Thursday, July 16, 2009 5:25 PM
LEAHY: Thank you. Senator Specter?
SPECTER: Thank you, Mr. Chairman.
Mr. Ricci, I agree with just about everything you said, but you had a right to go to federal court and get justice that racial statistics are wrong. What we sought was even-handed justice, and as the Court finally decided, you have been deprived of your rights and made a change. The question that I have for you, do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?
RICCI: That's beyond my legal expertise. I am not an attorney or a legal scholar. I simply welcome an invitation by the United State Senate to come here today, and this is our first time that we've gotten to testify about our story. So I can't comment on...
SPECTER: Well I think that it's very good that you've been here and had a chance to testify. I agree with that totally. And there's enormous appreciation for the work the firefighters do.
I had a lot of association with the firefighters in my day as a city official in Philadelphia, and on the Homeland Security been in the forefront of funding for firefighters. And what the firefighters did on 9/11 was -- words are inadequate: heroism and bravery and the loss of lives and the suffering.
Lieutenant Vargas, again agree with all of your testimony. In your work you have to get it right the first time. Well, when you have 5-4 decisions it's hard to say which way the ball bounces, especially when they get reversed from time-to-time. But I would ask you the same question I asked of Mr. Ricci whether you have any reason to doubt the good faith of Judge Sotomayor in coming to the conclusion she did.
VARGAS: I would have to defer to pretty much the same response that we were invited here to give our story, and we wanted to focus on that. And I -- I really didn't took much to that, no.
SPECTER: OK. Well that's fair enough. And it's up to the Senate. We hope we get it right. But all anybody can use is their best judgment.
Mr. Boies, when you place so much reliance on Ricci v. Adista Funnel (ph) was a basis for opposing Judge Sotomayor. Isn't that case just overloaded with subtlety and nuance? Could've gone the other way? Could you really place much reliance on criticism of Judge Sotomayor as a disqualifier?
BOIES: Well first of all, Senator Specter, I think I actually went back to criticize Judge Sotomayor's activities going all the way back to Princeton University, so I don't think I relied exclusively.
I think what -- and I would answer the questions that you asked Mr. Vargas and Mr. Ricci. I do think that Judge Sotomayor, based on her history, her involvement with the Puerto Rican Legal Defense and Education Fund, her writings, her activism, has indicated a preference to eliminate testing. She has fought to -- to get rid of civil service testing. She has challenged tests as being inherently -- standardized tests as being inherently unequal and as always arriving arriving at a disparate impact.
And I think that activism, that involvement, going back decades, did in fact influence the way she approached this case. So I think it is relevant. And that is the reason I'm criticizing it. It's not just her one decision in one case. It is her whole body of work, her whole life experience and the views that she has expressed over several decades.
SPECTER: Well, we consistently have nominees for the Supreme Court come to this panel, Justice Alito, Chief Justice Roberts, Justice Thomas, on both sides of the ideological divide, and what they do in an advocacy position is customarily set aside to make an evaluation as to their -- their competency.
When you talk about being a woman or being an Hispanic, it's my view that that, kind of diversity is enormously helpful.
I go back to a question I asked Attorney General Meese more than 25 years ago. If you have -- the debate was raging on affirmative action even more than it is now -- if you have two people of equal competency and one is a minority, Attorney General Meese, not known for being a flaming liberal, took -- took the minority position.
And my own view is that it's time we have more women and we had more diversity. And we have to have qualifications -- have to have qualifications. And I think that's what ultimately determines this nomination.
Attorney General McDaniel, let me ask you a loaded question. You can handle a loaded question.
Do you think, with all of the critical issues we have to face on separation of powers and what the Congress does by way of fact-finding and what is done on the Americans With Disabilities Act and trying to find out about warrantless wiretaps and the Foreign Intelligence Surveillance Act and compensation for the survivors of the victims of 9/11 and the intricate relationship to the State Department influencing the way Congress interprets the foreign (ph) sovereign immunity, that there's a little too much attention paid to the Ricci case -- not that it's not very important, but there are lot of other matters that are important.
Isn't this a little heavy on one case?
MCDANIEL: Senator, not only do I agree with you about the other issues that should be given ample attention because of their enormous weight, I think that perhaps the wrong focus of attention even on this case has been applied.
Chief Justice Roberts has said that he would like to "narrow standing analyses" and he would like to be a conservative justice who want to look only at the disagreements between two parties and not go beyond the scope of that.
One of the important issues in the Ricci case was a standing issue, which was there standing to bring action if one had not been denied promotion?
Senator Hatch's attorney -- own attorney general joined with me in the brief because we thought that that was among the issues that were important and should have been followed under stare decisis. Instead the court expanded standing to someone who had not been harmed under the legal standard.
I think that that is important to consider. I think that it's important to note that, if they were going to change standing and standards, I think it's somewhat unfair to put emphasis on the footnote -- for instance, footnote 10 of Justice Ginsberg, which said that, if we are going to change the rules of the game, then we should remand the case back to be reviewed. But that wasn't critical of the second circuit (ph), in and of itself.
SPECTER: I regret...
MCDANIEL: So I agree with you about your -- your emphasis, or the...
SPECTER: I regret that there's so little time. Having Mayor Bloomberg and D.A. Morgenthau and (inaudible) Henderson (ph), we'd like to really have a chance to cross-examine...
... except that I agreed with your testimony.
Thank you, Mr. Chairman.