Sen. Hatch Questions Witnesses at Judge Sotomayor's Confirmation Hearings

CQ Transcriptions
Thursday, July 16, 2009; 5:22 PM

WHITEHOUSE: Senator Hatch?

HATCH: Well, thank you, Mr. Chairman.

Mayor, it's always good to see you. I appreciate the joy and the verve of which you run New York City. I know that it's a tough city to run, but you do a great job.

BLOOMBERG: Thank you.

HATCH: And, Mr. Morgenthau, we all respect you. You know that. I know that. And you've given a long public service that is of great distinction.

It's always good to have attorneys general from any state here, and we're grateful to have you here, Mr. McDaniel.

Mr. Henderson and I have been friends for a long time. We sometimes oppose each other, but it's always been with friendship and kindness.

We're grateful to have you two -- you two great people here who do such very important work in the city of New Haven. I know it takes guts to come here, and we appreciate you being here.

Mr. Kirsanow, let me just -- and, certainly, Mr. Kirsanow and Linda Chavez, we -- we recognize your genius, too, and the things that you bring to the table.

Let me just ask you this, Mr. Kirsanow, because I was the one who raised the Ricci case to begin with. I -- I have two related questions about the Ricci case.

Do you agree with Judge Cabranes and -- and the other five judges who agreed with him that this was a case of first impression in the Second Circuit, which means that there was no precedent?

KIRSANOW: That's correct, Senator. We took a very strong look as to whether or not there was anything on point. There may have been some peripheral cases that wouldn't provide any definitive guidance. But as I indicated in my statement, to the extent there were cases to provide guidance, maybe equal protection clause cases -- Wygant's one (ph) and so forth -- those were the kind of cases you'd have to look through, but none -- none under Title VII.

HATCH: Well, explain what was the issue of first impression that these six judges found.

KIRSANOW: It was...

HATCH: They were in the minority 7-6, but they -- they -- Judge Cabranes got very alarmed, because this was a summary order that ordinarily they wouldn't have seen, but he caught it in the newspaper, asked to see it, and then said, "My gosh, this is a case of first impression. We ought to do more than just a summary order on it," which is something that I've been very critical of.

KIRSANOW: Senator, it was the tension between two provisions of Title VII and...

HATCH: You're talking about disparate treatment and disparate impact?

KIRSANOW: Precisely.

HATCH: And this was...

KIRSANOW: And trying to balance the two. And keep in mind that the 1991 amendments were really a product of Griggs v. Duke Power and its progeny. And remember that Griggs was really a response to the difficulty in demonstrating intentional discrimination so that there was a resort to disparate impact to try to help prove the case.

So whether you give primacy to intentional discrimination or disparate impact was, what was trying to be determined here? Or not necessarily primacy, but trying to evaluate both consistently with the purposes of Title VII.

HATCH: Well, please explain the difference between what the Supreme Court split 5-4 and what all nine of the justices on the Supreme Court, why they criticized Judge Sotomayor's decision.

(UNKNOWN): Had to do with the process by which the decision was reached. Even the dissent, Justice Ginsburg, noted in (inaudible) 10 that this is something that ordinarily should have been sent back on remand because it was to determine whether -- that is, to determine whether or not there was good cause for taking the decision New Haven took.

The majority, on the other hand, said the city of New Haven had to have a strong basis in evidence before it discarded the test results.

So there are two separate standards by both the majority and the dissent, but neither agreed with the manner in which the Sotomayor panel disposed of the case.

HATCH: So all nine justices on the court agreed that the appropriate law wasn't followed.

(UNKNOWN): Correct.

HATCH: And five of them said the city of New Haven was wrong.

(UNKNOWN): Correct.

HATCH: So the firefighters won.

(UNKNOWN): Now, Mr. Vargas, I just wanted to make that clear, because I don't think a lot of people realize that, and that's a very, very big thing to me.

Mr. Vargas, your comments about your sons were powerful. What difference does it make for them whether merit or race determines opportunity? And what difference does this case mean for them?

VARGAS: I believe this is going to be a greater opportunity for them in the future because they're not going to be stigmatized that way, they're not going to be looked at that ways, and they're going to rise and fall on their own merits...


HATCH: And that's one reason why you brought this case... VARGAS: That's absolutely right.

HATCH: Mr. Ricci, I only have a few seconds, but let me say this. I want to thank you for your service for protecting your fellow citizens up there.

As I understand it, the city of New Haven went to great lengths to devise this promotion test that was -- the lengths were fair, objective -- the test was fair, objective and not tilted toward or against any demographic group. In fact, I understand the test was not questioned.

They worked on the kind and context of the question so that they were relevant to the job, but would not create a hurdle for anyone. They used both a written and an oral exam format, right?

Is your understanding of how they worked to put together the test and did -- that that's the way they put it together? And did that make you believe that you would be judged on your merits?

RICCI: Yes, Senator. The rules of the game were set up and we have a right to be judged fairly. And just by taking the test we knew that the test -- we didn't even need to go any further, just by taking the test we knew that the test was job-related and measured the skills, ability and knowledge need for a competent fire officer.

HATCH: Well, did that make you see this as a genuine opportunity that might, indeed, be open to you?

RICCI: Yes, Senator.

HATCH: Now, tell me more about your expectations when you looked at this opportunity. You were no doubt familiar with the racial dynamics that existed in New Haven at the time. Anyone involved in their community anywhere would be aware of that.

Do you think that at all, that because the test was so rigorously and fairly designed that any of those outside racial dynamics would become an obstacle to your future service in the fire department as long as you were qualified for the job?

RICCI: No. Myself and all 20 plaintiffs, including other firefighters that didn't join the suit, including African Americans and Hispanics, I think we all had the expectation when we took the test that the test would be fair and job-related and that it was going to be dictated by one's merit on how well you did you did on the exam, not by the color of your skin.


General, I just have one statement to make. You made the comment that the Supreme Court changed the law by a majority. They didn't change the law. They actually recognized there was a case of first impression here that had to be decided, and they decided it. They didn't change any laws.


(UNKNOWN): And it wasn't by their majority. I mean nine of them said the case should be re-examined. Five of them said that New Haven was wrong. And I just wanted to make that clear so that everybody would understand it because this is not some itty-bitty case. This is one of the most important cases in the country's history, and that's why it's caused such a furor.

And I want to compliment all of you firemen who have been willing to stand up in this issue because this is an important issue for people of whatever race or gender or ethnicity. And I -- you know you've taken a lot of flack for it, and you shouldn't.

Thank you, Mr. Chairman.

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