on june 8, he broke the law -- an association required no organizational structure beyond the defendant's predicate acts and the city of new york held unanimously that a plaintive not joined by the government, has the usual 30 days and not the 60 days to file a notice of appeal. . .

to what they did, not what johns mandel did. next, in cuomo v. clearing-house soshejation, the clerk -- the court is considering a provision of the national bank act limiting the state's exercise of powers over national banks. interpreting this provision, the office of the comptroller of the currency adopted a regulation prohibiting states from enforcing against national banks, federal or state, federal

or state laws, governing banking activities. the comptroller invoked this regulation to gain a federal court injunction against the new york attorney general. when that officer attempted to investigate national bank's lending practices for violations of state and federal anti-discrimination laws. the second circuit affirmed the injunction in principal part, holding the comptroller's regulations reasonably interpreted the ambiguous term viztorial powers. finally, ritchie v. destefano concerns the city of new havep's decision not to certify the racially skewed results of a promotional examine for firefighters. ritchie and his fellow plaintiffs, mostly white, performed well on the exam.

most african americans and hispanic test takers scored low. the city asserted it if it -- if it certify fied the test results it would be stouget a title 7 disparate impact suit. disappointed minorities would target the examination's failure to identify and accurately test for the skills most relevant to leadership posts. ritchie, on the other hand, sees the city's refusal to certify the test results as a clear case of reverse discrimination prohibited by title 7 an the equal protection clause. new haven prevailed on summary judgment in the district court and the second circuit affirmed, relying on the opinion of district judge artson.

the supreme court decision, one can safely predict, will be among the last to come out this term. in addition to the nine second circuit cases the court heard this term, we reviewed 15 cases raising questions on which the circuit had issued an opinion. we agreed with the sec circuit in seven of those and disagreed in four. one of the four still to be decided is forest grove school district v. t.a. that case raises a question that divided the supreme court 4-4 last term when we considered the second circuit's decision in board of education v. tom f. the question presented, under the individuals with disabilities education act whey may parents gain reimbursement for private school tuition when their child had not previously

received special education in the public school. next term we have already granted petitions in three cases from the second circuit, first, reid elesver v. muchnik, where we'll decide whether they have copyright infringe -- infrinthment over class acts when most members of the class haven't registered their copyrights. in hemme group v. city of new york, we'll consider whether the city can meet rico requirements by alleging injury from nonpayment of taxes. third, shady grove orthopedic associates, the allstate insurance company, presents an issue procedure teachers will follow with rapt attention.

may a state legislature forbid recourse to class actions for claims arising under state law but filed as diversity cases in federal courts. that completes my report on the 2008 to 2009 term and i invite judge livingston and judge kravitz to join me in conversation. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> you're watching public affairs programming on c-span. up next, from the federalist society of dallas a former bush administration justice department official talks about judge sonia sotomayor's nomination to the supreme court. after that, secretary of state

clinton talks about honduras and iran. later, president obama announces new energy efficiency standards for light bulbs. >> tomorrow morning, a discussion of energy policy, we'll hear from jon wellinghoff, live coverage at 9:00 eastern on c-span2. later, a conversation on iran's nuclear program and the political situation in tehran. live coverage from the heritage foundation begins at 10:00 eastern, also on c-span2. >> thomas dupri, a former bush

administration justice department member talks about judge sotomayor's nomination for the supreme court. he spoke for about 40 minutes. >> hello and welcome. my name is dan mornoff, president of the dallas chapter of the federalist society. i'm glad you've been able to join us for what i think and certainly hope you'll agree is a timely and well, i hope you agree interesting event. the genesis for this event was may 1 announcement by justice souter, or as i like to call him, the jus tits who should have been edith jones, that he's resigning if the supreme court. he's been serving since 1990. that makes him the fourth longest serving member of the current court, which helps to drive home that in this particular job, the expression lifetime tenure is often literal.

that does also draw home how important the members of the court are and when on may 26, president obama nominated judge sotomayor from the second circuit exeal to -- court of appeals to replace him on the supreme court that gave us some focus as to what exactly a justice sotomayor might be like, what the confirmation process for her would be like and what this would mean for the future of the court. fortunately, we have with us a guest who is in from washington who is more than qualified to talk about all those subjects. i'm proud to be able to introduce to you the honorable thomas h. dupree jr., former assistant attorney general of the united states. he's a graduate of williams college as well as the university of chicago law school who once clerked for jerry smith at the fifth circuit court of appeals. in his private practice he played a key rolle in bush v. gore, more recently in his stint in the federal government he

oversaw the civil division of the department of justice, including the civil appellate practice of justice. he's appeared in front of the supreme court as well as all 13 of the united states court of appeals, especially, i should note, he's appeared in front of judge sotomayor in front of the second circuit. he's got a great deal of background here, i'm interested in what he has to say, i hope all of you are as well. let's give him a warm welcome to the dallas clapter, tom dupree. [applause] >> good afternoon. thank you very much for inviting me here today and thank you, dan, for that kind introduction. it's always a pleasure for me to return to texas, as dan mentioned, i clerked a little bit down the road in houston. it's wonderful to come back and have a chance to catch up with many old friends and escape the

summertime heat in washington, d.c. thank you very much for having me here today. what i thought i'd do is talk a little bit about president obama's -- the way he selected judge sotomayor to fill the souter vacancy and speak about the confirmation process and what we might anticipate as that gos forward. then i'd like to offer observations and thoughts as to the way judge sotomayor if confirmed, is likely to approach the law and constitution as a justice of the supreme court. then i certainly want to make sure i allow ample time for questions since i know these are issues that interest all of us, i'll be sure to leave enough time to hear what's on your mind. as we stand here today, i think it's fair to say that absent an 11th hour surprise or some remarkable development that judge sotomayor is poised to become the next justice or

newest justice of the spourt. justice souter announced his decision to retire in early may. i think that neither the fact of his resignation nor the timing was a particular surprise. i think a lot of people in washington anticipated this. i say the timing wasn't a surprise, because i think it's certainly a fair inference that justice souter timed his resignation so as to permit president obama to choose his replacement, or at least permit a president other than president bush to choose his replacement. i say it's a fair inference because he resigned at effectively the first opportunity the he had to d do so in a post bush world. i think the fact of his resignation was not a particular surprise either. justice souter always said he looked forward to returning to his home state of new hampshire he never particularly enjoyed being in washington, at least that was certainly the impression he often conveyed.

the always -- he always said he wanted to retire and go home at a time when he was young enough to go hiking in the mountains and enjoy the outdoors. as far as justice souter's legacy goes, justice souter was known for being a one-case -- one-case-at-a-time justice he didn't write in a general sense or issue, sweeping opinions. that's not to say it didn't have important opinions. he issued one very important opinion, or joined it, when he joined a three-justice plurality in a decision that uphold roe v. wade. he had other decisions, one that hasn't perhaps gone unnoticed, but hasn't got a lot of attention, but the opinion he issued in the glockster case he addressed the idea of file

sharing. it was remarkable and in some cases ironic that it was fashioned by justice souter, who shows himself as a man of the 19th century he had a chance to provide long-standing context to something like this. i think he got it right. i think his legacy will be, in many ways, the influence he had on the confirmation process. when he was nominated by the first president bush, he was a home run for conservatives. i think it's fair to say he was not a home run for conservatives. i don't know if he intended a single or a double. i think that that aspect of his service will have long-term ramifications. we may already have seen it in president obama's decision to nominate judge sotomayor in the sense that the president, and

there certainly were a number of factors playing into the decision, but one may be that judge sotomayor had a long track record of published opinion as a judge. that may have given the president some added confidence that what he thought he was getting or will be getting is in fact what he gets. that may have pushed him more toward appointing judge sotomayor than janet napolitano or other finalists who didn't have the extensive track record of published opinions jouge sotomayor does. the moment justice souter announced his resignation, all sorts of activist groups sprang to life and began what cab characterized as a concerted effort to circumscribe as the permissible choices of candidate from which president obama could

make a selection. a lot of groups insisted he should appoint a minority candidate or a woman. i should add this was not confined to activist groups. many members of the senate made their views known. shortly after justice souter announced his retirement, senator specter when on "face the nation," and said the president can make his own choice but he needs to appoint a minority or a woman. the white house was forced to issue a remarkable statement with a -- where they said publicly that all this lobbying was, quote unquote, counterproductive and everyone was really pushing the president in a public way toward one of their preferred choices, they needed to knock it off and cut it out. a few hour that was white house made that somewhat extraordinary statement, senator barbara boxer sent out a tweet on twitter where she urged her supporters to sign an online petition telling the president to appoint

a woman. i don't know if the message got as far out as the president hoped or maybe some people heard it and chose not to follow his request. the consequence was the president may have perceived his choice to be nor roed in that if he didn't choose a woman or a minority he may have been faced with a significant backlash from key morgses of his constituency. now out of all of this, this confusion and chaos and this frenetic lobbying, judge sotomayor emerges. introducing her to the american public, the president spoke of her background. he has since characterized her as having more experience, being a more experienced nominee than any justice, any nominee to be a justice to the supreme court in a century. she certainly has an impressive background, no getting around that. she was raised in humble circumstances in the bronx. she graduated from princeton university and yale law school.

she went on to serve as an stonet district attorney in manhattan, had a stint in private practice where she litigated mostly intellectual property cases. she was appointed to the new york district court by the first president bush. at the time, there was a a -- an arrangement from the republican senators and the democrats from new york, where the republicans put forth three nominees and the democrats chose one, she was the democrat nominee. she served until 1998 when she was elevated to the second circuit by president clinton. one interesting thing in introducing justice sotomayor we've seen is that the president focused and the white house as a whole focused on her experience and qualify case -- qualifications, which represents

a change from what president obama, candidate obama spoke about in a campaign. when asked what quality he'd look for in appointing a supreme court nominee, he said empathy. that's what he wanted in a justice. that's interesting because every thi is one of those words that on its face has a neutral or favorable connotation, who could oppose a justice with empathy. but he was using empathy in a careful sense, he was speaking in code that he would appoint a justice who would reach certain outcomes, often viewed as liberal political outcomes in a lot of cases. i think it's fair to say when the president talked about empathy, he was not talking about empathy for the crime victim or empathy for the taxpayer, he was not talking about empathy for the plot owner. what's interesting is that the white house in the last few weeks back shelved the notion of

empathy and put the spotlight more on where i think it should be, frankly, on her experience, her abilities, on her qualifications. now one interesting thing in rolling out justice sotomayor, overall the white house has done a good job of it. not to say there hasn't been bumps in the road. there was one exchange, i can't resist quoting it. the day they announced the nomination of justice sotomayor, robert gibbs, the white house press secretary, held his daily press conference at the white house, you can see from his perspective, there was a historic day. the president nominated a woman who if confirmed would be the first hispanic supreme court justice. he gets to the podium and takes a question from helen thomas.

robert gibbs gets up there, says, the president believes that judge sotomayor's life story is a compelling one and her voice will be an important addition to the supreme court. then he calls on helen thomas. question, did she pay her taxes? mr. gibbs said, pardon me? question, did she pay her taxs? mr. gibbs, well, i have not seen anything on that. in fairness, i should know -- i should note that it appears jouge sotomayor has paid her taxes, so there's some complain that she's had life experiences other obama nominees have not. there were more serious issues that emerged in the rollout process two. issues concerned comments she made not in the context of a written judicial opinion but comments she made in articles.

the first was her statement she made at berkeley law school where she said, i would hope that a wise latino woman, with the richness of her experience, would more often than not reach a better conclusion than a white man who hasn't lived that life hsm second was at duke law school she said the court of appeals is where policy is made and quickly added, i know this is on tape and i should never say that. now, i think both of these comments certainly raise concerns. i think both of these comments present perfectly legitimate areas of inquiry for senators during judge sotomayor's confirmation hearing. the senate and individual senators have an obligation to evaluate the nominee for themselves. it's part of the constitutional advise and consent process. i don't think it's in any sense disrespectful for the senators to ask good, hard, tough but fair questions. i think that judge sotomayor would no doubt welcome the

opportunity to clarify her comments and explain what she meant. one interesting thing about the confirmation process that we've seen in recent years, certainly the extent to which it's becoming a partisan, politicized event, it wasn't always this way. one thing we've seen a lot is that i think many individual senators use the confirmation process as an opportunity to talk about their view of the law. there was one wonderful statistic, it was a terrific and telling statistic where what they did was went out and quantified the amount of time, i think this was in the context of the alito hearings, they quantified the amount of time in which the senators spoke in the confirmation hearings relative to the time the nominees spoke. there were some senators whose allotted time they used 95% of their allotted time to ask a

question and permitted only 5% of their allotted time for a response. at the end of these hearings, many times i think the american public simply didn't really have a handle on what the nominee's actual views were, whereas everyone had a clear idea of what, say, senator biden's views were, just to take a random example. it will be interesting to see whether the sotomayor confirmation plays out in that respect. there's an old saw in washington circles about when you're advising an a nominee that nay need to follow an 80/20 rule that means that nominee, make sure that the senators are speaking for 80% of the time, at least, and that you're not speaking for more than 20% of the time buzz if you are, your nomination is in trouble. it'll be interesting to see if that dynamic plays out in the contest of the sotomayor hearings. i said a moment ago that the

hearings have become politicized and partisan which is regrettable. we saw in the bjork hearings in the 1980's, but then we had a period in the 1990's, in terms of the two clinton appointees to the supreme court where a lot of sectors were -- senators were able to put partisanship aside. when president clinton nominated justice ginsburg, here was a woman, clearly qualified, a distinguished background, she was at the time a judge on the d.c. circuit and even though many senators no doubt disagreed with her philosophically, there was no question she's on the liberal end of the spectrum she said, look, elections have consequences, presidents are entitled to appoint a judicial nominee who share theirs views and at the end of the day, the confirmation vote was 97-3 in favor of confirmation. justice breyer, another judge who clearly by any standard has

a distinguished track record, he had served as an aide in the u.s. senate and went on to be a judge on the first circuit, he was confirmed by a vote of 87-9. then we look at what happened during the bush era, where president bush apinted two -- appointed two people to the supreme court, first, chief justice roberts, at the time a judge on the d.c. circuit and prior to that had a distinguished career in private practice where he was widely acknowledged as one of the fore massachusetts most supreme court advocates of his generation. his confirmation vote 78-22. there were a lot of senators who acknowledged his credentials and competence but presumably because they disagreed with him philosophically refused to vote for him. justice alito, a sitting judge on the third circuit, long, distinguished track record, served as a federal prosecutor among other things. his confirmation vote was 58-42. in the span of just a little

over a decade, we've gone from a three votes in opposition to justice ginsburg and then on the other side, justice alito who at the risk of overgeneralization is a mirror image of justice ginsburg, he's on the conservative side but both were circuit court judge he had 42 votes in opposition. there's one interesting comment made during the roberts hearings. there was one senator who took to the floor i thought to offer lavish praise in support of justice robert's nomination, he said, and i quote, there is absolutely no doubt in my mind that judge roberts is qualified to sit on the highest court in the land he is humble, he is personally decent and he appears to be respectful of different points of view. that senator wevent on to vote against confirming chief justice roberts. the senator i just quoted is now president obama. so it will be interesting to see

how the senators freet the situation when the shoe is on the other foot and you have a nominee with a distinguished background, excellent credential, yet there are no doubt many senators who may disagree with her philosophically. i think it will be interesting to see how the republicans hand they will situation in the weeks ahead. now i'd like to talk a little bit about judge sotomayor's philosophy. as dan mentioned in the introduction, i've argued a number of case, five appeals before judge sotomayor. when i was in the justice department, i ran a branch that was before her a lot. she was on my mind certainly in the last few weeks, i spent a lot of time immersing myself in her opinions, trying to get a sense of how she thinks about the law and the constitution. of course it's always somewhat difficult, i think, at this stage to predict with 100%

certainty how a sitting judge would act if confirmed to the supreme court. that's so for a number of reasons. one is that, of course, you're dealing with a relatively small sample size in the sense that it's not as though she has had dozens of decisions addressing, you know, the abortion issue, gun control, things of that nature. you're working from a small sample size. the other complicating factor is that a court of appeals judge is, in theory, bound by supreme court precedent. there's always the possibility that a judge, when elevated to the supreme court and when those restrictions are -- or boundaries are removed so to speak, and they are free to resolve things in the first instance, would approach the law somewhat differently. subject to those two qualification, let me offer some thoughts. i think judge soto