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Key Excerpt: Kyl and Sotomayor on Ricci v. DeStefano

Courtesy of CQ Transcriptions

SEN. KYL: If response to one of Senator Sessions' questions on Tuesday about the Ricci case, you stated that your actions in the case where controlled by established Supreme Court precedent. You also said that a variety of different judges on the appellate court were looking at the case in light of stabled Supreme Court and Second Circuit precedent.

And you said that the Supreme Court was the only body that had the discretion and the power to decide how these tough issues should be decided. Those are all quotations from you.

Now, I've carefully reviewed the decision, and I think the reality is different. No Supreme Court case had decided whether rejecting an employment test because of its racial results would violate the civil rights laws.

Neither the Supreme Court's majority in Ricci nor the four dissenting judges discussed or even cited any cases that addressed the question. In fact, the court, in its opinion, even noted -- and I'm quoting here -- that this action presents two provisions of Title 7 to be interpreted and reconciled with few, if any, precedents in the court of appeals discussing the issue.

In other words, not only did the Supreme Court not identify any Supreme Court cases that were on point, it found few, if any, lower court opinions that even addressed the issue.

Isn't it true that you were incorrect in your earlier statement that you were bound by established Supreme Court and Second Circuit precedent when you voted each time to reject the firefighters' civil rights complaint?

JUDGE SOTOMAYOR: Senator, I was -- let me place the Ricci decision back in context. The issue was whether or not employees who had -- were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit, that they have a right to bring a lawsuit on the basis of a prima facie case, and what would that consist of?

That was established Second Circuit precedent and had been -- at least up to that point -- been concluded from Supreme Court precedents describing the initial burden that employees had.

KYL: Well...

SOTOMAYOR: That was...

KYL: Are you speaking here now -- I mean, you said the right to bring the lawsuit. It's not a question of standing. There was a question of summary judgment.

SOTOMAYOR: Exactly. Of -- exactly, which is when you speak about a right to bring a lawsuit, I mean, what's the minimum amount of good-faith evidence do they have to actually file the complaint?

An established precedent said, you can make out an employee a prima facie case of a violation of Title VII under just merely by -- not merely -- that's denigrating it -- by showing a disparate impact. Then, the city was faced with the choice of, OK, we're now facing two claims, one...

KYL: If I could just interrupt, we only have 20 minutes here, and I'm aware of the facts of the case. I know what the claims were. The question I asked was very simple. You said that you were bound by Supreme Court and Second Circuit precedent. What was it? There is no Supreme Court precedent. And as the court itself noted, they could find few, if any, Second Circuit precedents.

SOTOMAYOR: The question was, the precedent that existed and whether viewing it, one would view this as the city discriminating on the basis of race or the city concluding that because it was unsure that its test actually avoided disparate impact, but still tested for necessary qualifications, was it discriminating on the basis of race by not certifying the test?

KYL: Well, so you disagree with the Supreme Court's characterization of the precedents available to decide the case?

SOTOMAYOR: It's not that I disagree. The question was a more focused one that the court was looking at, which was saying -- not more focused. It was a different look.

It was saying, OK, you got these precedents. It says employees can sue the city. The city -- the city is now facing liability. It's unsure whether it can defeat that liability. It's -- and so it decides not to certify the test and see if it could come up with one that would still measure the necessary qualifications.

Continue reading the exchange between Sen. Kyl and Judge Sotomayor here.

By Washington Post editors  |  July 16, 2009; 10:10 AM ET
Categories:  Hearings , Supreme Court , Topics: Ricci v. DeStefano  
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