Judge Sotomayor repeated her mistaken position that Second Circuit precedent compelled the panel result in Ricci. (I am not contesting that there were circuit precedents that had some bearing on the question, but they didn’t remotely justify the panel’s resort to an unpublished summary order.) Further, as Senator Kyl pointed out, Sotomayor was free to support en banc review (but she instead provided the decisive vote against en banc review).