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Peter Kirsanow Testifies at Sonia Sotomayor's Confirmation Hearings

CQ Transcriptions
Thursday, July 16, 2009 4:35 PM

CARDIN: We'll now hear from Peter Kirsanow. Peter Kirsanow serves on the U.S. Commission on Civil Rights. He's a member of the National Labor Relations Board where he received a recess appointment from President George W. Bush. Previously, he was a partner with the Cleveland law firm of Benesch, Friedlander, Coplan and Aronoff. Mr. Kirsanow received his law degree from Cleveland State University.

KIRSANOW: Thank you, Mr. Chairman, Senator Sessions, members of the committee, I am Peter Kirsanow, a member of the U.S. Commission on Civil rights. I am currently back at Benesch, Friedlander in the legal employment practice group. I am here in my personal capacity.

The U.S. Commission on Civil Rights was established...

SESSIONS (?): Is that microphone on?

KIRSANOW: The U.S. Commission on Civil Rights was established by the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for information related to denials of equal protection and discrimination, and in furtherance of the clearinghouse process, my assistant and I reviewed the opinions in civil rights cases in which Judge Sotomayor participated while on the 2nd Circuit in the context of prevailing civil rights jurisprudence and with particular attention to the case of Ricci v. DiStefano.

Our review revealed at least three significant concerns with respect to the manner in which the three-judge panel that included Judge Sotomayor handled the case. The first concern was, as you've heard, the summary disposition of this particular case. The Ricci case contained constitutional issues of extraordinary importance and impact. For example, the issues of -- that are very controversial and volatile -- racial quotas and racial discrimination.

This was a case of first impression. No 2nd Circuit or Supreme Court precedent on point.

KIRSANOW: Indeed, to the extent there were any cases that could provide guidance, such as Wigant (ph), Crosen (ph), Aderant (ph), even private sector cases, such as Johnson (ph) Transportation, Frank v. Xerox, Weather (ph) v. Steelworkers (ph), would dictate or suggest a result opposite of that reached by the Sotomayor panel.

The case contained a host of critical issues for review, yet the three-judge panel summarily disposed of the case, as you've heard, in an unpublished, one-paragraph, per curium opinion that's usually reserved for cases that are relatively simple, straightforward and inconsequential.

The second concern is that the Sotomayor panel's order would inevitably result in the proliferation of de facto racial and ethnic quotas. The standard endorsed by the Sotomayor panel was lower than that adopted by the Supreme Court's test of strong basis in evidence.

Essentially, any race-based employment decision invoked to avoid a disparate impact lawsuit would provide immunity from Title VII review. Under this standard, employers who fear the prospect or expense of litigation, regardless of the merits of the case, would have a green light to resort to racial quotas.

But even more invidious is the use of quotas due to racial politics, and, as Judge Alito's concurrence showed, there was glaringly abundant evidence of racial politics in the Ricci case.

Had the Sotomayor panel decision prevailed, employers would have license to use racial preferences and quotas on an expansive scale. Evidence adduced before the Civil Rights Committee shows that when courts open the door to preferences just a crack, preferences expand exponentially.

For example, evidence adduced before hearings of the Civil Rights Commission in 2005 and 2006 show that despite the fact that Aderant (ph) was passed more than -- or decided more than 10 years ago, federal agencies persist in using race conscious programs in federal contracting, governmental contracting, as opposed to race-neutral alternatives.

Moreover, even though the Supreme Court had struck down the use of raw numerical weighting in college admissions in Gratz v. Bollinger, thereby requiring that race be only a mere plus factor, a thumb on the scale in the admissions process, powerful preferences show no signs of abating. A study by the Center for Equal Opportunity showed that in a major university preferences were so great that the odds that a minority applicant would be admitted over a similarly situated white comparative were 250-1. At another major university, 1,115-1. That's not a thumb on the scale, that's an anvil.

And had the reasoning of the Ricci case in the lower court prevailed, what happened to Firefighter Ricci and Lieutenant Vargas would happen to innumerably more Americans of every race throughout the country.

The third concern is that the lower court's decision that would permit racial engineering by employers would actually harm minorities who were the purported beneficiaries of that particular decision.

Evidence adduced at a 2006 Civil Rights Commission hearing shows that there's increasing data that preferences create mismatch effects that actually increase the probabilities that minorities will fail if they receive beneficial treatment or preferential treatment.

For example, black law students who were admitted in preferences are two and a half times more likely not to graduate than their similarly situated white or Asian comparatives; four times as likely not to pass the bar exam on the first try; and six times as likely never to pass the bar exam, despite multiple attempts.

KIRSANOW: Mr. Chairman, it's respectfully submitted that, if a nominee's interpretative factoring permits an employer to treat one group preferentially today, there's nothing that prevents them from treating another group or shifting their preferences to another group tomorrow.

And it's contrary to the color-blind ideal contemplated by the 1964 Civil Rights Act, Title VII, which was the issue decided in the Ricci case.

Thank you, Mr. Chairman.

WHITEHOUSE: And thank you for your testimony.

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