from the williams case? the court said that a priorities decision not to establish four capt. spam for promotion was not illegal because the reason he made that decision was not to promote the four white men. how is this different than the situation? >> [inaudible] >> how is that different from not establishing the captain's positions? it would have led to the appointment of the plaintiffs. >> not each one individually but one of three. >> we do not know that this is going to land. >> you knew that after the test. you knew what the test score was and what order they had come in.

the first copter had to be offered for promotion. one of the three had to be packed. >> what we do not know is where an alternative that we had a reasonable belief in. >> it has not told me where the board had any evidence to basic decision that a reasonable alternative existed. or would exist to improve these numbers. >> i think they have had several sources it is not so much the -- that there was a reasonable alternative. >> whose bird and is it to supply the reasonable alternative? >> it is the plaintiffs burden to show pretexts and to show that they are -- there are no other reasonable alternatives. that there are not -- they do not have testimony.

>> council argued there was not a reasonable alternative. do you think that was shifting of the burden? >> i do. even if we did not prove the existence of alternatives, we proved a reasonable belief in that which is what this court described in [inaudible] where even if you are offered a nondiscriminatory reason -- so long as it is made in good faith, have not established pretext. the fact he relied on is whether there were reasonable alternatives. this is not a reason [inaudible] even the belief in law would be a valid defense. >> what if you did not like the racial composition of the people

who finished at the top of the list? isn't that justice prohibited as discriminating against any racial class? >> no. the discriminatory purpose [inaudible] because of, not in spite of the adverse affects. as this court has held, any kind of measure against discrimination by its nature, by its design involves some [unintelligible] do we comply with the law and it is pretext. you had some intent to

discriminate because of our race. >> this begs a lot of questions. there have been many a case where the employers have the institute -- the courts have struck these down and even denied a good faith defense because they thought they had to remedy racial imbalance in some way. you cannot do it because it takes race into consideration. you have not answered my question of why this is different than williams were the court is saying you cannot use race to make an important -- employment decision. if you're reason is just racially motivated. basically, i read williams as saying you have to have some reasonable basis to conclude

that what you are doing is wrong. unless you have an alternative -- if you do not have the test is invalid and your recen -- you refused to say the test is invalid -- >> there has not been a steady. >> didn't someone in deposition say that it was fair? >> she is not qualified to talk about the issue. she is an examiner for the city. >> there was no evidence that the test was fair or job- related. >> that is correct. we're talking about challenging our measures so they would bear that burden. even -- whether or not it passed validation study is not the issue.

>> why is it not the issue? you have a charter that commands you -- the board has to certify a test that is valid. does that not say that the test is invalid before you use it and it is using race to make that determination is that not illegal? >> it takes into account the race of the candidates. it cannot be a race conscious remedy. any employer could do the exam.

there is a case in tennessee where the employer used to test that is presumptively discriminatory. they even went through a validation study. the court held they should have done what we did. frozen the promotions and replaced them with better and procedures. the issue was whether we should have known better alternatives. in that case, there was no testimony. do you think -- i want to

comment on williams for a moment. it talked about whether the defendant was immune from liability and there was no full analysis of equal protection. there is no mention of racial classifications. it is comparable to the rulings -- if you read it the way you do, it is inconsistent. the employer has a compelling interest in using voluntary measures for the past or present. there is no such requiring on that subject. you realize -- what the board did here is it took a sound legal opinion in good faith. the decision was the two members

[inaudible] we supplied affidavits from the decision makers that said they voted to not certified. to do so would be violating title vii. if you certify [inaudible] where there are [inaudible] you are violating federal law regardless of what the charter says or the union says. it trumps the municipal code. the board was found but that again is not the test. the test here is when you -- is whether there was a good faith belief in the nondiscriminatory reason. even if it was wrong. the mounting evidence it was clear.

the plaintiff had the burden to show that the reason was pretext. a lot of what this record is -- it does not create any issues as to the motivation here was to not violate the law. i do not think it is fair for the courts to second-guess good faith judgments. >> in conclusion? >> in conclusion, i believe the desire to eliminate the discriminatory impact on minority applicants is not the same as the intent to discriminate against non minorities.

there will shy away from efforts to [inaudible] the city did the right thing. they did not certify based on the presumptively -- they heard credible information. they have a good faith that is not disputed. think you for your time. >> i will try and keep you to the four minutes. since the 1980's case law in which the defendant covers [inaudible] to prevent the results this court once approved. [unintelligible] did you hear counsel allude to

hayden? >> it is the most formative facts. they said no one had taken the test it. the court said no one was hurt here. no one lost an opportunity. >> the judge said no one was hurt here either. >> if they did not refuse to fill vacancies, this would be lieutenants and captains. half of the marriages were strained. they spent two months holed up

in a room. a fundamental failure is the application of these concepts. this is a command position. the book to see piled on my desk are fire science books. these men face life-threatening circumstances every time they brought -- they go out. you need to know, this is not an aptitude test. this is a high level command position in the post-9/11 period. i opened the brave with the treatment -- with a plea to the

court to treat these men as if they were -- not treat these men as if there were unskilled labor. we trade firefighters as if it does not require knowledge to do the job. when they open? -- when i opened my brief, eddie ramos died [unintelligible] because [unintelligible] the nature of the pins that hold teh trusses together collaposed. the -- i am not being histrionic. that happens all the time. if you cannot pass an exam, there are substantive questions.

i think the only title-7 interest vice president dick cheney -- >> we're not suggesting that unqualified people be hired. the city is not suggesting that. there is a difference between where you score on the test and how many openings you have an to the effect and if -- the extent there is an adverse impact on one group or another so that this first seven who will be hired only because of the vagrancies of the vacancies of that moment, not because you are unqualified. the pass rate is the pass rate. but if your test is going to always put a certain group at the bottom of the pass rate so they are never going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why should

not the city have an opportunity to try to look and see if they could develop that? >> because they already developed it. >> it assumes the answer which is spent the test is valid because we say it is valid. >> they had evidence that that test was job-related invalid for use under title 7. >> you did not present an alternative. >> there are plenty of alternatives. they went back and said we had more vacancies. three african-americans. off that list. when they found out about that

-- they tried to hide it from me. it took me an order to extract that information because they refuse to give the source. they miscalculated vacancies. three hispanics and three mayor -- african americans were deprived of promotion. that is what we were trying to convince this court. >> you are saying finally at the end of this argument that when the city says the test had a disparate impact, it was pretext? is that we wiare saying? >> >> you said it was pretextual? >> that had nothing to do with the decision.

>> this test greeted disparate impact, it was the pretext for other reasons? >> it was. >> that is your argument. you think you have carried the final [unintelligible] but proving it is protection will and you have to prove it is discriminatory and that is your argument. >> here is how i look at it. if we learned anything from the court -- [unintelligible] the[unintelligible] when applications applies the

almost always felt. the supreme court has given clear direction it will not allow circumstances [unintelligible] before the government could ever use race. the race of an individual or group. and they make a decision as they did here. you need a strong basis. it must not unduly harm minorities. the could not meet the criteria. not one. if you care about minorities, [unintelligible] that you just deprive three latinos and two african- americans? that is your cue about what the real motive is. why not come back and say we were mistaken? we just deprived six minorities

of a job. why did they come to them and say let's go to union. if there is one principle, even if you can go to our remedial measure, even if you had a ris [unintelligible] it remains that the directive of the u.s. supreme court is you must use it nearly and have a tight fit between the remedy and the ill and you must not displace the innocent. they then went to the most drastic remedy of depriving everyone. everyone. >> this is where we will have to stop. >> thank you, your honor. >> you can watch this or other c-span programming at any time

by visiting our web site. look in the featured topic section under supreme court. join aziz saturday evening for -- join us each saturday evening for "america and the courts." next, remarks from supreme court justice john roberts followed by a speech by justice ruth bader ginsburg. later, the former bush administration justice department official talks about judge sonia sotomayor's nomination to the supreme court. >> tomorrow, we will talk to john nagl about the withdrawal

of troops from iraq. then the president of the center for international policy talks about the situation in honduras and colombian president uribe's visit to the u.s.. later, dalia lithwick. each morning at 7:00 a.m. eastern with the day's news. a look at iran's presidential election and what is ahead in tehran. >> next, a conversation with u.s. supreme court justice john roberts on some of the court's decisions. he is joined by judge harvey wilkinson. serving on the fourth circuit court of appeals. it is over 30 minutes.

>> could we have you take your seats, please? >> good morning. we have a very extra special program this morning. and it will focus entirely on the supreme court. chief justice marshall worried that the supreme court's role in the tripartite government would not be fulfilled if the court continued issuing multiple opinions. one from each justice. as was the custom in england at the time.

he thought it important that the court speak unanimously as an institution. his strategy for achieving this basic and it was a fundamental strategy, he conference cases after dinner. after serving wine which he personally purchased and brought to the court. in that state of euphoria, the court was able to work through the problems and issue and resolve differences and issue opinions that were for the large part in natomas. in retrospect, the chief justice was impressively successful during a particularly active period from 1811 to 1823. the supreme court decided 457 case of which 23437 were

unanimous. as chief justice roberts observed a few years ago, and i am not quoting, if the court in marshall's era had issued decisions the way this court has over the past 30 years, we would not have a supreme court today of the sort that we have. that suggests that wouldwhat the court has been doing is eroding the capital that to marshall built up. i think the court is also right for a similar refocus or functioning as an institution because of it does not, it will lose its legitimacy as an institution. chief justice roberts was exhorting a return to the notion

that the supreme court speak as an institution. i must say from my own observations, i believe the chief justice is making significant progress, although this is a task that of course takes time. this morning, we will begin our session with an interview with the chief justice by our former chief judge jay wilkinson. then we will move into our traditional panel on the supreme court which is moderated by professor dick howard to discuss the supreme court's turn. there are three cases to hand down and i understand we're looking to monday to hear about this. at this point, i would like to welcome to the stage judge wilkinson and the chief justice of the united states. [applause]

>> thank you. >> thank you. >> good morning, everyone. we're absolutely delighted to have the chief justice of the united states here to kick off our program on the review of the supreme court term. we will have a q&a session. a few questions for me to start off and i would like to throw it open to the audience to ask some questions of the chief justice. surely you have had one in mind. and then we will have a wonderful panel that will be moderated by a longtime friend, dick howard.

i do not think you can have -- find any other better panelists. it will discuss replacement and retirements. and the past supreme court term. we are very proud that our panelists of this caliber will join us for this occasion and we're delighted as always to have our friend and circuit justice, the chief justice. sometimes it is hard to get the judge's to be unanimous about anything. i think you can say about judges sometimes which you can say about legislators, getting them together on something is like herding cats. if there is one thing that those of us in the federal judiciary

argue now, it is our respect, affection for the chief justice. he is someone of great warmth and great humor. and enormous legal skills. and one of the things i think we respect so much about him is he has an essential sense of the dignity of the job. those of us in the federal judiciary anto a person are absolutely -- we feel it is our great fortune to have someone of the chief justice's caliber leading our system. i have a few questions of you. you mentioned last night in your remarks that one of the things that you had accomplished was to follow the calendar of the supreme court so --