there have been several instances worst bureau people broke down in tears when i asked how the economy has affected them directly. in has been incredibly difficult to pay off loans or find that first house or first job. but i think the message from our survey is that the big picture issues will not necessarily change for the better and the cn people are using incredible political clout to make it so. there is a huge demographic opportunity to change politics. host: robert is 21 in virginia beach. can you make it quick? caller: i just want to say that i feel that politicians do not play to the interest of young people, such as student loans and the cost of rising edition.

-- the rising cost of education. caller: i do not think they will unless you make them. again, i think there, the responsibility as a two way street. host: john della volpe, polling director with harvard institute of politics. thank you for your time. we appreciate it. that does it for today's "washington journal" and we would about tomorrow. -- and we believe dr. amar. thanks for watching. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011]

>> it is monday, april 4. both houses of congress are back in session today. the house is in at noon for general speeches and legislation work. one bill on the calendar, which would cut 10% from the pentagon's printing budget. later this week, members will consider repealing the fcc's net neutrality rules, as well as it rose allow the epa to regulate greenhouse gas emissions. the senate also cavils in today at 2:00 p.m. lawmakers will be considering a judicial nomination in addition to general speeches.

follow c-span on twitter. it is the fastest way to get programming and scheduling updates. you can also join in on the conversation and tweet your questions in directly to us. get started at twitter.com/cspan. >> tonight on "the communicators" michael copps on the proposed at&t and t mobil merger. >> what concerns me is this sucks the oxygen out of so many positions pending the fcc. we can chew gum and walk at the same time, i guess, but this affects so much of what we're doing. >> the c-span networks. we provide coverage of public

affairs, nonfiction books, and american history. it is all available to you on television, on-line, and on social networking media websites. and we take c-span on the road with our digital bus local content vehicle. it is washington, your way. created by cable, provided as a public service. kentucky senator rand paul was the keynote speaker at a fund- raising event in iowa on saturday, hosted by the state republican party. he talked about people in american history at believed in what they spoke about and talked about not compromise the ideas.

>> the person i am about to introduce believes in putting the constitution before everything else. [applause] you realize they gave me a couple of minutes to say something? first of all, i owe it to all of you, probably thousands of people who are not here, forbid for giving me the privilege to serve you in the iowa state senate. thank you very much. also, a memory for tonight is this is the first time in 12 years i have been able to be on the same stage of a republican governor from iowa. thank you for wanting to serve, and more importantly, for working hard to make sure that you got elected and turned i was around. i know that you are going to turn us around.

if there is one thing i can ask you to remember, if you do not read anything else, as we are three months into this session, another 18 to go until the next election, in my mind, that is presenting this 22% increase in appropriations that the democratic congress and democrat president of the last two years have forced on people. 22% on top of a $14 trillion deficit -- i mean, stimulus that did not work, keeping the unemployment over 8%. and also, for the debt that we have for 50 years, 35% of gross national product. maybe most of you would think that is too much, but today it is 65, and on a path to be 95.

our goal over the next two years has to be to preempt that 22%, get back to 2008 levels of expenditures, and freeze for five years after that, and even maybe do better. at least i am telling you what my goal is. also, to get this debt down so we do not leave this legacy to our kids. now, introducing my distinguished colleague -- i want to say some specific things about him. i want to put it in the context -- i hope that you know, and i hope the last three months have proven this. i hope the next 18 months proves it for sure. elections are supposed to have consequences, or what is the point of having them? as a result of the last election, the new people that were elected, like our

distinguished speaker, as well as 83 new house members, if you want to put it in historical context, it is the greatest number of people elected to congress, new people, since 1938, the largest number of people elected to all the state legislatures since 1928. so it is a watershed election. [applause] again, if you just remember one thing, we get it. these 83 new people, these nine new republicans in the senate, approve this better than i can. when leadership ought to think -- things something ought to be done, check with the new members. leadership thought, we are going to be pretty good, if we do what we did not do before, by cutting $40 billion of

expenditures. leadership in the house takes it to the caucus. listen, mr. leader, we ran on a platform of cutting $100 billion, and we are going to cut $100 billion. do not count on our vote. [applause] so these people are committed to what they were elected on. and it is good for all of us, let me tell you. it is good for all of us to have people stand up and say, where in the constitution does it say we have the right to do this? is this the right thing to spend money on? now listen, what you will say to chuck grassley is, why does it take a bunch of new people to tell you ought to be doing that? well, it shouldn't, and maybe it doesn't regularly, except, it has never been a part of the

thought process every day, like it is now, and that is what is different. [applause] that brings me to our distinguished senator from kentucky, rand paul. so far, he is not as famous as his dad, but i bet he will be. now, he graduated from baylor, caught his medical degree from duke medical school, he is an ophthalmologist, he is a person that i think, being for eye surgery, is focused well on the constitution and not spending money.

i think we can give him some credit, maybe all the credit, for the fact that when he spoke in boston in 2007, he said, we need a modern day revolution. what he meant by a modern day revolution was, do it by the ballot, not by the bullet. he has a clear vision about america's future, a clear vision of the voters' expectations of congress. we hear it on the caucus, on the senate floor. he is a tea party person -- [applause] he is a tea party person that has brought a great deal of passion to congress. do you know what i learned from a tea party person in iowa?

i agree with everything you do, grassley, but you do not show enough passion. well, i do not know what i got to do. i stand on my head and whistle dixie. [laughter] you can understand why rand paul, bringing the passion but that he and his father during, is very important. so he comes to washington to bring his demotion to congress. he left his musket in kentucky. but as i say, he has a clear view of keeping america going down the path that james madison set us on. james madison, -- i remember two things about him. i served with him a long time ago. [laughter]

he said, our government is by consent of the governed. [applause] the second thing that i hope president obama remembers is he talked about america's exceptional some, see? in the first paper, the federalists, they talked about american exception allows them. you know, they say french nobleman came over here to study america, by the name of the total, and he talked about american exceptional listen. so i will not accept anything less that america is an exceptional nation. and we have a senator guest with us, rand paul.

would you give him a great i will welcome -- to rand paul? [applause] ♪ "tnt" [applause] >> thank you very much. i am smiling because i am thinking of election night, and my son duncan and robert were on stage playing ac/dc for me. that was exciting. thank you, senator grassley. those were kind words. at least half of what he said might have been true. the one thing you will know

within five minutes of meeting senator grassley is that he cares about iowa and he cares about the people of iowa and there is nothing disingenuous about senator grassley. you are very lucky. [applause] i met your father senator. am i allowed to say anything about him? [laughter] i am a nice person, we have had cordray relations. we had a few words on the floor of a house during a debate. i said, we could build a lot more schools and airports if we did not have to pay chicago union scale wages in iowa or kentucky. he informed me that you cannot have any kind of quality products made, unless they were made by union workers. i scratched my head and said, nothing? 95% of the things you buy in the

gross restore every day are not made by the union. you need to send them back. i do not think i got anywhere. when i got to iowa, i met with your governor. he invited me to the capital. spectacular. you know where i am, in a double wide trailer in a courtyard in washington. i thought, why don't we get your governor to run against the senator? i saw my office, i seen his office. he does not want to go to washington. it is also good that you have good the leaders in your state that do not want to truck on to washington, who want to stay here and take care of iowa. congratulations on your new governor. [applause] about 1902, 1903, there was a chaplain in the senate, his name

was edwin hale. he was also an author, wrote the book called "man without a country." he was the chaplain and he was asked, do you pray for the senators? he said, i look at the senators, and i pray for the people. [laughter] we still need that, so keep the prayer is. when i was elected, john mccain called me and congratulated me. i was excited to be called by the republican nominee, famous war hero, and he said the first six months you are up there, you will pinch yourself, how did i get up here with all of these famous people? six months later, he will scratch your head and say, how did the rest of these guys get up here? [laughter] including, of course, your senator. [laughter] i have some strange things happen to me along the campaign trail.

i went to lichfield, ky. we are a lot like iowa, i grew up in a small town. i think we were on our bus tour, and a woman comes up to me and grabs me by the hair and says, i just wanted to see if it was a toupee or not. the things you have to put up with to get elected. i said, give me a break, i am having a bad hair day. i was lucky enough, when i was elected, that i get a special desk. it is just the way it works. i get the desk of henry clay. it goes to the senior senator from kentucky. that is mitch mcconnell, but he sits at another desk. i was intrigued by the history of this, so i told one of the other republican senators, i will be sitting at henry clay's

desk. he said, will you be the great compromiser? i thought about that for a bit. there is a new biography about henry clay. in that, i learned he became speaker of the house, i think, in his first term. he was president of the senate. he ran four times for president and almost 1. he lost to james polk. i learned about him being a great compromiser. my history textbooks, one of the growing up, would say in a clay kept the union together by his compromises, -- henry clay cap the union together by his compromises, by rising up. well, there is probably another analysis. he kept the union together, bought by compromising over something that maybe he should not have. was it ever morally acceptable

for one man to own another man? he compromised at every turn. in the house, he was the deciding vote to allow arkansas to extend slavery into arkansas. he voted for the fugitive slave law. he allowed the slave trade to happen in washington, d.c. he gets credit for being a compromiser, but sometimes, compromising is a misplaced ideal. we often say compromise is notable, but we often do not know what we are compromising on. he owned 48 slaves. the question is, was the compromise something that was worth it? people say, give him a break, he lived in 1850. he was a man of his times. most people accepted slavery at the time. but the thing is, there were people that did not accept slavery at the time. he had a cousin by the name of

cassius clay. also from kentucky. cassius marcellus clay. you may have heard of the name, we also had a boxer named after the great abolitionist. when he would come to the lectern, he would put his bible down and his booming knife. you did not mess with cassius clay. cassius clay and henry clay parted ways because cassius clay had a take no prisoners style and released a letter that henry clay had written to him privately, in which he had indicated more of a dislike of slavery that he talked about publicly, and was probably privately for emancipation and the lead on. he did not want a letter released publicly, and cassius clay released it, and they never spoke again. henry clay did not have any place for the abolitionist. did not have any place for the abolitionists or his cousin

cassius. he could make people mad. he had a printing press, could call out the slave traders. one night, it in a small town in the lexington, he was ambushed. they came at him from the back with knives, stabbing him in the back repeatedly. he falls to the ground. squired turner's son tom turner takes a pistol to his head and fires, but he misfires. he holds it to his head again and misfires. the third time, it misfires, then cassius clay has time to reach for his knife, and cuts the boy. he did not take any prisoners but fought for what was right. there are times when we should fight for what is right and not take the easy way out. [applause] i think we have to ask, who are

our heroes? are we controlled by the great and pans pater, -- enthralled by the great demands pater's? -- emancipators? our country used to be played by small pox. it was a terrible and awful disease. as much as 50% of the people that got small pox could die. it came to boston in 1721. there was a doctor who had heard from cotton mather's, a famous historic at the time, who owned a slave, about a technique that they used in africa and middle east. they would take puss from someone surviving smallpox, simply cut the arm of the inoculated, and put the puss in

the cut. the thing is, everybody told him that was the wrong thing to do. established doctors said it would be malpractice. they said it was enormously dangerous, and a person getting it could die. there was some truth to that, but the disease was awful. so he inoculated his son. talk about bravery. his son survive and he ended up inoculating 221 people and saved them from smallpox. within a generation, john adams, and george washington, ben franklin, all did inoculation. it became accepted. but it took someone brave and bold enough to step forward, against popular opinion, and do what he felt was right. we need more people like that. we need more people in washington that will lead instead of following. [applause]

i think we have a president who is now leading the country. we have a president who is basically abdicated in his role as leader of the country and is not doing what needs to be done. [applause] now, some would say that the issues that we deal with today have no moral equivalency to slavery, or do not have the infectious urgency of small pox. but i would say, when we think about things, we should ask, can a civilization long indoor that does not respect life? will we be judged at some point in time, whether we stood up, and said, the law and land should respect the unborn. will we be judged for that? [applause]

[applause] thank you. we face a day of reckoning, not only a day of more reckoning in our country. we face a day of fiscal reckoning. we have significant problems and is rapidly approaching, a day of reckoning where, will we be able to pay our bills, will we destroy our currency to pay our bills? can we continue to spend money that we do not have? we are running an annual deficit of nearly $2 trillion. you say, i read in the paper, it was only 1.6. that is kind of true, but you have to include the other stuff they do not count. that is a lot. how you even a imagine what a

trillion dollars is? ronald reagan used to use the example. if you want to put $1,001 bills in your hand, to get to one trillion, it would be 67 miles high. we are no longer talking about billions. it is a problem. here is the rub of the whole debate. we are talking trillions in deficit, but we are talking billions in cuts. the democrats have offered $6 billion in cuts for the rest of the year. what does that mean? absolutely nothing. we borrow $4 billion a day. we spend $10 billion a day. probably what we will get to compromise will be $33 billion. that is three days' worth of spending and about 2% of one

year's problem. there is a disconnect. when i come home or go to a tea party and say, i propose cutting $500 billion. at home, you know what they say? that is a good start. that is one-third of the problem. [applause] but in washington, when i talk about 5 $1 billion in cuts, they look at me as if -- $500 billion in cuts, they look at me as if i have worms coming out of my years. some of these people come with stories to pull at your heart strings and all want money. one congressman recently elected in michigan has a sign on his office. it says, if you have come looking for money, you are in the wrong office.

it is hard because so many of the programs have justification. can we help this person or this disease, these people who are struggling? the question we have to ask for each of those people who come is, is it justified to bar from a future generation, or is it justified to borrow from china or japan, or will they even continue to loan money to us? i fear the day of reckoning has been moved up because of the natural disaster in japan. who buys our debt? china has bought over $1 trillion of our debt. japan owns $886 million worth of our debt, but we rely on their continual buying of our debt. can japan continue to buy our dead when they have problems at home? will they sell our debt? will we have to buy our debt? the way we do that is simply by printing new money. but that destroys your savings

and value. ultimately, it takes from you even the cost of your land because everything goes up rapidly through inflation. we are facing a day of reckoning and it will take leadership. i do not think we are getting the leadership from the white house. you will help decide who is on the leadership on our side and you need to take it seriously. i know that you do. but as i told people in my primary, it is not enough to be a republican. it is not enough for the republican party to exist. political parties are empty vessels unless we can view them with values. we have to stand for something and mean it. -- imbue them with values. [applause] paul singer writes of a young man who comes home from a ymca basketball game in 1922 in

dixon, ill.. it is a cold evening. he finds his dad passed out on the front step, drug, dead to the world. he was embarrassed, did not know what to do. -- drunk, the to the world. he reached down and grabbed his overcoat, drug him inside, out of the neighbor's view, out of the cold. but this young man did not give up and say, what will i do, i have these awful family problems. how can i make it with my problems? this man lived in 30 different cities growing up. this young man grew up to be ronald reagan. he grew up to be the man with a sunny optimism, the charisma that shines so brightly that it got us through the malaise of the late 1970's. he had an optimism that being so broadly that it pulled us out

of a serious recession. he had an optimism that todd so mightily at the heart that he changed a generation of democrats into republicans. that is the kind of bold leadership we need. that is what you need to help us discover. we need bold leadership, people who will and can articulate the american dream. people who can understand that the american dream means that we believe in the individual, that we believe in you. when ronald reagan said that government is not the solution to the problem, government is the problem, we need to articulate that, but articulate we are the solution. the solution has unlimited potential, if we can get government out of the way. [applause] america is a great country.

i think the greatest country probably ever conceived because we got our founding documents right, we enshrined individual liberty and freedom in our documents. we should have respect for those documents. one of the things that i am putting this week, and will continue to fight next week, is the most important vote we will take when we are up there is whether or not to go to war. whether or not we send our young men and women to war should be something that your representatives vote on. president bush got a lot of grief from a lot of different angles for the afghanistan war and iraq war, but you know what? in both instances, he came to congress and congress at least voted on it before we went. these are the checks and balances that our founding fathers intended. this president sets an awful, terrible precedent to go to war without coming to congress. he had time to go to the united

nations, nato. in fact, i think they think the united nations is more important than congress. it is awful. [applause] he had time to go to the u.n., nato, he had time to go to the arab league. he had time to consult private citizens. but he did not have time to go down to the other side of pennsylvania avenue and consoled you, through your representatives? -- consulted you, to your representatives? that is going to have to change. [applause] senator grassley mentioned america being exceptional. i agree. but i do not think that we are inherently exceptional, in the sense there is nothing about the color of our skin or dna, or anything like that, but we are exceptional because of our constitution. we embrace individual liberty and capitalism.

but we have to remember to update these things. we have to obey the constitution. james madison said the constitution's opposes what history demonstrates, that the executive is the branch most interested in war and most prone to work, therefore, the constitution has, with studied care, given that power to the congress. it was a division of power, checks and balances. it was very important to our founding fathers. we need to have a debate over that. i hope to force a debate this week when we go back. as we move forward in the next cycle, i think there is every chance we can event of a success. we had great success in 2010. i think we can do it in 2012.

what by asko i was is to help us find the right person. thank you. [applause] >> the house comes in at noon eastern for general speeches with legislative work started at 2:00. one bill on the calendar which would cut 10% of the pentagon's printing budget. later this week, members will consider repealing the fcc that neutrality rules, as well as a measure allowing the epa to regulate greenhouse gas emissions. the senate is also in today. lawmakers will be considering a judicial nomination in addition to giving general speeches. you can see the spent -- senate on our companion network, c- span2. every weekend, experience american history on c-span 3, starting saturdays.

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span.org. >> last month, the supreme court heard oral argument. walmart v. dukes over pay discrimination. the issue before the court is whether the fema plan does have enough in common to cop -- qualify for the class action lawsuit. if the loss is about to proceed, it would be the largest in history and could potentially cost walmart billions of dollars. this is about one hour. >> we will hear argument first in the case of walmart v. dukes.

>> the mandatory nationwide class in this case was improperly certified for two fundamental reasons. first, plan to fail to satisfy rule 23 a ' requirements as reflected in the commonality, topicality, and adequacy requirements of the rule. second, plant is highly individualized claims for monetary relief bill to satisfy rule 23 b. to requirements for certification of mandatory not opt out class. regarding rule 23 a, because the plaintiffs' claims in this case hinged on a delegation of discretion to individual managers throughout the country, they cannot meet the code used requirements that are reflected in rule 23 a. the delegation of discretion in some ways is the opposite of cookies of claims that are common to everyone in class. the common policies of the plaintiffs that -- that the plaintiff's 0.2 are either neutral and not party to be discriminatory, or our

affirmative and nondiscriminatory. the company has a strong policy against discrimination in favor of diversity. >> i suppose if corporate headquarters had learned that these objective decision making -- that the delegation of decision making to the field was resulting in several discriminatory practices, patterns of discrimination -- in other words, the centralized process was lead to discrimination, then i suppose -- had that been attributed to the policy adopted by headquarters? >> no, your honor. if there was a pattern at a particular store -- >> they have thousands of stores, every week they get a report from another store saying>> so, they have thousands of stores, and there is an allegation of gender discrimination. at some point, can't they conclude that it is their policy of decentralizing decisionmaking that is causing or permitting that discrimination to take place? >> i think that would be an inquiry, your honor. i do not think it would rise to

a pattern or practice or a common policy that affects everyone in the same way. certainly, companies do look at the situation throughout the company and seek to root out discrimination, but it would take more than some reports especially in a company that has so many stores and so many unites. here, the plaintiffs' claims simply are not typical. if the three named plaintiffs stand before the court, they are supposed to represent 500,000 or 1 million or more people and stand in judgement. those are the words that the court used in hansverry v. lee to represent all those other people. the claim is that the individual decisionmakers in those other cases exercised their discretion in a way that was biased, and there's no proof of that. >> the chief justice's question reminds me somewhat of the rule in monell under 1983. the city is not liable for a constitutional violation and less than has a policy.

>> do you think we could use that as an analog to determine whether or non there is a common question here? >> if data policy of general discrimination, in the words of the court in phoenix, saw patterns throughout the company and because of facts and gender allowed to the patterns to exist -- >> i suppose, following the analog, there is a sharing of deliberate indifference to the violation. would that be a policy? >> it your honor, the deliberate indifference raises a different question. the test would be, was the company allowing the discrimination to occur because of gender, because they wanted their to be discrimination? there is no evidence of that here. >> is there any responsibility?

the numbers have been left out. the company gets reports month after month showing that women are disproportionately passed over for promotion, and that there is a pay gap between men and women doing the same job. it happens not once but twice. is not there some responsibility on the company to say, is gender discrimination at work? if it is, is not there an obligation to stop that? >> your honor, yes. there is an obligation to ensure that there are not wage gaps or discrimination. for example, if we look at the aggregated statistics, it points to a completely different issue. it does not sure that there are

gender gaps at the stores along come terrible people. that is the fundamental flaw in their case. their argument is that individual decision makers throughout the country were making stereotyped the decisions. they have just added everything together. the have not shown a pattern. the have added all the data together which points to a disparity, some of that mirrors. >> i thought there expert did not aggregate them together but did them regionally, not store by store. number two, he performed, as accepted by the district court and affirmed by the circuit court, any number of controlled variable comparisons including job history, job ratings, and other things, and found that the disparity could not be explained on any of the normal variables that one would expect that the disparity in was

significantly much higher than the 10 competitors of walmart and would they were paying their labor force. so, what is speculative about that, number one, and, two, why is that kind of statistical analysis inadequate to show that a policy of some sort exists? >> justice sotomayor, first from 11 plaintiffs' experts did simply estimated the regional results. he did not do a regional regression. we think we have strong arguments on the merits responding to the statistical arguments. >> that begs the legal question. you are right. ultimately, you may win and prove to a fact finder that this analysis is fatally flawed, but with the district court concluded was that on the basis of your experts, whom he

discounted because your experts was basing analysis on promises that the court found not acceptable that there was enough year after rigorous analysis. what is the standard that the court should use aniline upsetting that factual conclusion? >> the district judge did not discount to. the standard that we think would govern would be the second circuit adopted in the i.p.o. case which says there need to be a choice. when you talk about discretionary decisions, there has to be some demonstration that there is a common effect. our expert reports that 90% of the court said there was no pay disparity. even putting that aside, the plaintiffs need to come forward with something that shows that there was this for immaculate

occurrence and every decision in every store simply does not sure that. the other problem on the cohesion analysis, the to fatality inquiry, they each had a very different story. one was promoted to managerial precision and one was terminated. one was promoted and then had a disciplinary problem and was demoted. in each case, they would have to show that they were treated differently than people who were situated just like them, the same supervisor, the same department, the same situation. >> would you think is the difference between the standard they were required to apply and the certification stage on the question whether or not there was a companywide policy? what would the standard be applied on the merits? >> just as a leader, they did

not have to apply that there's a actual policy of discrimination. the at least needed to point to a policy in that was common and that a land of these different individuals, locations, and people together. their argument is that the common policy is given to tens of thousands of individuals discretion to do whatever they want. that is not commonality. >> i do not think that is quite fair. they say this is complete subjectively. they were using factors that allow gender discrimination to come in to the employment decisions. we suggested that it was a policy, using subjective factors only when making an employment decision is exactly the policy alleged year. >> justice kagan, they did not allege that. that would be a different issue.

they argued that it was a general overarching standards. i think it says on page 13 that say it was indicted. three pages later they say it was guided by a non- discriminatory policy. it does not opposed the kind of situation. >> i find this confusing on my excesses objective of the about a policy that can be alleged in a title 7 the suit were impact suit. >> the court did say that it could be argued. justice o'connor went on to argue that there needed to beat separate in that policy. title 7 does not govern policy. it governs practices. subjectivity is not a practice.

wal-mart has a combination of objective and subjective standards. within that, it points to the great personality. they will be the ones we will push up and they are trying to tie that in. >> there was a case in the 1970's and it was a class action against at&t for, i think, promotion into middle management. what was the issue there was a part objective, but in the end of the final step was the so- called person test. women disproportionately flaunt at that total person. the idea was not that at all complicated.

it was that most people prefer themselves. it is is in maker, all other things being equal, would prefer someone that look like him. -- the decision maker, all things being equal, would prefer someone that looked like him. the total person concept was found to be in violation of title 7. this sounds quite similar. you have an expert, and i have questions about that expert, but the expert is saying that gender bias can creep into a system like that simply because of a natural phenomenon and that people tend to feel comfortable with people like themselves. >> your honor, this is not like the total person test, but i think that is a very good example of something that could be a practice inside the overarching policy. if you had a case where a

particular decision making unit applied to the total practice test and you had disparate results in that particular unit, that particular group of people could have a much stronger case for class-action. as your honor points out, the sociologist here, the glue that is supposed to of this class together, said he could not tell if stereotyping was happens 0.5% or 95% or at all. this is a class-action. we can assume that every decision maker active in the same manner that had come in these courts words, the same injury and the same injury which is the way the court put it in amchecm. that assumption is not supported by the record. >> that is just that the plaintiffs would have to

demonstrate discrimination in every single case. that has never been the law. especially at this stage in the proceedings, there is a practice, a policy of subjectivity that on the whole results in discrimination against women, not that each one of these women in the class were themselves discriminated against. >> that is correct, your honor. at the phase one, we are not arguing that it planned to put have to come forward and sure that every class member was discriminated against. and to the teamsters analysis, there must be proof of a standard operating procedure of discrimination. it is undisputed that wal- mart's policy, not only written but it was implemented and enforced rigorously that was anti-discrimination. you are correct, your honor. each person does not have to come forward in phase one. the other big problem is that the district judge said in phase two under teamsters,

walmart would not be entitled to put on individual defenses. women who thought they had a claim would not be but come forward in this process if the paper records suggested they did not have a claim to have their day in court and argue that they should be compensated. the plaintiffs are trying to cut off half of the teamsters framework, which is fundamental both to the process and title vii because section 706g states very clearly that on the victims of discrimination may recover. >> what happens to the damages claim of an individual woman who is a part of this class is that class prevails? >> of the class prevails, then decline would be resolved in this manner -- and it is very unclear with the district court had in mind. >> which should be eligible for only back pay or compensatory

damages as well? >> yes, sir. she would only be eligible for back pay. the plaintiffs to retain their compensatory damages themselves. they waved those for the class members in order to get class certified. >> all right. would the woman with a claim for compensatory damages be able to sue after the class prevails? >> our view is that she would not be because that would have been part of the core nucleus of facts in the case. >> even though she could not have received notice and had an opportunity to opt out? >> that goes to the problem with theb-2 certification. it needs to be looked at under rule 23b3. it needs to look at under the growing edge of the law. the language of a liberal 23b2 speaks of injunctive and

declaratory relief. >> i that your position was that this cannot be certified under rule 23b3? >> our view is that the plaintiffs will not be able to satisfy those provisions, but that is why they brought it under rule 23b2. >> with that bar the class? meaning that if their claim is, as they stated, that they are not seeking injunctive and declaratory relief against the discriminatory impact or a case or practice case, would that not have value? standing alone without the damages component, would that value not be that the plaintiffs to come in later have a presumption that discrimination affected them in the burden shifts to walmart to prove that there was a nondiscriminatory reason? >> there certainly could be a

benefit from an injunction if the plaintiffs met all the standards. the problem here is that the individualized damage claims, the back pay claims, and golf and overwhelm the injunctive relief. >> even if they did, why cannot separate the b2 from the b3 claim about whether monetary damages have enough common facts and law towards a certification under b3? >> some courts have looked at the objective relief claims under the b2 and monetary relief under b3. that can raise other complications especially here as the plaintiffs are seeking punitive damages as well. it would certainly be better than this shoehorned these monetary relief claims that her so individualized. >> would you address them separately for me and tell me why a b2 class could not read -- could not exist on the on a

director of relief? if it can, if you are conceding that it can, if you're attacked is merely that the monetary component of this, the back pay, and i know the dispute on whether that is equitable or compensatory or not, and why that cannot just be separated out and put into the b3 claim? >> our view is that the injunctive claim still has issues with the cohesion, adequacy, it's a fatality, commonality. on the adequacy point, this case includes at least 544 store managers who are alleged to be discriminators. if that is not a conflict under amchem and the adequacy tests in

hansberry v. lee, i do not know it is. they cannot have doubt. they are kurds employees, former employees, and -- they are current employees, former employees, and they cut across every position in the country. i think there's still be those commonality come to the county, cohesion problems because of the nature of the plaintiffs' case here. >> correct me if i am wrong, and that i thought that the district judge said that the absent class members would give notice and have an opportunity to opt out. so, a plaintiff, a member of the class who wants to go for compensation instead of just a back pay could opt out. >> the district george -- court, justice ginsburg, limited the ruling to the punitive damage claim and the ninth circuit made clear it was doing it that way. it said under its ruling, which sent punitive damages back, that would simplify things because then there would not have to be notice and an opportunity to opt out under back pay.

back pay is monetary relief for individuals. divide people based on a balancing test on your b22 judgment to which they were not a party, taylor v. surgell, this court talk about the fundamental rule that an individual is not bound by a judgment. >> you assume that monetary relief includes equitable relief. >> yes, your honor. >> the fifth circuit has described a test where it does not use the predominant question. it uses the incidental test. >> that test is much better. the plaintiffs walked away from the two tests that were applied in the lower court.

they never contended they could meet the incidental damages test. the alice in a case in the fifth circuit only automatically back pain that goes to the group as a whole would qualify. this is individualized relief. >> that is where i am going. would you accept the incidental test as appropriate to the question of when monetary damages predominate or not? >> your honor, the text role of 23 b2 is very clear. the only ambiguity created is from the advisory committee notes. as the court said three weeks ago in the milner case, we do not look to a legislative history to try to create ambiguities. the drafters were concerned about the historical antecedents

where it was an in depth of- only case to desegregate and the like. the drafters overrule 23b2 would have been shocked if they learned that this case involves millions of claims for individualized monetary relief. that being said, your honor, the accidental damage test is, i think far superior, because it is at least clearer and would be closer to a bright line rule. i would like to go back briefly to the point i made earlier about individual relief in taking away the rights o both walmart and the absent class members. the procedures that would be used here, the night circuits -- 9th circuit proposed a statistical sampling method. the plaintiffs do not defend that. dave did not mention hilao case. fundamental teamsters hearings which would allow, once a resumption, if one was to a

rise, of discrimination occurred in the pattern of practice would allow the defendant to then show that it did not discriminate on an individual basis and would allow the individuals to come in and have their day in court. it violates title vii and we think lly shows some of the core flaws in this case. >> what is the class does not prevail and it loses? does that bar an individual woman at a particular wal-mart from bringing these same claims? >> yes, your honor. there is a presumption in the world of class-action. one is that class actions are always good and the bigger the class-action the better. none of those presumptions can be counted on. but the plaintiffs lose and their compensatory damages claims, i think, would be gone because the named plaintiffs are asserting that. if they try to bring a case as pattern or practice or pay or promotions, there were be significant questions of res judicata and collateral estoppel.

put not fair to anyone to this into one big class. >> but you're not suggesting that there would be precluded an individual discrimination claims? >> no, your honor. >> but what if it was the same theory that the reason this person was able to discriminate was because he had a total subjective discretion in his hiring? >> then there would be republican of collateral estoppel. mr. chief justic, e, i would lie to reserve my remaining time for rebuttal. >> of the please the court, this case follows from the teamsters and what some models of a series of discrimination. as a consequence, there is no requirement to have a formal policy of discrimination here.

>> what would the injunction look like in this case darks >> -- in this case? >> a series of remedial measures that would direct walmart to provide detailed criteria with which to make pay and promotion decisions that are job-related in the way that has not been true up until now. it would provide to all managers accountable for the decisions that they make. and would insure effective oversight of these pay and promotion decisions in a way that the company had -- the company did have, by the way, information regularly submitted about a decision dated took no action. it did not effectively monitor and allowed these problems to fester. >> is it your position that on this scale from a subjective decision making process these are necessarily illegal? >> not a dog, mr. chief justice.

>> how many stores are we talking about? 1000 stores? >> several thousand stores. >> how many examples of abuse of this subject of discrimination delegation need to be shown before you can say that flows from the policy rather than from bad doctors? i assume with however many thousands of stores that you were going to have some bad apples? >> mr. chief justice, we have examples in the record. >> how many do you need to have? >> i -- >> surely it will not be a somebody sends in one letter that it is not enough to support your theory. >> that is correct. there is no minimum number that this court has ever set. teamsters, as an example, the court had before it about 40 examples, but significantly they were not required. in order to establish a pattern or practice of liability, and we have more than that, of course, but in order to establish a pattern and practice

of liability or at least a prima facie case, teamsters holes that you need to show that there were disparities sufficient is a statute to create an inference of discrimination with respect to a discreet practice. >> is it true that the walmart pay disparity across the company is less than the national average? >> mr. chief justice, i do not know that is a fair comparison. the position that wal-mart has advanced makes is with the general population, not with people in retail. wal-mart's obligation under title vii is to insure its managers do not make pay decisions because of sex. the comparison that is relevant as between men and women at wal-mart and now the general

population that includes people in retail but railroad workers and all kinds of other people. that is not an appropriate comparison. >> it is not clear to me. what is the unlawful policy that wal-mart has adopted, under your theory of the case? >> justice kennedy, our theory is that walmart provided to its managers unchecked discretion in the way that this court's watson decision addressed that was used to pay women less than men who were doing the same work in the same disabilities at the same time even though those women had more seniority and her performance, and provided fewer opportunities for promotion than women because of sex. >> it is hard for me to see that your complaint faces in two directions. number one, you said this is a culture where arkansas knows, the headquarters, everything that is going on.

it seems to me that there is an inconsistency here. i am not sure with the unlawful policy is. >> justice kennedy, there is no inconsistency any more than it is inconsistent with in wal- mart's own personnel procedures. the company provides to its managers this discretion, which, by the way, is very discreet. it is not the broad kind of -- we are not attacking every facet of pay and promotion decisions. the district court found specific features of the pay and promotion process that are totally discretionary. there is no guidance whatsoever. with respect to the discretion, every store, the district court found, managers are provided with the same level of discretion. the company also has a very strong corporate culture that insures that managers, not just with respect to the practices we are challenging, but in all respects, what they call "the walmart way," and the purpose is to assure that in these various stores and, contrary to what walmart argues, that these

are wholly dependent facilities and the decisions of the managers will be informed by the daughters of the company. >> is that disparate treatment? >> it is because they're making these decisions because of sex. we have evidence shows that we think it through stereotyping and statistical results. >> i am getting whipsawed here. only one hand, you say they were utterly subjective. on the other hand, you say there is a strong corporate culture that guards all this. well, which is it? it is eager the individual supervisors that are left on their own or else there is a strong corporate culture that tells them what to do. >> justice scalia, there is this broad discretion given the managers. >> right. >> they do not make these

decisions in a vacuum. the make them with that a company. >> so there is no discretion? is that what you are saying? >> there are given this discretion and they are informed by the company about how to exercise that discretion. >> if someone tells you how to exercise discretion, you do not have discretion. >> all right. that is another -- the bottom line is that they did not and the results sure would. there were consistent disparities in every one of the regions, all 41. >> what do you know about the unchallenged fact that the central company had a policy, announced policy, against sex discrimination, said that it was not totally subjective his at the managerial level? you make these hiring decisions, but you make them not on the basis of sex. was that at the center policy of the company? >> that was a written policy. that was not a policy that is effectively communicated to the managers. >> how was that established? >> as i said before, for

instance at the sam walton institute where every manager has to be traded before they become a manager, they provide as a response to a standard question -- what are women so underrepresented or few women in the management? the response given was that because men at seek advancement or are more aggressive in seeking advancement. that is a typical stereotypical state member writing that every person going through the management training program that they go that off and use that to inform the decisions when they have the discretion to make promotions. >> that causes them intentionally to discriminate on the basis of sex? how could that possibly caused them to intentionally discriminate on the basis of sex? >> they have an intent to take sex into account in making their decisions. they apply a stereotype that women are less aggressive when it comes to assessing their

suitability for promotions. >> that is just an assessment of why the percentage is different. they differ not only on walmart but drop the industry. -- and throughout the industry. to say that that is the explanation is not to tell your people, "do not promote women." if you have an aggressive woman, promote her. >> i understand that, and there have been women promoted. justice scalia, first of all, we'd that -- we think the question you are raising our ones that wal-mart can raise at trial. the question at this juncture is whether there are questions, to the class. we have identified what has been recognized as a common policy that there is no dispute that this policy applies throughout the company.

the fact that we come at this juncture to mount have shown, as we think we have to in order to satisfy commonality, that there are disparities and burst to women. we have the means to show through testimony and other evidence and we can connect these two. >> have you sufficiently shown, despite the fact of an explicit written a central policy of no discrimination against women, do you think that adequately shown that the policy of is a fraud, and that what is really going on is that there is a center policy that promotes the discrimination against women? >> with the testimony in the record from the vice president of the company that the policy was lips service from the company. we have testimony from the experts in this case -- >> is this not something that would be -- i mean, we are not talking about getting your foot in the door.

we are talking about certifying a class. you may well lose on every one of these points, but the 23a standards, they are not supposed to be very difficult to overcome. it is just a common question of the fact. it dominates at that state. >> i am sorry. >> what seems to me is a very serious problem in this case is how do you work out the back pay? say we get through the 23a threshold. we get class certified under 23b2. the judges as there is no way i could possibly try each of these individuals. we are going to do this how? how're they going to calculate the back pay? >> the approach that the district court endorsed, an

approach that we recommended, and which has been endorsed by seven circuits over a period of 40 years is that in circumstances like here which are, admittedly, the exception to the rule where the company had no standards by which to make promotion and pay decisions, they had kept no records of the reasons for people being promoted and the reasons why they pay people certain amounts, that as a consequence of that, the albermarle and teamster decisions made clear that the obligation of the district court upon finding liability is an attempt to reconstruct the decisions that would have been made in the absence of discrimination. the district court found here, and is not clearly erroneous, that the more reliable method for doing so as to use a formula relying on walmart's robust

database in which it captures performance, seniority, and a host of other job-related variables that bear on pay and promotion decisions. it permits a comparison in a way that having individual hearings relate on his memories and rationalizations does not. >> what if you had a situation where a company had a very clear policy in favor of equal treatment of men and women? the answer to your question was that women did not have as many positions because managers discriminate against them in hiring and in promotion, yet you still have the same subject of delegation system. could you have a class of women who were harmed by this is subjective policy, even though it was clear that the policy of the corporation favored equal aplomb and opportunity? -- employment opportunity?

>> as clear as your hypothetical suggests, that the company had a policy of that sort, it would be appropriate for it to seek a summary judgment. >> no, no, no. you are saying that it is not enough to be a subjective decision. and the 1000 stores, you will find a goodly number who are not following the company's policy who are exercising their subjective judgment in a way that violates the right to equal treatment. could you not bring a class of people subjected to discrimination as a result of that subjective policy? >> you could bring a class case, if i understand your hypothetical, on behalf of women -- i am sorry? who were subject to discrimination as a consequence of that unchecked discretion. i went to be clear that we should not lose sight of the fact we have evidence year results from this that are really extraordinary. >> is the common question of law or fact whether, given the

training which central management knew, given the facts about what people say and how they behave, many of which a central management knew, and given the results, which central management knew or should have known, should central management, under the law, have withdrawn some of the subject of discretion in order to stop these results? >> that is a fair way to put it. >> if that is fair, is that a question that every one of the women in this class shares in common? >> i believe so, justice breyer. they have all been the subject in every one of these. >> the district judge did not think so. the district judge said that in the awarding back pay that suome would get a windfall and others to be on compensated? -- undercompensated?

>> justice ginsburg, actually at the district judge did not find that. the formula that we intended to use as a regression analysis that would permit comparison between each woman and the amount she was paid individually -- and similarly situated men taking into account performance and seniority. the formula will show they should get a back pay. -- get no back pay. >> i thought his point was not simply that some women were not underpaid, but women, if you had an individual case, the employer might share this person could have been fired, disciplined, and was not owed any back pay, not that she compares favorably to a male peer, but that she would not have gotten any pay at all.

>> welcome the justice ginsberg, the kind of factors that are entered into this economic model, performance in particular, should capture whether someone should have been fired. that is a very important part of the model here that permits people -- and the evidence shows that women were, in fact, having her performance than man and were nonetheless underpaid. >> can i just say something here? does not your class include both of those who were underpaid and those women who were not underpaid? does your class include both? is that commonality? >> as every class does, justice scalia. every class as some portion of its members who were not harmed by the discrimination. as the teamsters case recognized, what is common about them is that they were all subject to the same highly discretionary decision making. but that's still presents a question, to the class.

-- common to the class. >> correct me if i am wrong, i thought the teamsters case was an action by the government and not a class-action case. >> that is correct. it is the paradigm we use for determining what you need to establish a pattern or practice of discrimination. >> patter practice, that is correct. -- pattern or practice. help me, if you can, with this. let us suppose that expert testimony, sociologists and so forth, established that in the industry and retail industry generally women are still discriminated against by mathematical factor of x. you have a company with a very specific policy against discrimination and you get the way that there employees are treated and you find disparity by the same mathematical factor. does that give you cause for action? >> i am sorry if the -- >> if it is the same in the

company as they are in society but the company does have a policy against discrimination. >> the company's responsibility under title vii is to ensure that they do not make pay and promotion decisions because of sex. if the comparison between the pay that women receive, for instance, who are similarly situated to men within the company are such that they are underpaid compared is similarly situated men in the company, then the company would have legal responsibility under a title vii regardless of what happens in the rest of the industry and the rest of the world. >> would that be sure if you could not show delivered in different stocks -- deliberate indifference? >> i do not know that the standard is a deliberate indifference. >> can you still proceed?

>> i submit that you still can proceed. if the policy announces do not discriminate were to be effective in immunizing companies against liability in a class-action, imagine every company in the country would publish a policy and every license to discriminate. >> i understand your answer to be that this typical company would be in violation of title vii. >> that is correct. >> and that is what the academic literature on which your theory is based. >> justice alito, it is not just academic literature but precedence from this court. that is the president's behind teamsters. in his a would, what makes very clear is that you do not look to populations outside the company in the making comparisons. >> have a company that is absolutely typical of the inter -- entire american workforce

and let's say that every single company had examined the same profile. every single company is in violation of title vii. >> that very well could be the case. it hold companies responsible for the actions they take with respect to their employees. there certainly are industries, and there were many more 30 or 40 years ago when teamsters was decided, when the entire industry may have had evidence of discrimination. there is not negligence standard that immunizes companies because they follow the same standards as others. >> would your answer assumes is that if there is a disparity between the advancement of women and the advancement of men that it can only be attributed to sex discrimination. >> no. >> otherwise, how could you say that all of the companies are presumptive the engaging in sex discrimination? >> justice scalia, in this instance, is not just any old analysis that we are using. we have statistical regression

analysis that isolates him and takes into account factors such as performance and seniority. >> i was not talking about this case but your answer to justice alito. you said that it may well be that every industry in the united states is guilty of sexual discrimination. unless, you know, there is equality a promotion for men and women. >> i do not take that position, justice scalia. what i was trying to make clear is that that there are other companies in the same industry or the same problems may arise, which, by the way, was not true here. walmart was behind the other large retailers. it is that many companies in let -- any less liable for the discrimination practiced in its workplace.

i cannot speak for the rest of society. i do not have any reason to think that the entire society is engaging in employment discrimination. >> committee to back to the remedial question here. when it do you think it is that individualized hearings are required? you have described the formula that you would use. she went to the formula approach right and when is the individual hearing approach right? >> it is a call that, of course, we should leave to the district court in the first instance. factors that could weigh in the balance would include whether or not have available the kind of an affirmation that we do hear from the database with which to be able to more reliably constructed the kinds of decisions that would have been made in the absence of discrimination. likewise, there may be companies where they have kept better records, or any captor records, or more substantial standards that would permit the

reconstruction of those decisions to individual hearings. i did not think -- i am not contending that you could always formulate an approach in connection with these cases. this is an extraordinary case with evidence that they have to bring a standard for new records. >> did not the district judge say that because of the numbers that we could not possibly have at the hearing in each case on whether the particular woman was owed back pay? they did say something about this. >> i am sorry. the district court did make the comment that the sheer number of class members would make the administration of individual hearings difficult, but the district court went on. >> i thought he said "impossible." >> he may have. the district court and went ahead and raise specific findings about the extent to which the particular record shows that the use of a formula would be more reliable and individualized hearings. >> counsel, i am a little confused, all right? >> ok. >> you are saying in

individualized hearing is impossible, but that is exactly what you are saying you're going to do on the tour statistics. you're going to say, "for my statistical model, i will be able to identify those women in the class who are deserving of pay raises." what that does not answer ash is when in this process is the defendant going to be given an opportunity to defend against that finding? >> ride. -- right. >> are you suggesting that the district court would appropriately bar a defendant where there is no proof of intention now with respect to not keeping records, that it was intended to stop these women from collecting money etc.? when will they get a chance? if they're going to get a chance, is that not an individualized hearing? >> yes. effectively, wal-mart will have

ample opportunity through the arguments over which variables to use. there was a very robust debate below already about which rebels to use that will have a significant impact on whether women are shown to be underpaid, under promoted compared to men. wal-mart will have that opportunity. >> no, no, no. you say their only opportunity will be on the model and they will be precluded from showing any individual evidence that a particular decision was not made? >> justice sotomayor, if walmart comes forward, and they have not done so so far, and is able to persuade the district court, consistent with some kind of reliable determination of who should have been paid what and promoted in the absence of discrimination -- >> you are not answering me. so what you're saying is that we're going to preclude them from doing anything but offering a mathematical model because otherwise it will be too hard to have individual hearings.

>> let me answer you directly. i am not saying that. wal-mart has an opportunity to make the case with what ever showing it wishes to make that it can reconstruct these decisions more reliably and in an entirely subjective the environment. if it does, it can offer evidence in certain circumstances, but it has not done so. i do not submit they will be able to do so. >> this takes evidence to establish that it is more reliable to have a hearing with evidence on the particular promotion or dismissal of the individual, that is more reliable than using -- i do not care how admirable a statistical guess you make. is that really a question? >> i think it is, justice scalia. >> we must have a pretty bad judicial system then. >> it is not the judicial system. it is the record keeping of the company and the standards of the pay and promotion process

these that basically means 10 years later, managers are going to be coming forward to speculate about what they did 10 years earlier with no records to cross-examine him on. that is the the model for a reliable adjudication. >> we should use that in jury trials, too, for really old cases. we should just put a statistical model before the jury and say, "you know, this stuff is too old. we will do this on the basis." is this really due process? >> justice scalia, i submit it is. the circuits have been considering this for 40 years and have held so. where there are standardless, recordless decisions at issue. >> well if it is standardless and recordless, where is the commonality? >> that sure is a flaw in your case on commonality. >> justice kennedy, the

standardless and recordless aspect is with respect to try to reconstruct these decisions years later. as i said before, we have a common policy here and it presents a common question. we have shown evidence that would probably create a private fashion case under the product or practice of -- prima facie case under teamsters. >> one thing you have not touched on is, first of all, whether b2 is limited to an injunction. if damages predominate, then you cannot use b2 and you have to make your case under b3. one factor is that about half of the class is gone so they are not interested in

injunctive relief, but everybody is interested in money. white is not the money -- why do you say that the injunctive relief is the thing and the damages are lesser rather than the other way around? >> is more than half of the class that is gone, is it not? >> nobody knows. they continue to have more employees added to the company cash, so i would not presume -- >> but nobody is leaving. >> people are leaving. the point is that the advisory committee note with respect to rule 23b2 makes clear that whether or not an action or inaction is taken with respect to the cost, which is the predicate to b2 certification, it does not depend on the number people adversely affected by that action. as a consequence where the

former employee is, if they would be included under b2, because the question is not on a day-to-day basis to should have been in a position to seek injunctive relief, who is employed come into is not. >> thank you counsel. mr. boutrous, you have four minutes remaining. >> let me begin on the question of back pay. mr. sellers has made clear that under their vision wal-mart would never have an opportunity to prove that it did not discriminate against a woman who was seeking back pay. the district court did not suggest that it might be difficult, as justice ginsberg suggested, that he found would be impossible not just because the number of people but because of the nature of the claims that discretionary decisions were being implemented in a way that effected different people differently.

the problem here is that the records are not available. then he says we're going to have a proceeding where the district judge relies only on the records, that he says are inadequate, to an hour every construction of the decision. that is that a process known to our jurisprudence. it does not comport with due process. it takes away walmart's rights under title vii. it injures the rights of the individual women. >> he did not seriously contend that if a plaintiff, if the policy or practice of discrimination were found that a woman could not come in and say they cut -- put x in hedge when i had a longer history at wal-mart, i had a far superior job rating, i had no criticisms, and i was not promoted. would that not be enough to show that the policy influenced her lack of selection? >> i agree with you, justice sotomayor. >> we agree women should be

able to come in and say that the records did not show what really happened. i had more experience, i was a better employee than the guy working next to me. under the plaintiff's theory, in order to get a class here, that woman would not be able to testify. wal-mart would not be able to say that this person was a turbulent week, a great -- terrible employee, a great employee. on the record, it is not impossible to recreate this decisions. the record is filled with decorations for managers to remember very well the ms. dukes violated company policy and that ms. arana was fired for infractions regarding how she captor hours. >> if you spend one second, remember my question. we have got a coming issue. why is that enough to at least support a b2 and drove to the

issue? -- injunctive issue? his point, remember, is that this is just cert. assuming they can support the evidence, why can they not have b2 at least under the injunctive relief? >> because, your honor, the common policy affects everyone differently by definition. the plaintiffs are not typical and they are not arguing that everyone was affected by the same common policy. many women thrived. maybe some men stereotype of the other direction. 544 of the plaintiffs are emails for managers. it is impossible to make these sweeping generalizations, which of course is what stereotyping is supposed to prevent. waythere's absolutely no that there can be after process here. on the policy question, should the plaintiffs pointed to the general policies and central control, but the one policy

they do not want to confront is the policy against discrimination. it was not just a written policy on paper. in fact, there is a declaration on a page1576 that lays out a very aggressive efforts the company -- >> what about the vice president who said it was just window dressing? >> i am glad you asked about that, justice scalia. here is what he said. he testified about the diversity goals of the company and the efforts to get more women into management. he said in his view until the company linked diversity goals to compensation managers that it would be lip service. he was not saying the entire program was the service. he was an advocate for diversity in the company. he said his goals were 20% and other peoples were 10%. it is completely misleading to suggest he was denigrating the entire policy. >> i think he's making their point which is that if they started paying women the same as men that they might get more diversity. >> they do pay the same as men, your honor. >> well that is the issue of the dispute. >> thank you, counsel.

the issue is submitted. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2011] >> this week, lies on the budget as short-term funding to keep the federal government operating and on friday. this could possibly lead to a government shutdown. of the senate gavels in at 2:00 p.m. with the general speeches until 4:30 p.m. until the thick of a judicial nomination with a vote at 5:00. the house comes in at noon eastern. legislative business at 2:00 p.m. a bill to cut the printing budget by 10%. also, a measure repealing the fcc net neutrality rules and a bill that would strip the epa regulation of greenhouse gas emissions. see the house live on c-span and the 20 minutes. until then, your phone calls on this morning's "washington journal."

christian science monitor" this morning.

think thisdo you morning, the morning the

president obama announced his reelection bid? republicans, who should run against him? peter, you are first. go ahead. caller: first of all, thank you very much for c-span. it is a fantastic service to the country. i am interested in the article that you just read. it does not mention one of the great candidates out there, herman kane. host: it does mention him, as a long shot. the only african-american in the field. caller: i think one of the most outstanding men of achievement in the field. someone that, frankly, the country is ready for. a person that can come in and lead and not have the political baggage of the other candidates. that is my comment.

thank you for c-span. host: all right. martin, cordova. caller: good morning. host: what do you think about this? who should run as the republican candidate in 2012? caller: what you will hear throughout this segment is that there is a great and vast pool of candidates that are more than capable of bringing the country to where it needs to be and i am, frankly, looking forward to the documentary of the obama- pelosi-harry reid regime called atlas shrugged. mostly i am pushing for mitch daniels. host: all right, why mitch daniels? caller: the bottom line is that the sad thing about the 2008 election is that we chose

someone who had a great story and a great ability to give a speech. we have clearly seen that it is an empty suit. now we want someone who was a grown up with a record of accomplishment. mitch daniels is clearly the kind of person. host: bob, go ahead. caller: there is only one republican i would even consider voting for. if he does not run -- that is ron paul. if he would not be the nominee, i will vote third party like i did the last time around. i think that he is highly qualified. he is a conservative. you can look at his voting record. it is excellent. the military has gotten out of hand.

he just makes good common sense. host: what about his son, rand paul? caller: he would be a good second choice, but i like his father. his record speaks for itself. host: love vernon, richard, -- mount vernon, richard, new york. what do you think? caller: i would like to see alan west be the ticket. host: why is that? caller: he was drummed out of the service because he did not care one way or the other what was good for him. what he did was he shot a gun at terrorists to save lives. he got the information by

shooting a gun at the man. it was not politically correct but he did not care about that. not like the person we have in the white house, who is worried about the polls, being president, allowing illegal immigrants to come to this country with drugs. host: you have heard from the front page this morning, "gop vows to stand brown." host: in new jersey, deborah,

independent, your thoughts? caller: i would not be interested in any of the current republican slate. they are all pro-establishment. i would like to see congressman ron paul. i think that he speaks truth to power. he hears his proposals to the founding fathers concept of government i would like to see -- government. i would like to see chuck cale from nebraska. i think that he is a stand-up person with truth and honesty. host: have you ever voted for a democrat? caller: i voted for a democrat in my first year.

host: stony brook, maine, democratic line. you are on the air. caller: myself, i would like to see someone run on either side that is the ordinary working man. someone who has not been a career politician. someone who knows what it is like to lose your job and live paycheck to paycheck. there are a lot of unemployed, hard-working people out there that would love to have the job and take it for half the money. host: anyone out there that represents those characteristics? caller: i do not know of anyone yet, but i am sure that there must be someone. host: did you vote for president obama in 2008? caller: yes, i did. host: are you not going to vote for him again? caller: i am on the fence. i feel that he is trying to do

what is right, but nothing seems to be working from what i can see. the state of maine is hurting. there is not a lot of work up here. the fishing business is going down the toilet. it is not good. i would like to see someone who did not have a silver spoon born in the mouth. host: in the e-mail that president obama sent to supporters this morning, he mentioned that several things. first, i want to show you the logo that is part of the campaign. this is what it will look like. there is the web site, right there. in it he explains why he is making the announcement 20 months beforehand.

host: susan, republican line, new jersey. good morning. well let's try? republican line? let's move on. salem, indiana. good morning. caller: how is it going dempster -- how is it going? the republicans have not produced any one that can be a match for obama. for the cards he has been dealt, he has done a good job.

the republicans are like -- everything obama says, whether he is right or wrong, they want to counteract them, even when he makes the right decision. as soon as he goes in, republicans say they should but. obama is doing a great job and i do not think that a republican has been produced to counter his presidency. host: who do you think, on the republican side, could best challenge president obama on that issue? caller: if you look at the libyan crisis, civilians are being killed. he took swift action to prevent that from happening.

first the republicans wanted us to go into libya, and as soon as we go in and they start to criticize him. they are very which she washy. -- wishy washy. host: we will keep talking about this this morning on open quote washington journal." -- "washington journal." we also wanted to talk about congress, back in session this week. they face a deadline, friday the eighth, to keep the government running. here is "politico" this morning , killing president obama on the phone. -- showing president obama on the phone.

host: and other newspapers talking more about that this morning at 7:45 with gail russel chaddock. aggie, democratic line,

michigan. caller: you mentioned a lot of candidates, but unfortunately the republican party will need the democratic bowed to get a president in office. -- need the democratic vote to get a president in office. unfortunately, the only person qualified is donald trump. if they cannot get a crossover, they will not be obama. if donald trump plan, we would not even vote -- if donald trump's rand, we would not even vote. president obama would win again. they put enough money in that one program to give every man, woman, and child in the u.s. $1

million each. they could cut out medicaid. there are billions of dollars in programs like this every year. one program cut would give us what we need. host: harry reid was on "face the nation" yesterday, here is what he had to say. caller: by always look at the glass as half full. it is so easy to do, in washington terms. it is just a question of how we do it. we cannot do it on a program for little kids. as developed by president nixon or the first president bush, all

of those programs have not contributed to the debt. let's look at the worker programs that contribute to the debt. host: that is where the funding comes from, in an annapolis we are talking about 2012 republicans. host: -- caller: you figure that a president, four years ago, accounting for the things that take two years to come to all this start with. once it gets accomplished there is so much information, he settles in and they will not