"Simply because a much higher percentage of the whites than of the blacks who took the exams had passed, the majority said (adopting Judge Arterton's opinion), the city could be 'faced with a prima facie case of disparate impact liability under Title VII.'

"In seeking Supreme Court review, Karen Lee Torre, the plaintiffs' lawyer, dismissed these supposed fears as a pretext for racial politics and patronage. She stressed that there was no serious evidence that the professionally developed exams were in any way unfair, infected with bias, or unrelated to ability to perform the job.

"But even so, failing to award a roughly proportionate percentage of promotions to African-Americans could subject New Haven, or any other employer, to Title VII liability -- depending on the identity of the judge -- unless it could prove that it could not possibly have found another exam on which blacks might have done better.

"Indeed, large racial disparities in performance on written tests used by employers and others have long existed throughout the country. That's what one might expect, given data showing that the average black high school graduate has learned no more than the average white or Asian eighth-grader. But the law treats these disparities as evidence of racial discrimination. Many employers, therefore, seek to avoid liability by giving racial preferences to minorities, and they will continue to do so unless and until the Supreme Court modifies, or clarifies, the law.

"Racial politics clearly did figure in the city's denial of promotions to the white and Hispanic firefighters. Politically powerful African-American leaders made it clear that if not enough blacks were eligible for promotion, then no whites should be promoted either. One was the Rev. Boise Kimber, who disrupted meetings of the city's civil service board and warned its members of a 'political ramification' if they certified the exam results. Kimber was a key vote-getter for Mayor DeStefano, who had made the minister chairman of New Haven's Board of Fire Commissioners despite his 1996 felony convictions (reported by the New Haven Register) for perjury and stealing money from an elderly woman's burial fund.

"The city's other reasons for wanting to give more promotions to minority firefighters -- diversifying the upper ranks, and providing role models for younger black and Hispanic firefighters -- are entirely laudable. But at what cost to those who work hard and play by the rules only to be turned aside for being the wrong color?"

Mr. Taylor thinks that the President-Elect would be moved by the injustice in the case, but his kind of appointees would not be.

"'Most working- and middle-class white Americans don't feel that they have been particularly privileged by their race,' Obama said in his much-acclaimed March 18 speech about race. 'So when they ... hear that an African-American is getting an advantage in landing a good job or a spot in a good college because of an injustice that they themselves never committed ... resentment builds over time.'

"So it does. But based on Obama's record and the views of the civil-rights specialists on his transition team, there is every reason to worry that he will appoint civil-rights enforcers, judges, and justices bent on perpetuating the race-based discrimination against whites (and Asians) in many walks of life that is exemplified by the New Haven firefighter case."

Let's find out!

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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