Who's Talking About Excellence?

John Yoo, a guy who said that the President has the right to crush the testicles of a child under the Constitution, dares to criticize Sonia Sotomayor for not being "excellent". Hilariously, he claims that Diane Wood or Elena Kagan would have been fine choices, when in the event of their choice, he would have simply substituted their names for Sotomayor's and put out this template of an op-ed. And Yoo saying that anyone lacks intellectual "firepower" just stretches credulity to the limit.

Predictably, the only case that Sotomayor ever ruled upon, according to the wingnuts, is the Ricci case, which Doug Kendall and Dahlia Lithwick debunk.

Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. He studied hard and got the sixth-highest score on the exam—qualifying him for one of the eight open spots. But despite all that, Ricci still hasn't received his promotion, which is the basis of his lawsuit.

What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. That's because none of the African-American candidates, and only two of the 50 minority candidates, who took the test would have been eligible for promotion based on the results. Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

When the case was argued before the Supreme Court last month, all of the justices seemed to agree that New Haven had to comply with valid federal statutes. Mr. Ricci did not challenge the constitutionality of Title VII. So the only real question before the court was whether New Haven had reason to believe that if the city used the test results it would be sued under Title VII. Mr. Ricci's specific circumstances—his race, his dyslexia, and his professional aggravation—have no bearing on that legal question at all.

So why did every report on the case begin and end with Ricci's compelling employment story? Might it have something to do with the fact that the conservative organizations supporting Ricci used his sympathetic tale as the centerpiece of a successful media blitz leading up to oral argument before the court? Could it be that they wanted to make sure the justices understood just how Title VII could impact the lives of ordinary Americans like Frank Ricci? Could they—oh the horror!—have wanted the justices to empathize with Ricci's plight?

Now who's being empathetic?

...Media Matters nails John Yoo. This is from Yoo's review of Clarence Thomas' book:

As his memoir shows, Justice Thomas's views were forged in the crucible of a truly authentic American story. This is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him. A man like this on the Court is the very definition of the healthy diversity his detractors pretend to support.

Plenty more at the link.