Then Judge Sotomayor interrupts:
JUDGE SOTOMAYOR: Counsel ... we're not suggesting that unqualified people be hired. The city's not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there's an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you're unqualified--the pass rate is the pass rate--all right? But if your test is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try and look and see if it can develop that?
KAREN LEE TORRE: Because they already developed it, your honor.
JUDGE SOTOMAYOR: It assumes the answer. It assumes the answer which is that, um, the test is valid because we say it's valid.
KAREN LEE TORRE: The testing consultant said it was valid. He told them it was valid.... They had evidence that the test was job-related and valid for use under Title VII.
Sotomayor may have not wanted unqualified firefighters to be elevated to the position of captain and lieutenant--she simply wanted less qualified firefighters to be placed in charge of the lives of other men in the interests of racial diversity. I wonder what Eddie Ramos would say about that if he were alive today.
During her confirmation hearing, hopefully we will get to find out what evidence Sotomayor had to back up her claim that this test "is always going to put a certain group at the bottom". Did she actually examine the test to see if it was unfair to a particular group? And, how, precisely, does she think it's possible to create a test that "measures knowledge in a more substantive way"?