Bench Memos

Senator Kyl’s Second-Round Questioning

Senator Kyl is masterful again. He points out that her earlier claim — that her hands in Ricci were bound by Supreme Court and Second Circuit precedent — is simply not true. What is the precedent, he asks, and asks.  She doesn’t answer, and doesn’t answer. Finally she cites the Bushey decision — a 1984 Second Circuit decision predating all kinds of intervening Supreme Court decisions and statutory amendments. Then Kyl points out that, even if this were binding precedent, it could have been overturned by en banc review, which she voted against (the deciding vote, as Senator Sessions pointed out yesterday). She has no answer to this, either. Nor does she have a convincing answer to Senator Kyl’s next question, regarding her panel’s back-of-the-hand rejection of a case that ultimately was important enough to command the attention of a majority-minus-one of the Second Circuit, the Supreme Court (which rejected her approach 9-0, as Senator Kyl notes), and the nation. On the question of whether the Supreme Court rejected her approach 9-0, she says it’s hard to say because “there were a lot of opinions in that case.” Ridiculous. There were four opinions, and obviously the majority and the two concurrences (by Scalia and Alito) rejected her approach. And Ginsburg does, too (see footnote 10 and page 23). She is not telling the truth.

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