KYL:
Mr. Chairman, before I begin, for those who are watching this on television, I would just note that I don't think we put Judge Sotomayor on the hot seat with our questions, but we certainly did with the temperature in this room yesterday. (LAUGHTER) And for that, I apologize. And I note that it could get a little steamy this morning too. I know it's cold back there, but it's not at all cool where we are.

LEAHY: If I can respond to--

KYL: If there's ever a question about Judge Sotomayor's stamina in a very hot room, that question has been dispelled without any doubt whatsoever. (LAUGHTER)

LEAHY: If I might -- and I'll have to set the clock back for 20 minutes so this doesn't go into your time -- but it -- it is really an interesting thing because anybody that's gone up where the press are, it's like an icebox up there. And I'm hoping we can get this -- at least the microphone is working. I want to thank Senator Sessions for offering me his microphone yesterday, but that didn't work.

And I want to thank Senator Franken for letting me use his. So if we start clock back over so I don't take this out of Senator Kyl's time. Senator Kyl, please go ahead.

KYL: Thank you, and good morning, Judge.

SOTOMAYOR: Good morning.

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 2nd 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 2nd Circuit precedent when you voted each time to reject the firefighters' civil rights complaint?

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 2nd 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 2nd Circuit precedent. What was it? There is no Supreme Court precedent. And as the court itself noted, they could find few, if any, 2nd 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.

KYL: Let me interrupt again, because you're not getting to the point of my question. And I know, as a good judge, if I were arguing a case before you, you would say, "That's all fine and dandy, counsel, but answer my question."

Isn't it true that -- two things -- first, the result of your decision was to grant summary judgment against these parties? In other words, it wasn't just a question of whether they had the right to sue; you actually granted a summary judgment against the parties.

KYL: And, secondly, that there was no Supreme Court precedent that required that result. And I'm not sure what the 2nd Circuit precedent is. The Supreme Court said few, if any. And I -- I -- I don't know what the precedent would be. I mean, I'm not necessarily going to ask you to cite the case. But was there a case? And if so, what is it?

SOTOMAYOR: It was the ones that we discussed yesterday, the bushy line of cases that talked about the prima facie case and the obligations of the city in terms of defending lawsuits claiming disparate impact. And so, the question then became how do you view the city's action. Was it a -- and that's what the District Court had done in its 78-page opinion to say you've got a city facing liability --

KYL: OK, all right. So, so you contend that there was 2nd Circuit precedent. Now, on the en banc review, of course, the question there is different because you're not bound by any three- judge panel decision in your circuit. So what precedent would have bound -- and yet, you took the same position in the en banc review.

For -- for those who aren't familiar, a three-judge court decides the case in the first instance. In some situations, if the case is important enough, judges on -- the other judges on the circuit -- there may be nine or 10 or 20. I think in the 9th Circuit there are like 28 judges in the circuit. And you can request an en banc review. The entire circuit would sit.

And in that case, of course, they're not bound by a three-judge decision because it's the entire circuit sitting of 10 or 12 or 20 judges. So what precedent then would have bound in -- bound the court in the en banc review?

SOTOMAYOR: The panel acted in accordance with its views by setting forth and incorporating the District Court's analysis of the case. Those who disagreed with the opinion made their arguments. Those who agreed that en banc certification wasn't necessary voted their way. And the majority of the court decided not to hear the case en banc.

I can't speak for why the others did or did not take the positions they did. They -- some of them have issued opinions. Others joined opinions.

KYL: But you felt you were bound by precedent?

SOTOMAYOR: That was what we did in terms of the decision, which was to accept the rule -- the -- not accept, but incorporate the District Court's decision analyzing the case and saying we agreed with it.

KYL: Understood. But the District Court's decision is not binding on the circuit court. And the en banc review means that the court should look at it in light of precedents that are stronger than a three-judge decision. So I'm still baffled as to what precedent you're -- you're -- you're speaking of.

SOTOMAYOR: Perhaps it's -- just one bit of background needs to be explained. When a court incorporates as we did in a per curiam, a district court decision below, it does become the court's precedent. And, in fact, the --

KYL: The three judges?

SOTOMAYOR: Yes, but when I was on the District Court, I issued also a lengthy decision on an issue, a constitutional issue, direct constitutional issue that the circuit had not addressed and very other few courts had addressed on the question of whether etbus (ph) statute of limitations on habeas (ph)...

KYL: OK. If you excuse me, we're -- I apologize for interrupting, but I've now used half of my time. And you -- you will not acknowledge that even though the Supreme Court said there was no precedent, even though the District Court judgment and a three-judge panel judgment cannot be considered precedent binding the en banc panel of the court, you still insist that somehow there was precedent there that you were bound by.

SOTOMAYOR: As I explained, when the circuit court incorporated the District Court's opinion, that became the court's holding.

KYL: Of course.

SOTOMAYOR: So, it did become circuit holding. With respect --

KYL: By three judges.

SOTOMAYOR: With respect -- yes, sir. I'm sorry. With respect to the question of precedent, it must be remembered that what the Supreme Court did in Ricci was say, "There isn't much law on how to approach this should we adopt a standard different than the circuit did," because it is a question that we must decide how to approach this issue to ensure that two provisions of Title VII are consistent with each other.

That argument of adopting a different test was not the one that was raised before us, but that was raised clearly before the Supreme Court. And so that approach is different than saying that the outcome that we came to was not based on our understanding of what it make out a prima facie case.

KYL: Well, if it's a matter of first impression, do judges on the 2nd Circuit typically disposed of important cases of first impression by a summary one-paragraph order per curiam opinion?

SOTOMAYOR: Actually, they did in one case I handled when I was a District Court judge.

KYL: Would that be typical?

SOTOMAYOR: I don't know how you define typical, but if the District Court opinion, in the judgment of the panel, is adequate and fulsome and persuasive, they do. In my Rodriguez v. Artus (ph) case, when I was at District Court on the constitutionality of an act by Congress with respect to the suspension clause of the habeas provision, the court did it in less than a paragraph. They just incorporated my decision as the law of the circuit, or the holding of the circuit.

KYL: Well, let me quote from Judge Cabranas' dissent. He said, "The use of pro curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straightforward questions that do not require exploration or elaboration by the court of appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well settled."

I guess legal analysis -- analysts are simply going to have to research and debate the question of whether or not the cases of first impression or complex important cases are ordinarily dispensed of that way.

Let me just say that the implications -- the reason I address this is the implications of the decision are far-reaching. I think we would all agree with that. It's an important decision, and it can have far-reaching implications.

Let me tell you what three writers, in effect, said about it and get your reaction to it. Here is what the Supreme Court said in Ricci about the decision, about the rule that the -- that your court endorsed.

It said that the rule that you endorsed, and I'm quoting now, "Allowing employers to violate the disparate treatment prohibition based on a mere good-faith fear of disparate impact liability would encourage race-based action at the slightest hint of disparate impact." This is the Supreme Court. "Such a rule," it said, "would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race. Even worse, an employer could discard test results or other employment practices with the intent of obtaining the employer's preferred racial balance."

Your colleague on the 2nd Circuit, Judge Cabranas, said, that, under the logic of your decision -- I quote again -- "municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable racial income." In other words, failed to satisfy a racial quota.

That's why the case is so important. I mean, I would imagine you would hope that that result would not pertain. I guess I can just ask you that, that you would not have rendered this decision if you felt that that would be the result.

SOTOMAYOR: As I argued -- argued -- as I stated earlier, the issue for us, no, we weren't endorsing that result. We were just talking about what the Supreme Court recognized, which was that there was a good-faith basis for the city to act. It set a standard that was new, not argued before us below, and that set forth how to balance those considerations.

That is part of what the court does is in the absence of a case previously decided that sets forth the test. And what the court there said is good faith is not enough.

KYL: Understood.

SOTOMAYOR: Substantial evidence is what the city has to rely on. Those are different types of questions.

KYL: Of course. And the point is you don't endorse the result that either Judge Cabranes or the Supreme Court predicted would occur had your decision remained in effect. I'm sure that you would hope that result would not pertain.

SOTOMAYOR: Yes. But I didn't -- that wasn't the question we were looking at. We were looking at a more narrow question which was, could a city, in good faith, say we're trying to comply with the law. We don't know what standard to use. We have good faith for believing that we should not certify.
Now, the Supreme Court has made clear what standard they should apply. Those are different issues.

KYL: Well, I'm just quoting from the Supreme Court about the rule that was -- that you endorsed in your decision and, again, it said the Supreme Court said about your rule that such a rule would amount to a de facto quote system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race. Even worse, an employer could disregard test results or other employment practices with the intent of obtaining an employer's preferred racial balance.

I guess we both agree that that is not a good result. Let me ask you about a comment you made about the dissent in the case. A lot of legal commentators have noted that, while the basic decision was 5 to 4, that all nine of the justices disagreed with your panel's decision to grant some rejudgment; that all nine of the judges believed that the court should have been -- that the district court should have found the facts in the case that would allow it to apply a test. Your panel had one test. The Supreme Court had a different test. The dissent had yet a different test.

But in any case, whatever the test was, all nine of the justices believed that the lower court should have heard the facts of the case before some rejudgment was granted. I heard you to say that you disagreed with that assessment. Do you agree that the way I stated it is essentially correct?

SOTOMAYOR: It's difficult because there were a lot of opinions in that case. But the engagement among the judges was varied on different levels. And the first engagement that the dissent did with the majority was saying if you're going to apply this new test, this new standard, then you should give the circuit court an opportunity to evaluate the evidence --

KYL: Judge, I have to interrupt you there. The court didn't say, "If you're going to apply a new standard, you need to send it back." All nine justices said that summary judgment was inappropriate, that the case should have been decided on the facts.

There were three different tests: the test from your court, the test of the majority of the Supreme Court, and the test of the dissent. Irrespective of what test it was, they said that the case should not have been decided on summary judgment. All nine justices agreed with that, did they not?

SOTOMAYOR: I don't believe that's how I read the dissent. It may have to speak for itself, but I -- Justice Ginsburg took the position that the 2nd Circuit's panel opinion should be affirmed. And she took it by saying that, no matter how you looked at this case, it should be affirmed. And so I don't believe that that was my conclusion reading the dissent, but obviously, it will speak for itself.

KYL: Well, it -- it -- it will. And I guess commentators can -- can opine on it.

I could read commentary from people like Stuart Taylor, for example, who have an opinion different from yours. But let me ask you one final question in the minute and a half that I have remaining.

I was struck by your response to a question that Senator Hatch asked you about yet another speech that you gave in which you made a distinction between the justice of a district court and the justice of a circuit court, saying that the district court provides justice for the parties, the circuit court provides justice for society.

Now, for a couple of days here, you've testified to us that you believe that not only do district and circuit courts have to follow precedent, but that the Supreme Court should follow precedent.

So it's striking to me that you would suggest -- and this goes back to another comment you made perhaps flippantly about courts of appeals making law -- but it -- it would lead one to believe that you think the circuit court has some higher calling to create precedent for society.

In all of my experience, you have Smith v. Jones in a district court. The court says, "The way we read the law, Smith wins." It goes to the court of appeals. The court has only one job to decide: Does Smith win or does Jones win?

It doesn't matter what the effect of the case is on society; that's for legislators to decide. You have one job: Who wins, Smith or Jones, based on the law? And you decide, "Yes, lower court was right. Smith wins." 

You're applying precedent, and you're deciding the case between those parties. You're not creating justice for society, except in the most indirect sense, that any court that follows precedent and follows the rule of law helps to build on this country's reliance on the rule of law.

SOTOMAYOR: I think we're in full agreement. When precedent is set, it's set -- it follows the rule of law. And in all of the speeches where I've discussed this issue, I've described the differences between the two courts as one where precedents are set, that those precedents have policy ramifications, but not in the meaning that the legislature gives to it.

The legislature gives it a meaning in terms of making law. When I'm using that term, it's very clear that I'm talking about having a holding, it becomes precedent, and it binds other courts. You're following the rule of law when you're doing that.

KYL: Mr. Chairman, I'm over the time, but just a final follow-up question, if I could. 

You yourself noted that you have created precedent as a district court judge. Both district courts and circuit courts create precedent simply by deciding a case, but they're both required to follow precedent, isn't that correct?

SOTOMAYOR: Yes. (More to Come)