the core holding is and it's reaffirmance of it. >> all right. let's talk about cameras in the court. you sit on a court of appeals which does allow cameras in the court and from all indications, your experience with it has not been negative. in fact, i understand it's been somewhat positive. so how would you feel about allowing cameras in the supreme court where the country would have a chance to view discussions and arguments about the most important issues that supreme court decides with respect to our constitution, our rights and our future? >> i have had positive experiences with cameras when i have been asked to join experiments of using cameras in the courtroom. i have participated. i have volunteered. perhaps it would be useful if i explain to you my approach to

collegiality on a court. it is my practice when i enter a new enterprise, whether it's on a court or in my private practice or when i was a prosecutor, to experience what those courts were doing or those individuals doing that job were doing, understand and listen to the arguments of my colleagues about why certain practices were necessary or helpful. or why certain practices shouldn't be done or new procedures tried, and then spend my time trying to convince them. but i wouldn't try to come in with prejudgment so that they thought that i was unwilling to engage in a conversation with them or unwilling to listen to

their views. i go in and i try to share my experiences, to share my thoughts, and to be collegial and come to a conclusion together. and i can assure you that if this august body gives me the privilege of becoming a justice of the supreme court, that i will follow that practice with respect to the tall issues of procedure on the court, including the question of cameras in the courtroom. >> i appreciate the fact that if you can't convince them, it won't happen. but how do you feel? how do you feel about admitting cameras in the supreme court, recognizing that, you know, you cannot decree it. do you think it's a good idea? >> i'm a pretty good litigator or i was a really good litigator and i know that when i worked

hard at trying to convince my colleagues of something after listening to them, they often will try it for a while. we'll have to talk together. we'll have to figure out that issue together. >> okay. >> i would be again if i was fortunate enough to be confirmed a new voice in the discussion, and new voices often see things and talk about them and come -- consider taking new approaches. >> all right. judge all of us in public office, other than federal judges, have specific -- >> this is huge, i think. >> we must periodically -- >> we are back with big news. andrea mitchell and richard wolf with us. the nominee said roe v wade which established the right of a woman to choose an abortion to reproductive rights. clearly she said it's settled law. that struck me as big news.

>> it is big news. she didn't play rope a dope. she came out and said roe v wade is settled law and the casey ruling, follow-up ruling from years later from the pennsylvania case that narrowed it some. >> no undue burden. >> is also settled law. affirmed it at settled law. shieds they are not going back there and declaring herself. whether or not this creates problems with her in confirmation with some members of the majority and majority of americans, it's settled law. >> we are basically established here. the casey case which was allowed to have -- you're allowed to have a 24-hour rule and allowed to have parental and all kind of things around abortion rights but cannot deny the basic right. >> she dodged a question on tv cameras in the court. she said i'm going to try to convince everyone. no. she has the ability to talk around -- >> she chose to nail those.

>> she chose -- >> why in all of the hearings you watch the hearings people say cat and mouse she chose to say i'm not the mouse here i'm going to answer here. >> a great deal of pressure on her. editorial in "the new york times" saying she has to declare herself on roe v wade. you can't play cutesy with this anymore. this is not something she, as a clear, you know, clearly a supporter of roe v wade is saying it's settled law. >> you just said -- she is now. she is now. >> as of a few minutes ago. >> she is now. on the tv question among her future colleagues if she were to be confirmed that is a more controversial question. they know that roe v wade is settled law but the tv case is a a passionate issue with some of, in fact, the more liberal members of the board. >> no way in the world i believe that roe v wade is settled because we have political debates over the rights of the supreme court to make a review of that constantly.

constantly these battles over judgeships is whether they can get enough people on the court to get pass over kennedy and get 5-4 the other way. >> it's interesting right now where the court is, the cases coming up to the court do not involve issues of the constitutionality of abortion. what they do involve are guns and why she has been questioned on that. affirmative action. >> the conservative people in this country who are legion believe that there is no privacy right in the constitution. it was imagined by the roe decision and still imagined and it's not real. she said it's in the fourth under the right protected from seizure and 14th as the liberty clause in it. but, richard, jump in here. it seems to me it is still an issue in this country. >> the court is revisiting. >> it's not a legal issue is the point. >> she said i'm not going to review it. >> right. look how she talked about guns. one of my god children is member of the nra. a completely different framing

how she thinks about the subject and heavily thought in the country. >> why didn't she choose to nail down a position here where she -- she said i keep an open mind on erg everlg. she doesn't have open mind on abortion. she said it's settled. >> she could have just said legal precedence. she went further and said it's settle. >> she is saying the case law is settled. that she's not going to revisit it because it won't -- i mean, obviously, a case can come before her but aren't cases in the pipeline that really revisit the basic principle of roe. >> how did this affect the hearing possibilities, confirmation votes of several conservative members now? is this harder for people to vote for her now she has nailed this down? >> the most interesting person was lindsey graham yesterday. that is only the sort of vote up for grabs here and does it make

it more difficult for him? what other factors does he have in mind here? >> it's tougher for orrin hatch. >> yeah. >> he has to vote pro, self-admitted if you will pro choice justice. >> we may see the numbers go below 70 right now. look. she is not replacing someone what a swing vote on the court on this issue. >> in terms of the liberal view of this, the pro choice view which is dominant in a lot of circles questions have been raised. i funed them unfounded because i thought the profile of her new york democrat, minority and ivy league education i made assumption, perhaps unfairly she was pro choice. manifestly. clearly she felt the need or believed she had to make what you said was a statement today declarative statement. >> this is a tactical decision by the white house. >> go with your strength? >> go with the strength and you can't refight, relitigate this among the wra ma jort. she's a catholic and you don't

really know what she believes. we can't really categorize her. what she has tried to say here is contrary to some of her statements to law students and to speeches and ethnic groups and minorities and she is trying to inspire she doesn't let her prejudices, personal prejudices influence her legal decisions. >> let's bring in, we need him right now. our life line, pete williams, nbc justice correspondent. how do you think this is. highly significant, say our panelists, andrea and richard, she has now declared that roe v wade is settled law. >> i think it's sort of a standard incandaion. it's not nearly as strong, for example, what ruth bader ginsburg said who litigated these cases. you may recall she was somewhat critical how roe was decided but

certainly agreed with the holding. the questions that we've gotten into in past years are about how much the presence dense should be respected. you may rarl that arlen specter tried to ask whether roe was not just precedence but was super precedent and then even tried to ask whether it was one level above that, super super-duper presence dense. roberts and alito were unwilling to go there. it's settled law. the question is could it ever be overturned? lots of settled cases get overturned and so i think we really -- we probably won't see, until we get into some of the other questions, what many of the -- what many of the senators want to ask which is, okay, it's settled law, how much value, how much respect does it deserve as legal precedent. the question that was asked a

straightforward question whether it was settled law and she said yes. i don't know how you could answer that in other way as strictly legal matter given that supreme court has decided several cases in the meantime that uphold its core holding. so, obviously, it's settled law. we'll see later whether she gets into the same question about, you know, the question is would you ever overturn it. that's what republican nominees always get asked and what john roberts and sam alito got asked and they did the standard what republican nominees do, it certainly would be entitled to with respect to settled law. that's the theory you don't go bouncing around from one precedent to the other. you follow the precedence as you move along but they never rule out there could come a case in the future where they might have to re-examine it. that's what republican noom

knees always say. she said the standard answer i think nominees give. i don't think it's a huge difference. >> let's watch how the news gets developed over the afternoon. it may be the most significant event of today as we get to 5:00 with "nightly news" puts together its budget. we'll what the story is. my hunch the biggest story so far and even bigger -- what do you make, while we have you, what do you make of her statement it was bad that she said that the appellate court makes policy? that she actually took it back, the language she used? >> actually, what she took back, i think, or said she should have phrased it differently was the business about the wise latina judge. that's the one -- she sort of tried to defend it for a while with senator sessions and then finally said, you know, it's not the best thing to have said. lindsey graham gave her some trouble about it yesterday saying i don't know that one's experience makes them a wiser person than another person based

on their different experiences. the policy thing she basically said to senator sessions, you just misunderstood me. i don't think that's the one she took back. >> okay. we'll be right back with our coverage. thank you, pete williams. >> you bet. >> we will hear from him hopefully, throughout the day as we try to determine the importance of the statements made by the nominee for supreme court, sonia sotomayor. we will be right back as the hearings continue to make news. ♪ look at this man ♪ so blessed with inspiration ♪ ♪ i don't know much ♪ but i know i love you ♪ and that may be ♪ all i need ♪ to know (announcer) customers love ge aircraft engines almost as much as we love making them. innovation today for america's tomorrow. but with aleve, i don't have to worry about my knees hurting.

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back to our coverage of the supreme court hearings in a moment. first a quick check of your headlines. new york city and "the wall street journal" reporting that for years the cia tried to put together hit squads targeting al

qaeda. the top secret effort began shortly after 9/11 but canceled when cia director leon panetta learned about it last month. according to reports it was hidden from congress under orders from former vice president cheney. police in florida say up to eight people may have been involved in the murders of a couple known for adopting disabled children. a fourth suspect arrested monday. there could be more arrests coming up. robbery is one of the reported motives. southwest airlines spp flight 2294 heading from nashville to baltimore. a foot-long hole appeared in the ceiling during flight. >> there was no pop, no creak, no explosion-like noise. a loud roar and took me a couple of seconds to wake up. i got the baseball cap out of my face. i look up and there is the sun coming through the ceiling. >> cab bin lost pressure but no

one was injured rb debbie rowe mother of michael jackson's two oldest kids has reportedly given up her parental rights again. the "new york post" reporting she is getting about $4 million from katherine jackson. details were supposed to be sealed in a court filing yesterday. a jackson family friend said it was a necessary evil like paying ransom. los angeles coroner says autopsy test results could be released regarding michael jackson this week. bernard madoff is making his way to a north carolina prison where he will serve his 150-year sentence. he was transferred where he was held in atlanta. he is expected to be transferred to the butner federal complex outside of raleigh. he was sentenced last month after admitting to defrauding people in a massive ponzi scheme. those are the headlines. after a quick break, back to chris matthews and our live

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we're back covering the confirmation hearings of sonia sotomayor. the hearing i think today has begun to make news today after a introduction yet. senator grassley what do you think significant happened so far today? >> well, i think she has done a good job of backing up yesterday what she said when she said her basic approach to judging is fidelity of the law and i'm sure that that was made as a statement because she knows the major concerns among us republicans is whether or not she's going to leave biased at the courtroom door when she is doing her job. and i think she's backing that

up very well today and, you know, you've got to think of some of the really extreme statements she's made. maybe not so much in her court cases, but in her speeches and in her writings that there might be a suggestion of pandering yesterday when she talked about fidelity of the law and so, today, and the next two days, i'm sure she is going to do everything she can to reinforce that and the extent of what she reinforced that it's very much much more difficult for us to charge her with bias and not being blindfolded as a judge is supposed to be and not being a judicial activist. >> she said today in response to senator cole from wisconsin that roe v wade, decision that gave a woman a right to an abortion back in '73 with some constraints that that is settled law. what does that say to you? does that mean anything? because i realize the judge roberts said that during his

confirmation hearings, that phrase, in fact, settled law. >> well, it's settled law until one or two things. either there is a constitutional amendment passed overturning it or until a majority of the judges come to a conclusion that something else ought to be done. but i think when it comes to abortion, the only thing that is going to change that is when there is scientific evidence that conception is the beginning of life as opposed to judges deciding when life outside the womb is viable. and that's a decision that rests on things that we don't know about today, although it seems that as science goes on, you get closer to the point when life is viability as you see a heart beating when you have a sonogram after just a few weeks. >> do you believe if abortion is covered in the new national health law bill that the president is trying to win by the end of this year, abortions included as one of the services, that that will kill the bill?

>> on that point, what we're trying to do is to do what the present policy is within law, maintaining present policy. if we can maintain present policy and why would anybody want to overturn present policy on that issue? then we ought to not have any problems. >> the hyde amendment if it's upheld in the new legislation, if it's honored that would be okay with you? >> don't you think after 34 years that is pretty settled law as well? >> well, that's up to you. let me ask you about her statement this morning that it was a mistake. in fact, her phrase was it was bad when she said that a wise latino woman might offer a better opinion in a case than someone else. the fact she said today that fell flat, she said that that was bad, that she said it that way. what do you make of that? is pa pandering to use your term or what would you call it?

>> i hope it's not pandering. i hope she is very in. sincere when she said it and not a death bed confession because she wants to be on the supreme court. >> when you use a phrase like that and it's so appetizing that people must think you mean that. do you think it is a death bed conversion? >> well, listen! i'm raising questions. >> all right. >> she made these statements. i didn't make them. she wants to be on the supreme court. the president wants her to be on the supreme court. i've got a responsibility to be dispassionate and figure out whether or not she is playing games. i hope she's not. i don't have any reason to think she is. except we've got three or four days here to find out because we're making a decision putting somebody on the court for a lifetime and i've only made one mistake, one misjudgment of any of the 11 people i've been involved in and that was suitor souter and i don't want to make

that mistake again. >> what do you make of jeff sessions raising the point that in her testimony when she was up for appellate court, she promised to recognize the need for real scrutiny whenever race is used in determining some kind of readdress of past grievances that it had to be used in a very narrow way. then he pointed out, your colleague, mr. sessions, that she never used that language when she decided the ricci case and decided that in a cursory fashion and never brought up the need for a tough standard when using any kind of effort to use race to address past grievances. >> i presume that probably what it means with swhen she was here in the last decade to be on the circuit court and she responded to senator sessions that she either forgot what she had said or she had changed her mind in the meantime. but i think it's very important for justices of the supreme court to be reminded what they

sell senators in the past and what you tell senators during a confirmation decision, if they're coming from the heart, as well as the study of the law, that you ought to stick by them when you're a justice just as much as you were when you were a nominee before the committee. >> is that your experience that these justices stick to what they promise you when they come up for confirmation? >> you know what? being a nonlawyer on this commit yen not following every supreme court decision i think i'm very inadequate to answer that question. but i can tell you that as a personal matter, there would be some times when i would expect that it would be perfectly appropriate for them to do it, as long as things have changed or not applicable to what they were when they they were a nominee because i find that all the time as a senator. i may make a promise during an election. you try keep that promise but if there is a good reason for changing it, it seems to me you have a responsibility to change it and stand on your thing.

the only advantage i have a disadvantage in regard to that i can be voted out of office and a supreme court justice can't be. >> it's so great to have you on, senator. thank you for coming on with your candor and toughness. thank you, sir. they're getting back to the hearings right now. they took a ten-minute break. that was senator charles grassley of iowa. great the way he talked there. he is so common sense the way he talks. >> when he said he has only made a mistake once in 11 times. he said he is dispassionate. i think he could end up voting for her but i they he is a tough vote for her to get especially because of abortion which is a tough issue for chuck grassley. >> roughly 12:30 because of the caucuses will break at 12:30 but then resume right at 2:00 which would mean i've talked to republicans and democrats and it

means everybody has that want to come back can leave their car because a few minutes early, but i think everybody will understand that. so senator hatch is a former chairman of this committee and a friend of many years. i recognize senator hatch. >> well, thank you, mr. chairman. welcome again, and to your lovely family. we're grateful to have you all here. now let me ask you a question about settled law. if a holding in supreme court means it's settled, do you believe that -- that gonzalez versus carhart upholding the partial abortion ban is settled law? >> all precedents of the supreme court, i considered settled law subject to the deference that dr. nast stare decisis would

counsel. >> i want to point out to the second amendment which is important to all of us, the right to keep and bear ams arms. your conclusion that the right is not fundamental. now, in the 2004 case entitled united states versus sanchez, you handled second amendment issue in a short footnote. you decided the second circuit's decision in the united states for the proposition that the right to possess a gun is not a fundamental right. toner relied on the supreme court's decision in the united states v miller. last year, in the district of columbia versus heller the supreme court examined miller and concluded that, quote, the case did not even purport to be a thorough examination of the second amendment, unquote. and that miller provided, quote, no explanation of the content of the right, unquote. are you familiar with that? >> i am, sir.

>> okay. let me ask you, doesn't the supreme court's treatment of miller at least cast out on whether relying on miller as the second circuit has done is proper? >> the issue -- >> i'm saying at least cast doubts. >> that's what i believe justice scalia implied in his footnote 23, but he acknowledged that the issue of whether the right, as understood in supreme court jurisprudence was fundamental. but that the supreme court didn't consider it fundamental so as to be incorporated against the states. >> it didn't decide that point. >> well, not only didn't it decide it, but i understood justice scalia to be recognizing that the court's precedent had held it was not. his opinion with respect to the

application of the second amendment to government regulation was a different inquiry and a different inquiry as to the meaning of u.s. miller with respect to that issue. >> had already been decided would you have addressed that issue dirvel differently than heller or take the position that the doctor and incorporation is inapplicable with regard to state issues? >> that's the very question that the supreme court is more than likely to be considering. there are three cases addressing this issuing -- issue, at least addressing this issue in the circuit courts. and so it's not a question that i can address. as i said, i bring an open mind to every case. >> i accept that. sanchez you identified the premise that a right to possess

a gun is not fundamental. the conclusion that new york's ban on gun was permissible under the second amendment but not a word connecting the premise to the conclusion. without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the second amendment. is that what you believe? >> no, sir. because that's not -- i'm not taking an opinion on that issue because it's an open question. >> you admit it's an open question? >> well, i admit that justice -- i admit. the courts have been addressing that question. the supreme court in the opinion authored by justice scalia suggested that it was a question that the court should consider. i'm just attempting to explain that u.s. versus sanchez was

using fundamental in its legal sense, that whether or not it had been incorporated against the state. with respect to that question, moreover, even if it's not incorporated against the states, the question would be would the states have a rational basis for the regulation it has in place, and i believe that the question there was whether or not a prohibition against felons possessing firearms was a question, if my memory serves me correctly, if it doesn't. but even justice scalia, in the majority opinion in heller recognized that that was a rational basis regulation for a state under all circumstances, whether or not there was a second amendment right. >> the district of columbia

versus heller the supreme court quote it has always been widely understood that the second amendment like the first and fourth amendments codify a pre-existing right, unquote. the court also observed this, quote, by the time the founding, the right to have arms had become fundamental for -- subjects, unquote. the court described the right to bear arms as a natural right. do you recall that from that decision? >> i do remember that discussion. >> all right. in what way does the court's observation that the second amend want codify a pre-existing fundamental right to bear arms affect your conclusion that the second amendment does not protect a fundamental right? >> my conclusion in maloney case or in the u.s. sanchez was based on precedence and the holding of precedence that the second circuit did not apply to the states. the question -- >> excuse me. i'm sorry. i didn't mean to interrupt you.

what is the understanding of the test or standard the supreme court has used to consider a right be considered fundamental. i'm asking about what the supreme court has said in the past on this question. i recall, for instance, the court emphasizing that a right must be deeply rooted in our nation's history and tradition, that it is necessary to angelo-american regime or that is it is an enduring american tra i did. tradition. i think i've cited that accurately what the court has held what is a fundamental right. those are different formulations from the supreme court's decisions but i think the common thread there is obvious. now, is that your understanding of how the supreme court has evaluated whether a right should be deemed fundamental? >> the supreme court's decision with respect to the second circuit incorporation -- second amendment incorporation doctrine is reliant on old precedent of

the court and i don't mean to use that as precedent that doesn't bind when i call it old. i'm talking about precedent that was passed in the 19th century. since that time, there is no question that different cases addressing different amendments of the constitution have applied at -- a different framework and whether that framework in the language you quoted are precise or not, i haven't examined that framework in a while. to know if that language is precise or not. i'm not suggesting it's not, senator. i just can't affirm that description. >> sure. >> my point is, however, that once there is supreme court precedent directly on point, and second circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word fundamental,

then my panel, which was unanimous on this point, there were two other judges, and at least one other -- or one other panel on the seventh circuit by justice -- by justice. by judge estabrook has agreed that once you have settled precedent in an area, then on a precise question then the supreme court has to look at that. and under the deference one gives to stare decisis and the factors one considers in deciding whether that older precedent should be changed or not, that's what the supreme court will do. >> okay. as i noted, the supreme court put the second amendment in the same category as the first and the fourth amendments as pre-existing rights that the constitution merely codified. now, do you believe that the first amendment rights such as the right to freely exercise religion, the freedom of speech or the freedom of the press are

fundamental rights? >> those rights have been incorporated against the states. states must imply with them. so tow the extent that the court has held that. >> right. >> then they have been deemed fundamental as that term is understood legally. >> what about the fourth amendment about unreasonable searches and seizures? >> as well. >> same -- >> but with respect to the holding as it relates to that particular amendment. >> understood. let me turn to your decision in maloney versus cuomo. this is the first post heller about the second amendment decision to reach any federal appeals court, i think i should be more specific. in this case, you held that the second amendment applies only to the federal government, not to the states. this was after heller. am i right that your authority for that proposition was a supreme court's 1886 decision in

presser versus illinois? >> that plus some second circuit precedent that had held that it had not been -- that the amendment had not -- >> the presser was definitely one of the -- >> it was -- >> -- you relied on? in that case, i should say that case involved the 14th amendment's prilvegs and immunities clause. is that correct? are you aware that have? >> it may have. i haven't read it recently enough to remember exactly. >> you can take my word on it. >> okay. i'll accept -- >> thank you. last year's decision in heller involved the district of columbia so it did not decide the issue whether the second amendment applies to the states or is incorporated. but the court did say that its 19th century cases about applying the bill of rights of the states, quote, did not engage the sort of 14th amendment inquiry required by our later cases, unquote.

now here is my question. am i right that the later cases to which the court referred involved the 14th amendment's due process clause, rather than its privileges and immunities clause? >> as i said, i haven't examined those cases recently enough to be able to answer your question. senator, what i can say is that regardless of what those cases address or didn't address. -- whether it viewed the second amendment as applying against the state. to that extent, if that precedent got the supreme court's teachings wrong, it still would bind my court. >> i understand that. >> to the extent that justice -- >> i'm talking about something beyond that. i'm talking about what should be done here. isn't the presser case you relied on in maloney to say that

the second amendment does not apply to the states one of those 19th century cases where they used the privileges and immunities clause not the 14th amendment due process clause to incorporate? see, the later case have all used 14th amendment as far as i can recall. >> as i said, senator, i haven't looked at those cases to analyze it. i know what heller said about them. in maloney we were addressing a very narrow question. >> right. >> in the end the issue of whether that precedent should be followed or not, it's a quell the supreme court is going to address if it accepts in one of the three cases in which courts have looked at this question. court of appeals has. >> the reason i'm going over this is because i believe you've applied the wrong line of cases in maloney because you're applying cases that used the privileges and immunities clause

and not cases that used the 14th amendment process clause. let me clarify in your decision in maloney. as i read it you held that the second amendment does not apply to state or local governments. you also held that since the right to bear arms is not fundamental, all that is required to justify weapons restriction is some reasonably conceivable state effects that could provide a rational basis for it. am i right this is a very permissive standard that could be easily met, the rational basis standard? >> well, all standards of the court are attempting to ensure that government action has a basis. in some situations, the court looks at the action and applies a stricter secrete knee to the government's action. in others, if it's not a fundamental right in the way the law defines that but it hasn't been incorporated against the states, then the standard of

review is of rational basis. >> my point is it's a permissive standard that can be easily met, is that correct? >> well, the government can remedy a social problem that it is identifying or a difficulty identifying in conduct. >> sure. >> not in the most narrowly tailored way but one that reasonably seeks to achieve that result. in the end it can't be arbitrary and capricious. that's a word that is not -- the definition dr. >> maybe use the words more easily met, okay? >> as i said, the rational basis does look more broadly than strict secrete knee. >> that's my point. that's my point. as a result of this very permissive legal standard and it is permissive. doesn't your decision in maloney remain that any state or local

weapons ban would be remember miscible? >> sir, in maloney, we were talking about numchuk sticks. those are martial arts sticks. >> two sticks bound together by raw hide? >> exactly. when the sticks are swung which is what you do with them, is if there is anybody near you, you're going to be seriously injured. because that swinging mechanism can break arms, it can bust someone's skull. >> sure. >> it could cause not only serious, but fatal damage. so to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way new york did, the question before our court, because the second amendment has not been incorporated against the state, was did the state

have a rational basis for prohibiting the possession of this kind of instrument. so it's a very narrow question. every kind of regulation would come to a court with a particular statute which judicial -- judicial. legislative findings as to why a remedy is needed. and that statue would then be subject to rational basis review. >> the point i'm really making is that the decision was based upon 19th century case that relied on the privileges and immunities clause which is not the clause that we use to invoke the doctrine of incorporation today. and it's just an important consideration for you as you see these cases in the future. let me just change the subject. in the ricci case, i'm very concerned about that, because -- because of a variety of reasons.

the court split 5-4 on whether to grant summary judgment to the firefighters. and it was a summary judgment meaning it didn't have to be distributed to the other judges on the court. the only reason that judge kabranos raised the issue is he read it in the newspaper and said i want to see that case. then he got it and realized my gosh this is a case first impression. so the court split 5-4 -- >> no. >> no, it was 5-4 on whether to grant summary judgment to the firefighters. now, even the florida senators said that the firefighters deserve their gha court. to find more facts. but all nine justices disagreed with your handling of that particular case. now, thus your decision in ricci, even though a 5-4

decision, all nine of them disagreed with your handling. now, okay. but as you know, your decision in ricci versus destephano is controversial and people all over the country are tired that the courts imposing their will against one group or another without justification. the primary defense so far seems to be that you had no choice because you were bound by clear and long-standing precedent. most say you were bound by second precedent and some say it was supreme court precedent. so i need to ask you about this. to be clear, this case involved not only impact discrimination, but both disparate treatment and impact. that is what made it a case of first impression.

the city says they had to engage in disparate treatment or they would be sued for disparate impact. how these two concepts relate in the same case, but back to the issue of whether you were bound by clear long-standing precedent, as i recall your opinion in this case, whether it was the summary order or the procure yum opinion does not cite any supreme court or circuit court precedent at all, is that right? >> i believe they cited the bushy case. >> the only case citation in your opinion was to the district court opinion because you were simply adopting what the district court had said, rather than doing your own analysis of the issues. and i think that is right. but you can correct me if i'm wrong but i'd be happy to be corrected. didn't the district court say this was actually a very unusual

case? that is how the district court put it. quote, this case presents the opposite scenario of the usual challenge to an employment or promotional examination as plaintiffs attack not the use of allegedly racially discriminatory exam results but defendants reason for their refusal to use those results. unquote. now, this seems complicated, i know, but you know more about it than probably anybody here in this room. the district court cited three second circuit precedents but didn't -- didn't two of them the kirkland and bushy cases. didn't they deal with race norming of test scores? which did not occur in this case. >> they dealt with when employees could prove a disparate impact of a case and -- >> race -- [ inaudible ]. >> but the principles underlying when employees could bring a

case are the same. when when they establish a prima facie case, which is can employees be proved. and the basic principles of those cases were the same, regardless of what form with practice at issue took. >> okay. well, the third case, the hayden case, didn't it provide a result to the design of the test rather than the results of the test? >> i'm sorry, say this again. >> the hayden case, didn't it actually present a challenge to the design of the case rather than a result -- design of the employment test, rather than the result of the test? >> again, regardless of what the challenges about what test is at issue, the core holding of that precedent was that if an employee could show a disparate

impact from a particular practice or test or activity by a employer, then that employee had a prima facie case of liability under title 7. so the question is was the city subject to because the employees could bring a suit under established law, challenging that the city of new haven had violated title 7. that was the question. >> okay. was one of the reasons why it was a very important case. when the second circuit considered whether to review the decision in bulk, didn't you join an opinion admitting that the case presents, quote, difficult issues, unquote? >> well, the district court noted that it was a different

scenario, but it evaluated its decision -- it evaluated the case in a 78-page decision and gave a full explanation, one which the panel agreed with by adopting the opinion of the district court. those questions, as i indicated, are always whether given the risk the city was facing, the fact that it could face a lawsuit and its conclusion that perhaps a better test could be devised, that would not have a disparate impact, whether it was liable for discrimination, not disparate different treatment under the law. the supreme court came back and said, new standard. as i understood the dissenters in that case, what they were

saying is, to the majority, if you're going to apply a new standard, then give the second circuit a chance to look at the record and apply that standard. it wasn't disagreeing that the circuit wasn't applying the law as it was understood at the time, the dissenters, as i read what they were doing were saying, send it back to the circuit and look at them look at this in the first instance. >> as i understand, the judge didn't know the decision was done until he read it in the newspaper and then asked to look at it. his opinion joined by five other judges supporting review opens with these words. quote, this appeal raises important questions of first impression in our circuit. and indeed, in the nation regarding the application of the 14th amendment and title 7's

prohibition on discriminatory employment practices, end quote. was he wrong? >> that was his view. he expressed it in his opinion on his vote. i can't speak for him. i know that the -- >> i'm just asking you to speak for you. look, when the supreme court reversed you, justice kennedy wrote, quote, this action represents two provisions of title 7 to be interpreted and reconciled with few if any precedents in the courts of appeals discussing the issue, unquote. he was referring to the lack of precedent anywhere in the country, not just the second circuit. was he wrong? >> he was talking about, whether i understand him to be talking about, not whether the precedent that existed would have determined the outcome as the panel did, but whether the court should be looking at these two provisions in a different way to

establish a choice -- a different choice in considerations by the city. as i indicated, that argument about what new standard or new approach to the questions that the city should consider before it denies certification of a test, yes, had not been addressed by other courts, but the ability of a city when presented with a prima facie case to determine whether or not it would attempt to reach a nondisparate impact has been recognized by the court. >> even if the district court acknowledged that this was an unusual case, and if there was little or no second circuit precedent directly on point for a case like this, you know, one of the questions that i had was, why did your panel not just do your own analysis and your own opinion?

judge ka brans pointed out that the approach that simply adopts the district court's reasoning is reserved for cases that involve only, quote, straightforward questions that do not require explanation, unquote. as i asked you a minute, you yourself raised a question saying the case raised difficult questions. the issue that i'm raising is why did you not analyze the issues yourself and apply what law existed to the difficult and perhaps unprecedented cases or issues in the case? and whether you got it right or wrong, and the supreme court did find that you got it wrong, because they reversed it. i just can't understand the claim that they were just sticking to binding, long-standing clear precedent one all of that was part of the total decision and all nine justices found it to be a flaw that you didn't, you know, that

you didn't give serious, adequate consideration to what really turned out to be a case of first impression. look, it's easy always to look at these things in retrospect and you're under a lot of pressure here, but i just wanted to cover that case, because i think it's important that this case be covered and i think it's also important for you to know how i feel about these type of cases and i think many here in the united states senate, these are important cases. these are cases where people are discriminated against. and let me just one last point here. you have nothing to do with this. i know. but there's a rumor that people for the american way, that this organization has been smearing frank ricci, who is only one of 20 plaintiffs