Ação afirmativa e os bombeiros nos Estados Unidos

Prof Farlei Martins, doutorando em direito da Puc-rio e professor da Ucam, envia a seguinte matéria




Causing a stir
Jun 29th 2009
From The Economist



IN ITS most closely watched case this year, America’s Supreme Court ruled on
Monday June 29th that the authorities in New Haven, Connecticut, were wrong
to deny promotion to white firemen because no blacks had scored high enough
marks in an exam to warrant advancement. The case, Ricci v DeStefano, was
brought by white (and Hispanic) firemen who had taken a test in 2003 to
determine their suitability for promotion to lieutenant or captain. They
accused New Haven of discrimination when it refused, fearing litigation, to
certify the results. With no blacks succeeding, the exam had become a
politically contentious issue in the city.

In a 5-4 decision, the Supreme Court held that New Haven’s actions violated
the 1964 Civil Rights Act. It found that the firemen’s test was job related,
and crucially, that it was not designed to have a “disparate impact” on
minorities, the ground on which New Haven said it feared being sued. Writing
for the majority, Justice Anthony Kennedy concluded that the firemen had
studied for months at considerable personal expense, and so the injury
caused by New Haven’s “reliance on raw racial statistics at the end of the
process was all the more severe”.

The Court was split along ideological lines, with Mr Kennedy providing the
decisive vote. Summing up for the dissenters, Justice Ruth Bader Ginsburg
argued that the white firemen “had no vested right to promotion”. She
reasoned that in largely black New Haven “minorities are rarely seen in
command positions” and that other cities had designed tests with “less
racially skewed outcomes”.
As well as its potential impact on employment law, the case attracted
interest because one of the judges on the appeals-court panel that sided
with New Haven’s position was Sonia Sotomayor, Barack Obama’s nominee for
the Supreme Court to replace the retiring David Souter.

The decision in Ricci provides some embarrassment for Mr Obama, so close to
the start of Ms Sotomayor’s Senate confirmation hearings on July 13th. The
White House’s view is that Ms Sotomayor is a centrist judge, a pragmatist
with solid rulings in hundreds of cases during her time as a district judge
and on the court of appeals. She would also be the first Hispanic on the
Court, a fact noticed by a Republican Party that had once hoped to make
great gains among that group at the polling booth. Democrats are confident
that Ms Sotomayor will sail through.

So far, the public has responded positively to her nomination, although most
know little about her. One poll in mid-June found that 58% of people were
“undecided” or had “not heard enough” about Ms Sotomayor to say whether or
not they favoured her nomination. Although the same poll also found that 74%
said it was important that the Court reflect the gender, racial and ethnic
make-up of the country.

The Republicans have recently started to push against her nomination. Orrin
Hatch, a senator from Utah and a member of the Judiciary Committee, says it
is critical to find out if Ms Sotomayor endorses the “restrained view” of
judicial power or the “activist view”. Conservatives are also making noises
about Ms Sotomayor’s time on the board of directors at the Puerto Rican
Legal Defence and Education Fund, a civil-rights group that some Republican
senators believe is “outside the mainstream”.

What could be more troubling for Ms Sotomayor is her remark in a speech in
2001 that “I would hope that a wise Latina woman with the richness of her
experiences would more often than not reach a better conclusion than a white
male who hasn’t lived that life”. Jeff Sessions, the senior Republican
senator on the Judiciary Committee, has attacked Mr Obama’s notion that
judges should have “empathy”, a characteristic the president says he looks
for in members of the judiciary. “When there is empathy toward one, is it
not prejudice against the other?”, argues Mr Sessions, who thinks Ms
Sotomayor may “look outside the law and evidence”.

Although Democrats are convinced Republicans will get nowhere by attacking
the “empathy” of a judge, such judicial underpinnings were raised in the
Supreme Court’s Ricci decision. The dissenters noted that the white firemen
had attracted the court’s “sympathy”. Justice Samuel Alito, disagreed,
saying that the petitioners had no right to sympathy, but they did have a
right to “even-handed enforcement of the law” and not to be discriminated
against.