[Senate Hearing 111-503]
[From the U.S. Government Publishing Office]
S. Hrg. 111-503
CONFIRMATION HEARING ON THE NOMINATION OF HON. SONIA SOTOMAYOR, TO BE
AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
JULY 13-16, 2009
__________
Serial No. J-111-34
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
55-940 WASHINGTON : 2010
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PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matt Miner, Republican Chief Counsel
C O N T E N T S
----------
JULY 13-16, 2009
STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 29
prepared statement........................................... 824
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 38
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 32
prepared statement........................................... 853
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 40
prepared statement........................................... 870
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 19
prepared statement........................................... 884
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 14
prepared statement........................................... 887
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 51
prepared statement........................................... 896
Graham, Hon. Lindsey, a U.S. Senator from the State of South
Carolina....................................................... 26
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 16
prepared statement........................................... 916
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 11
prepared statement........................................... 926
Kaufman, Hon. Edward E., a U.S. Senator from the State of
Delaware....................................................... 46
prepared statement........................................... 979
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 43
prepared statement........................................... 991
Kohl, Hon. Herb, a U.S. Senator from the State of Wisconsin...... 8
prepared statement........................................... 996
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 21
prepared statement........................................... 1005
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 2
prepared statement........................................... 1085
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 24
prepared statement........................................... 1307
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 5
prepared statement........................................... 1318
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 48
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 35
prepared statement........................................... 1383
PRESENTERS
Gillibrand, Hon. Kirsten E., a U.S. Senator from the State of New
York, presenting Sonia Sotomayor, Nominee to be an Associate
Justice of the Supreme Court of the United States.............. 55
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York presenting Sonia Sotomayor, Nominee to be an Associate
Justice of the Supreme Court of the United States.............. 54
STATEMENT OF THE NOMINEE
Sotomayor, Sonia, Nominee to be an Associate Justice of the
Supreme Court of the United States
July 13, 2009................................................ 57
July 14, 2009................................................ 62
July 15, 2009................................................ 325
July 16, 2009................................................ 414
Questionnaire................................................ 152
opening statement............................................ 1343
WITNESSES
Askew, Kim J., ESQ., Chair, Standing Committee on the Federal
Judiciary, American Bar Association, Accompanied by Mary M.
Boies, Member, Standing Committee on the Federal Judiciary,
American Bar Association....................................... 470
Bloomberg, Michael, Mayor, City of New York...................... 482
Canterbury, Chuck, President, National Fraternal Order of Police,
Myrtle Beach, South Carolina................................... 517
Chavez, Linda, Chairman, Center for Equal Opportunity, Falls
Church, Virginia............................................... 493
Cone, David B., Professional Baseball player, New York........... 519
Freeh, Louis J., former Director of the FBI...................... 516
Froman, Sandra S., Attorney, Gun Rights Advocate, and former
President of the National Rifle Association, Tucson, Arizona... 525
Henderson, Wade, President & CEO, Leadership Conference on Civil
Rights......................................................... 486
Hynes, Patricia, Association of the Bar of the City of New York.. 588
Jeffries, Tim, Scottsdale, Arizona............................... 543
Kirsanow, Peter N., Partner, Benesch, Friedlander, Copland &
Aronoff LLP and Commissioner, Commission on Civil Rights,
Cleveland, Ohio................................................ 491
Kopel, David B., Research Director, Independence Institute,
Golden, Colorado, Associate Policy Analyst, Cato Institute,
Washington, DC................................................. 527
McDaniel, Dustin, Attorney General, State of Arkansas............ 477
McGinnis, John O., Professor, Northwestern University School of
Law, Chicago, Illinois......................................... 546
Morgenthau, Robert, former District Attorney, New York, New York. 484
Rao, Neomi, Professor, George Mason University School of Law,
Arlington, Virginia............................................ 545
Ricci, Frank, New Haven Fire Department, New Haven, Connecticut.. 488
Rivkin, David B., Jr., Partner, Baker & Hostetler LLP,
Washington, DC................................................. 564
Rosenkranz, Nicholas Quinn, Associate Professor of Law,
Georgetown University Law Center, Washington, DC............... 548
Serrano, Jose E., a U.S. Representative from New York............ 562
Shaw, Theodore M., Professor, Columbia Law School, New York, New
York........................................................... 540
Somin, Ilya, Assistant Professor of Law, George Mason University,
Arlington, Virginia............................................ 529
Stith, Kate, Lafayette S. Foster Professor of Law, Yale Law
School, New Haven, Connecticut................................. 521
Vargas, Ben, Lieutenant, New Haven Fire Department............... 489
Velazquez, Nydia M., a Representative in Congress from the State
of New York.................................................... 538
Yoest, Charmaine, President and CEO, Americans United for Life,
Washington, DC................................................. 523
QUESTIONS AND ANSWERS
Responses of Kim J. Askew to questions submitted by Senators
Grassley and Sessions.......................................... 576
Responses of Sandy Froman to questions submitted by Senator Hatch 581
Responses of Stephen Halbrook to questions submitted by Senators
Coburn and Hatch............................................... 585
Responses of Peter Kirsanow to questions submitted by Senator
Hatch.......................................................... 596
Responses of David Kopel to questions submitted by Senators
Coburn and Hatch............................................... 599
Responses of John O. McGinnis to questions submitted by Senator
Hatch.......................................................... 604
Responses of Neomi Rao to questions submitted by Senators
Sessions and Hatch............................................. 606
Responses of David Rivkin to questions submitted by Senators
Hatch and Sessions............................................. 612
Responses of Nicholas Rosenkranz to questions submitted by
Senators Sessions, Hatch and Klobuchar......................... 615
Responses of Ilya Somin to questions submitted by Senators
Sessions, Grassley and Hatch................................... 624
Responses of Sonia Sotomayor to questions submitted by Senators
Sessions, Grassley, Kyl, Cornyn and Coburn..................... 633
Cynthia Hogan, Counsel to the Vice President, letter......... 681
Supplement questionnaire..................................... 683
Letters from Senator Sessions, July 8, 2009.................. 703
Responses to Senator Sessions letters........................ 709
Responses of Charmaine Yoest to questions submitted by Senator
Coburn......................................................... 715
SUBMISSIONS FOR THE RECORD
Acosta, Raymond L., Federal Bar Association, Puerto Rico Chapter,
resolution..................................................... 718
Alliance for Justice, Washington, DC, statement.................. 719
Americans for Democratic Action, Darryl H. Fagin, Legislative
Director, Washington, DC, letter............................... 736
Americans United for Life, Charmaine Yoest, Ph.D., President and
CEO, Washington, DC:
May 4, 2009, letter.......................................... 737
July 10, 2009, letter........................................ 738
July 23, 2009, letter........................................ 741
Comparison Chart............................................. 746
Aponte, Mari Carmen, former Executive Director, Puerto Rico
Federal Affairs Administration; Sandra Ruiz Butter, former
President, VIP Community Services; Ernest J. Collazo, Collazo
Carling & Mish LLP; George A. Davidson, Hughes Hubbard & Reed
LLP; Dr. Ricardo Fernandez, President, Lehman College, City
University of New York; Andres V. Gil; Davis, Polk & Wardwell,
LLP; Ambassador Gabriel Guerra-Mondragon, former U.S.
Ambassador to Chile; Dorothy James, former Provost and Dean of
Faculty, Connecticut College; Harold S. Lewis Jr., Walter F.
George Professor of Law, Mercer University Walter F. George
School of Law; Benito Romano Freshfields Bruckhaus Deringer
LLP; Judah C. Sommer, Senior Vice President, UnitedHealth
Group, Inc, July 7, 2009, letter............................... 757
Aponte, Ricardo, Esq., Executive Director, Republican Part of
Puerto Rico, San Juan, Puerto Rico, June 22, 2009, letter...... 760
Arizona Hispanic, Chamber of Commerce, Armando A. Contreras,
President and CEO, Phoenix, Arizona, letter.................... 763
Arizona Law School, Charles Calleros, June 10, 2009, letter...... 765
Arredondo, Rudy, President and CEO, National Latino Farmers &
Ranchers Trade Association, Washington, DC, May 6, 2009, letter 767
Askew, Kim J., Esq., Chair, American Bar Association, Standing
Committee on the Federal Judiciary, Washington, D.C., statement
and attachment................................................. 769
ASPIRA Association Inc., Ronald Blackburn Moreno, President and
CEO, Washington, DC, June 15, 2009, letter..................... 801
Association of the Bar of the City of New York, Patricia M.
Hynes, President, New York, New York:
June 30, 2009, letter........................................ 802
June 30, 2009, article....................................... 807
Association of Prosecuting Attorneys, Glenn F. Ivey, Chairman,
and David R. LaBahn, President and CEO, Washington, DC, July
10, 2009, letter............................................... 809
Baca, Leroy D., Sheriff, Los Angeles County, Montereo Park,
California, July 7, 2009, letter............................... 810
Bloomberg, Michael, Mayor of New York, New York, statement and
letter......................................................... 812
California Women Lawyers, Jean Pledger, President, Sacramento,
California, July 11, 2009, letter.............................. 816
Canterbury, Chuck, President, National Fraternal Order of Police,
Myrtle Beach, South Carolina, statement........................ 817
Center for Inquiry Office of Public Policy, Toni Van Pelt, Policy
Director, Washington, DC, July 9, 2009, letter................. 828
Chavez, Linda, Chairman, Center for Equal Opportunity, Falls
Church, Virginia, statement.................................... 830
Clinton, Hon. William Jefferson (Bill), U.S. State President,
July 14, 2009, letter.......................................... 841
Club for Growth, Chris Chocola, President, Washington, DC, July
14, 2009, letter............................................... 842
CNN, Ken Starr Backs Sotomayor Court Bid, June 19, 2009, article. 844
Concerned Women for America Legislative Action Committee, Wendy
Wright, President, Washington, DC, July 9, 2009, letter........ 845
Cone, David B., Professional Baseball player, New York, statement 848
Corralejo, Jorge C., Chairman & CEO, Latino Business Chamber of
Greater Los Angeles, Los Angeles, California, June 2, 2009,
letter......................................................... 856
C-SPAN, July, 10, 2009, article.................................. 858
Cuban American National Council, Inc., Guarione M. Diaz,
President and CEO, Washington, DC, June 6, 2009, letter........ 861
Cuomo, Andrew M., Attorney General, New York, New York, June 12,
2009, letter................................................... 863
Diaz, Manuel A., Mayor, City of Miami, Miami, Florida, June 1,
2009, letter................................................... 864
Diaz, Nelson A., Cozen O'Connor, Philadelphia, Pennsylvania, June
3, 2009, letter................................................ 865
Detectives' Endowment Association, Inc., Michael J. Palladino,
President, New York City Police Department, New York, New York,
June 11, 2009, letter.......................................... 867
Doan, Lurita, Great Falls, Virginia, June 13, 2009, letter....... 868
Earthjustice; Center for Biological Diversity; Center for
International Environmental Law; Clean Water Action; Defenders
of Wildlife; Endangered Species Coalition; Friends of the
Earth; GreenPeace USA; International Fund for Animal Welfare;
League of Conservation Voters; National Audubon Society;
National Hispanic Environmental Council; National Wildlife
Federation; Sierra Club; and The Wilderness Society, etc., July
9, 2009, joint letter.......................................... 873
Epps, JoAnne A., Dean, Temple University Beasley School of Law,
Co-Chair of the Committee for the Evaluation of Supreme Court
Nominees, National Association of Women Lawyers, Philadelphia,
Pennsylvania, statement........................................ 878
Feldman, Richard J., Esq., statement............................. 891
Fortuno, Luis G., Governor, Commonwealth of Puerto Rico, San
Juan, Puerto Rico, May 26, 2009, letter........................ 894
FRC Action, Thomas McClusky, Senior Vice President, Washington,
DC, July 14, 2009, letter...................................... 899
Freeh, Louis J., former Director of the FBI, statement........... 900
Froman, Sandra S., Attorney, Gun Rights Advocate, and former
President of the National Rifle Association, Tucson, Arizona,
statement...................................................... 904
Garcia, Michael J., former Attorney for the Southern District of
New York, New York City, New York, statement................... 910
Gonzalez-Valentin, Katherine, President, Federal Bar Association,
June 1, 2009, letter........................................... 913
Gonzalez-Colon, Jennifer A., Vice Chair of Puerto Rico's
Republican Party, San Juan, Puerto Rico, June 9, 2009, letter.. 914
Halbrook, Stephen P., Attorney, Fairfax, Virginia, statement..... 919
Haynes, Patricia, Association of the Bar of the City of New York,
statement...................................................... 932
Helmke, Paul, President, Brady Campaign to Prevent Gun Violence,
Washington, DC, July 16, 2009, letter.......................... 940
Henderson, Wade, President and CEO, Leadership Conference on
Civil Rights, Washington, D.C., statement...................... 941
Hispanic Engineers Business Corporation, Rodrigo T. Garcia, P.E.,
Monterey Park, California, June 8, 2009, letter................ 948
Hollman, K. Holly, General Counsel, Baptist Joint Committee for
Religious Liberty, article..................................... 949
Holmes, George, Executive Director & Chief Operating Officer,
CORE-Congress of Racial Equality, New York, New York, July 17,
2009 letter to Senator Cardin, duplicate letters to Senators
Coburn, Cornyn, Durbin, Franken, Feingold, Feinstein, Graham,
Grassley, Hatch, Kaufman, Klobuchar, Kohl, Kyl, Leahy,
Sessions, Specter, Schumer and Whitehouse being retained in
Committee files................................................ 954
Human Rights Campaign, Washington, DC, statement................. 955
Human Rights Institute, Columbia Law School, New York, New York,
statement...................................................... 959
Iglesias, Elizabeth M., Professor, University of Miami School of
Law, Center for Hispanic & Caribbean Legal Studies
June 3, 2009, letter......................................... 963
June 18, 2009, letter........................................ 967
Jeffries, Tim, Scottsdale, Arizona, statement.................... 974
Kirsanow, Peter N., Partner, Benesch, Friedlander, Copland &
Aronoff LLP and Commissioner, Commission on Civil Rights,
Cleveland, Ohio, statement..................................... 982
Kopel, David B., Research Director, Independence Institute,
Golden, Colorado, Associate Policy Analyst, Cato Institute,
Washington, D.C., statement.................................... 999
Land, Richard D., President, The Ethics & Religious Liberty
Commission, Washington, DC, July 14, 2009, letter.............. 1008
Latino Justice PRLDEF, statement................................. 1009
Law Clerks, former, June 1, 2009, Letter......................... 1011
LDF Defend Education Empower, NAACP Legal Defense and Educational
Fund, Inc., statement.......................................... 1015
Law Professor, undersigned, letter and data table................ 1046
Lawyers' Committee for Civil Rights, Nicholas T. Christakos, Co-
Chair and John S. Kiernan, Co-chair, Washington, DC, letter and
attachment..................................................... 1075
Leadership Conference on Civil Rights, Washington, DC, July 7,
2009, joint letter............................................. 1082
Leon, Lilia R., Councilwoman, City of Commerce, Commerce,
California, June 4, 2009, letter............................... 1088
Major Cities Chiefs Association, William J. Bratton, Chief of
Police, June 7, 2009, letter................................... 1089
MALDEF, Henry L. Solano, Interim President & General Counsel,
Washington, DC, July 16, 2009, letter.......................... 1090
MANA de Albuquerque, Lydia Lopez Maestas, Albuquerque, New
Mexico:
June 2, 2009, letter......................................... 1093
June 9, 2009, letter......................................... 1094
Martinez, Iris Y., State Senator 20th District, Chicago,
Illinois, letter and Resolution................................ 1196
McDaniel, Dustin, Attorney General for the State of Arkansas,
Little Rock, Arkansas, statement............................... 1100
McGinnis, John O., Professor, Northwestern University School of
Law, Chicago, Illinois, statement.............................. 1106
Melendez-Altieri, Maria E., DMD, Mayor of the City of Ponce,
Ponce, Puerto Rico, June 5, 2009, letter....................... 1125
Morgenthau, Robert M., District Attorney, Manhattan, New York,
statement...................................................... 1126
NARAL Pro-Choice America Foundation, Nancy Keenan, President,
statement...................................................... 1130
National Advocacy Organizations, July 7, 2009, joint letter...... 1141
National Association of Latino Elected and Appointed Officials,
Arturo Vargas, Executive Director, Los Angeles, California,
July 10, 2009, letter.......................................... 1144
National Association of Police Organizations, Inc, Thomas J. Nee,
President, Alexandria, Virginia, June 5, 2009, letter.......... 1146
National Association of Social Workers, Elizabeth J. Clark, PhD,
ACSW, MPH, Executive Director, Washington, DC, June 3, 2009,
letter......................................................... 1147
National Association of Women Lawyers, Lisa B. Horowitz,
Washington, DC:
July 7, 2009, letter......................................... 1148
July 7, 2009, news release................................... 1158
National Council of Jewish Women, Nancy Ratzan, Washington, DC,
July 13, 2009, letter.......................................... 1160
National District Attorneys Association, Joseph I Cassilly,
President, Alexandria, Virginia, June 8, 2009, letter.......... 1161
National Fraternal Order of Police, Chuck Canterbury, National
President, Washington, DC, June 9, 2009, letter................ 1163
National Hispanic Christian leadership Conference, Dr. Jesse
Miranda, President, Sacramento, California, letter............. 1165
National Hispanic Leadership Agenda, Dr. Gabriela D. Lemus,
Chair, Washington, DC, June 9, 2009, letter.................... 1167
National Journal, Washington, DC, articles....................... 1168
National Latino Peace Officers Association, Art Acevedo, National
President, Santa Ana, California, May 26, 2009, letter......... 1174
National Organization of Black Law Enforcement Executives, Joseph
A. McMillan, National President, Alexandria, Virginia, June 8,
2009, letter................................................... 1175
National Puerto Rican Coalition, Inc., Rafael Fantauzzi,
President & CEO, Washington, DC, July 13, 2009, letter......... 1176
National Rifle Association of America, Chris W. Cox, Executive
Director, Fairfax, Virginia, July 7, 2009, letters............. 1177
National Sheriffs' Association, Sheriff David A. Goad, President
and Aaron D. Kennard, Executive Director, Alexandria, Virginia,
June 8, 2009, letter........................................... 1182
National Women's Law Center, Washington, D.C. article............ 1183
New York City Housing Authority, Ricardo Elias Morales, Chairman,
New York, New York, May 28, 2009, letter....................... 1187
New York County District Attorney, former Colleagues, New York,
New York, July 2, 2009, letter................................. 1188
New York Daily News, May 28, 2009, article....................... 1190
New York State Law Enforcement Council, New York, New York,
letter......................................................... 1191
New York Times:
May 27, 2009, article........................................ 1192
May 27, 2009, article........................................ 1196
June 6, 2009, article........................................ 1198
June 16, 2009, article....................................... 1202
June 30, 2009, article....................................... 1204
July 10, 2009, article....................................... 1207
July 12, 2009, article....................................... 1210
Ortiz, Felix W., Member of Assembly, Kings County, May 28, 2009.. 1221
Pace Law School, Faculty Members, White Plains, New York, June
23, 2009, letter............................................... 1222
People for the American Way, Michael B. Keegan, President, Marge
Baker, Executive Vice President for Policy and Program
Planning, Washington, DC, July 10, 2009........................ 1224
Presente.org, Berkeley, California, July 11, 2009, letter (over
5,000 signatures being retained in Committee files)............ 1230
Primus, Richard, Professor of Law, John Simon Guggenheim Memorial
Foundation Fellow in Constitutional Studies, Ann Arbor,
Michigan, June 16, 2009, letter................................ 1232
Professors of Disability Law, Michael Waterstone, Professor of
Law, Associate Dean of Academic Programs, Loyola Law School,
Los Angeles, California, etc, June 30, 2009, letter............ 1241
Quintana, Rachel, Representative, El Paso, Texas, June 29, 2009,
letter......................................................... 1245
Rao, Neomi, Professor, George Mason University School of Law,
Arlington, Virginia, statement................................. 1247
Ricci, Frank, New Haven Fire Department, New Haven, Connecticut,
statement...................................................... 1255
Rivkin, David B., Jr., Partner, Baker & Hostetler LLP,
Washington, DC, statement...................................... 1259
Roman, Encida, Esq., letter...................................... 1270
Romero, Ramona E., National President, Hispanic National Bar
Association, statement......................................... 1271
Rosenkranz, Nicholas Quinn, Associate Professor of Law,
Georgetown University Law Center, Washington, DC, statement.... 1284
Rubin, Jennifer, June 16, 2009, article.......................... 1292
Russo-Killeen, Carmela, Cardinal High School Spellman, Bronx, New
York, June 26, 2009, letter.................................... 1299
Rivera-O'Reilly, Nereida, Senator, Virgin Island, June 12, 2009,
letter......................................................... 1300
San Juan Municipal Legislature, Carmen M. Quinones, San Juan,
Puerto Rico, June 2, 2009, letter.............................. 1301
Schoenke, Ray, President, American Hunters & Shooters,
Association, June 29, 2009, letter............................. 1305
Scotusblog.com, May 29, 2009, posting............................ 1310
Serrano, Jose E., a U.S. House of Representative from New York:
statement.................................................... 1311
October 2, 1998, article..................................... 1314
October 2, 1998, tribute..................................... 1316
Servera, Ivette, Chairperson, Connecticut General Assembly's,
Latino and Puerto Rican Affairs Commission, Hartford,
Connecticut, June 17, 2009, letter............................. 1317
Shaw, Theodore M., Professor, Columbia Law School, New York, New
York, statement................................................ 1323
Sierra Club, Carl Pope, Executive Director and Dr. Gabriela
Lemus, Chair, National Latino Coalition on Climate Changes..... 1330
Society of American Law Teachers, Margaret Martin Barry, Co-
President and Deborah Waire Post, Co-President, Central Islip,
New York, June 25, 2009, letter................................ 1331
Somin, Ilya, Assistant Professor of Law, George Mason University,
Arlington, Virginia, statement................................. 1333
Southern New York Female Lawyers, letter......................... 1345
Stith, Kate, Lafayette S. Foster Professor of Law, Yale Law
School, New Haven, Connecticut, statement...................... 1352
Trac Report Inc., report......................................... 1355
United States Hispanic Chamber of Commerce, Washington, DC, June
23, 2009, letter............................................... 1359
United States Senate, Judiciary Committee, Majority Staff,
Washington, DC, study.......................................... 1362
Vargas, Ben, Lieutenant, New Haven, Connecticut, statement....... 1365
Velazquez, Nydia M., a Representatives in Congress from the State
of New York, statement......................................... 1367
Wall Street Journal, July 16, 2009, article...................... 1369
Walpin, Gerald, New York, New York, letter and statement......... 1371
Washington, Post, July 9, 2009, article.......................... 1377
Wexler, Chuck, Executive Director, Police Executive Research
Forum, Washington, DC, June 8, 2009, letter.................... 1381
Women of EL Barrio, Sandra Talavera, Chair, El Barrio, New York,
May 8, 2009, letter............................................ 1386
Yoest, Charmaine, President and CEO, Americans United for Life,
Washington, DC, statement...................................... 1388
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria determined by the Committee, list:
Brennan Center for Justice at New York University School of Law,
Monica Young, New York, New York, report
Hispanic National Bar Association, Report
Lawyers' Committee for Civil Rights Under Law, Washington, DC,
Report
Congressional Research Service, Anna C. Henning, Coordinator,
Legislative Attorney and Kenneth R. Thomas, Coordinator,
Legislative Attorney, June 19, 2009, report
Holmes, George, Executive Director & Chief Operating Officer,
CORE-Congress of Racial Equality, New York, New York, July 17,
2009 duplicate letters to Senators Coburn, Cornyn, Durbin,
Franken, Feingold, Feinstein, Graham, Grassley, Hatch, Kaufman,
Klobuchar, Kohl, Kyl, Leahy, Sessions, Specter, Schumer and
Whitehouse
NOMINATION OF HON. SONIA SOTOMAYOR, TO BE AN ASSOCIATE JUSTICE OF THE
SUPREME COURT OF THE UNITED STATES
----------
MONDAY, JULY 13, 2009
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 09:58 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman,
Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham,
Cornyn, and Coburn.
Chairman Leahy. I will give everybody a chance to get in
place here.
What we are going to do, we are going to have opening
statements from members--and, of course, this is, as we all
know, the confirmation hearing on the nomination of Judge Sonia
Sotomayor to be a Justice of the United States Supreme Court.
Judge Sotomayor., welcome to the Senate Judiciary
Committee. You have been before us twice before when President
George H.W. Bush nominated you to be district judge and then,
of course, when President Clinton nominated you as a court of
appeals judge.
Before we begin the opening statements of the Senators, I
know you have family members here, and I do not know if your
microphone is on or not, but would you please introduce the
members of your family?
Judge Sotomayor. If I introduced everybody that's family-
like, we'd be here all morning, so I'm----
Chairman Leahy. Okay. I will tell you what. You know what I
am going to do?
Judge Sotomayor. Thank you, Mr. Chairman.
Chairman Leahy. Because someday this will be in the
archives, this transcript. Introduce whomever you like, and
then we will hold the transcript open for you to add any other
names you want.
[Laughter.]
Judge Sotomayor. Thank you, Mr. Chairman. I will limit
myself to just my immediate family.
Sitting behind me is my brother, Juan Sotomayor. Next to
him is my mom, Celina Sotomayor. Next to her is my favorite
husband of my mom, Omar Lopez. Next to him is my niece, Kylie
Sotomayor. And next to her is her mom and my sister-in-law,
Tracy Sotomayor. Then there is Corey, Connor--Corey and Connor
Sotomayor. I shouldn't have said--I should have said their last
name first together. And the remainder of that row is filled
with godchildren and dear friends. But this is my immediate
family.
Chairman Leahy. Well, thank you very much. I remember
reading about the marshals being surprised at your swearing-in
as a district court judge because they had never seen such a
large crowd of friends and supporters arrive.
What we are going to do is each Senator will give a 10-
minute opening statement. I would hope that all Senators would
be able to be here today. If they are not, and if they want to
give an opening statement, it will have to come out of their
question time tomorrow.
Senator Schumer will give a shorter opening statement than
the others because he is going to reserve some of his time as a
later introduction.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
VERMONT, CHAIRMAN, COMMITTEE ON THE JUDICIARY
Chairman Leahy. I would note for the record we are
considering the nomination of Judge Sonia Sotomayor to be a
Justice of the United States Supreme Court. Our Constitution is
interesting in this regard. We have over 300 million Americans,
but only 101 people get a chance to say who is going to be on
the Supreme Court: first and foremost, of course, the
President--in this case President Obama--who made the
nomination; and then 100 Senators have to stand in place of all
almost 320 million Americans in considering the appointment.
The President has done his part. He has made a historic
nomination. Now the Senate has to do its part on behalf of the
Senate people--on behalf of the American people.
President Obama often quotes Dr. Martin Luther King, Jr.'s
insight that ``the arc of the moral universe is long, but it
bends toward justice.'' Each generation of Americans has sought
that arc toward justice. We have improved upon the foundation
of our Constitution through the Bill of Rights, the Civil War
amendments, the 19th Amendment's expansion of the right to vote
to women, the Civil Rights Act of 1964 and Voting Rights Act of
1965, and the 26th Amendment's extension of the right to vote
to young people. These actions have marked progress toward our
more perfect union, and I believe this nomination can be
another step along that path.
Judge Sotomayor.'s journey to this hearing room is a truly
American story. She was raised by her mother, Celina, a nurse,
in the South Bronx. Like her mother, Sonia Sotomayor worked
hard. She graduated as the valedictorian of her class at
Blessed Sacrament and at Cardinal Spellman High School in New
York. She was a member of just the third class at Princeton
University in which women were included. She continued to work
hard, including reading classics that had been unavailable to
her when she was younger and arranging tutoring to improve her
writing. She graduated summa cum laude, Phi Beta Kappa; she was
awarded the M. Taylor Senior Pyne Prize for scholastic
excellence and service to the university. I would mention that
is an honor that is given for outstanding merit.
After excelling at Princeton, she entered Yale Law School,
where she was an active member of the law school community.
Upon graduation, she had many options, but she chose to serve
her community in the New York District Attorney's Office. And I
might say parenthetically, every one of us who has had the
privilege to be a prosecutor knows what kind of a job that is
and how hard it is. There she prosecuted murders, robberies,
assaults, and child pornography.
The first President Bush named her to the Federal bench in
1992, and she served as a trial judge for 6 years. President
Clinton named her to the United States Court of Appeals for the
Second Circuit where she has served for more than 10 years. She
was confirmed each time by a bipartisan majority in the Senate.
Judge Sotomayor's qualifications are outstanding. She has
more Federal court judicial experience than any nominee to the
United States Supreme Court in nearly 100 years. She is the
first nominee in well over a century to be nominated to three
different Federal judgeships by three different Presidents. She
is the first nominee in 50 years to be nominated to the Supreme
Court after serving as both a Federal trial judge and a Federal
appellate judge. She will be the only current Supreme Court
Justice to have served as a trial judge. She was a prosecutor
and a lawyer in private practice. She brings a wealth and
diversity of experience to the Court. I hope all Americans are
encouraged by Judge Sotomayor's achievements and by her
nomination to the Nation's highest court. Hers is a success
story in which all--all--Americans can take pride.
Those who break barriers often face the added burden of
overcoming prejudice, and that has been true on the Supreme
Court. Thurgood Marshall graduated first in his law school
class. He was the lead counsel for the NAACP Legal Defense
Fund. He sat on the United States Court of Appeals for the
Second Circuit; he served as the Nation's top lawyer, the
Solicitor General of the United States. He won a remarkable 29
out of 32 cases before the Supreme Court. But despite all of
these qualifications and achievements, when he was before the
Senate for his confirmation, he was asked questions designed to
embarrass him, questions such as ``Are you prejudiced against
the white people of the South? '' I hope that is a time of our
past.
The confirmation of Justice Louis Brandeis, the first
Jewish American to be nominated to the high Court, was a
struggle rife with anti-Semitism and charges that he was a
``radical.'' The commentary at the time included questions
about ``the Jewish mind'' and how ``its operations are
complicated by altruism.'' Likewise, the first Catholic nominee
had to overcome the argument that ``as a Catholic he would be
dominated by the pope.''
We are in a different era, and I would trust that all
members of this Committee here today will reject the efforts of
partisans and outside pressure groups that have sought to
create a caricature of Judge Sotomayor while belittling her
record, her achievements, and her intelligence. Let no one
demean--let no one demand--this extraordinary woman, her
success, or her understanding of the constitutional duties she
has faithfully performed for the last 17 years. And I hope all
Senators will join together as we did when we considered
President Reagan's nomination of Sandra Day O'Connor as the
first woman to serve on the Supreme Court. There every Democrat
and every Republican voted to confirm her.
This hearing is an opportunity for Americans to see and
hear Judge Sotomayor for themselves and to consider her
qualifications. It is the most transparent confirmation hearing
ever held. Her decisions and confirmation materials have been
posted online and made publicly available. The record is
significantly more complete than that available when we
considered President Bush's nominations of John Roberts and
Samuel Alito just a few years ago. The judge's testimony will
be carried live on several television stations and also live
via webcast--something that I have set for the Judiciary
Committee website.
My review of her judicial record leads me to conclude that
she is a careful and restrained judge with a deep respect for
judicial precedent and for the powers of the other branches of
the Government, including the law-making role of Congress. That
conclusion is supported by a number of independent studies that
have been made of her record and shines through in a
comprehensive review of her tough and fair record in criminal
cases. She has a deep understanding of the real lives--the real
lives--of Americans and the duty of law enforcement to help
keep Americans safe and the responsibilities of all of us to
respect the freedoms that define America.
Now, unfortunately, some have sought to twist her words and
her record and to engage in partisan political attacks.
Ideological pressure groups began attacking her even before the
President made his selection. They then stepped up their
attacks by threatening Republican Senators who do not oppose
her. That is not the American way, and that should not be the
Senate way.
In truth, we do not have to speculate about what kind of a
Justice she will be because we have seen what kind of a judge
she has been. She is a judge in which all Americans can have
confidence. She has been a judge for all Americans, and she
will be a Justice for all Americans.
Our ranking Republican Senator on this Committee reflected
on the confirmation process recently, saying: ``What I found
was that charges come flying in from right and left that are
unsupported and false. It's very, very difficult for a nominee
to push back. So I think we have a high responsibility to base
any criticisms that we have on a fair and honest statement of
the facts and that nominees should not be subjected to
distortions of their record.'' I agree with Senator Sessions.
As we proceed, let no one distort the judge's record. Let us be
fair to her and to the American people by not misrepresenting
her views.
We are a country bound together by our magnificent
Constitution. It guarantees the promise that our country will
be a country based on the rule of law. In her service as a
Federal judge, Sonia Sotomayor has kept faith with that
promise. She understands that there is not one law for one race
or another. There is not one law for one color or another.
There is not one law for rich and a different one for poor.
There is only one law. And, Judge, I remember so well when you
sat in my office, and you said that ``ultimately and
completely'' a judge has to follow the law, no matter what
their upbringing has been. That is the kind of fair and
impartial judging the American people expect. That is respect
for the rule of law. And that is the kind of judge Judge
Sotomayor has been. That is the kind of fair and impartial
Justice she will be and that the American people deserve.
Judge Sotomayor. has been nominated to replace Justice
Souter, whose retirement last month has left the Court with
only eight Justices. Justice Souter served the Nation with
distinction for nearly two decades on the Supreme Court with a
commitment to justice, an admiration for the law, and an
understanding of the impact of the Court's decisions on the
daily lives of ordinary Americans. I believe that Judge
Sotomayor will be in this same mold and will serve as a Justice
in the manner of Sandra Day O'Connor, committed to the law and
not to ideology.
In the weeks and months leading up to this hearing, I have
heard the President and Senators from both sides of the aisle
make reference to the engraving over the entrance of the
Supreme Court. I look at that every time I go up there. It is
carved in Vermont marble, and it says: ``Equal Justice Under
Law.'' Judge Sotomayor's nomination keeps faith with those
words.
Senator Sessions.
STATEMENT OF JEFF SESSIONS, A U.S. SENATOR FROM ALABAMA,
RANKING MEMBER, COMMITTEE ON THE JUDICIARY
Senator Sessions. Thank you, Mr. Chairman. Thank you for
your leadership, and I believe you have set up some rules for
the conducting of this hearing that are consistent with past
hearings and I believe allow us to do our work together. And I
have enjoyed working with you on this process.
Chairman Leahy. Thank you.
Senator Sessions. I hope this will be viewed as the best
hearing this Committee has ever had. Why not? We should seek
that. So I join Chairman Leahy, Judge Sotomayor, in welcoming
you here today.
It marks an important milestone in your life. I know your
family is proud, and rightly so. And it is a pleasure to have
them with us today.
I expect this hearing and resulting debate will be
characterized by a respectful tone, a discussion of serious
issues, a thoughtful dialogue, and maybe some disagreements.
But we have worked hard to set that tone from the beginning.
I have been an active litigator in Federal courts. I have
tried cases as a Federal prosecutor and as Attorney General of
Alabama.
The Constitution and our great heritage of law I care
deeply about. They are the foundation of our liberty and our
prosperity, and this nomination hearing is critical for two
important reasons.
First, Justices on the Supreme Court have great
responsibility, hold enormous power, and have a lifetime
appointment. Just five members can declare the meaning of our
Constitution, bending or changing its meaning from what the
people intended.
Second, this hearing is important because I believe our
legal system is at a dangerous crossroads. Down one path is the
traditional American system, so admired around the world, where
judges impartially apply the law to the facts without regard to
personal views.
This is the compassionate system because it is the fair
system. In the American legal system, courts do not make the
law or set policy, because allowing unelected officials to make
law would strike at the heart of our democracy.
Here, judges take an oath to administer justice
impartially. That oath reads: ``I . . . do solemnly swear
that I will administer justice without respect to persons, and
do equal right to the rich and the poor, and that I will
faithfully and impartially discharge and perform all the duties
incumbent upon me . . . under the Constitution and laws of
the United States. So help me God.''
These principles give the traditional system its moral
authority, which is why Americans respect and accept the
rulings of courts--even when they disagree.
Indeed, our legal system is based on a firm belief in an
ordered universe and objective truth. The trial is the process
by which the impartial and wise judge guides us to truth.
Down the other path lies a Brave New World where words have
no true meaning and judges are free to decide what facts they
choose to see. In this world, a judge is free to push his or
her own political or social agenda. I reject that view, and
Americans reject that view.
We have seen Federal judges force their own political and
social agenda on the Nation, dictating that the words ``under
God'' be removed from the Pledge of Allegiance and barring
students from even private--even silent prayer in schools.
Judges have dismissed the people's right to their property,
saying the Government can take a person's home for the purpose
of developing a private shopping center.
Judges have--contrary to longstanding rules of war--created
a right for terrorists, captured on a foreign battlefield, to
sue the United States Government in our own country.
Judges have cited foreign laws, world opinion, and a United
Nations resolution to determine that a State death penalty law
was unconstitutional.
I am afraid our system will only be further corrupted, I
have to say, as a result of President Obama's views that, in
tough cases, the critical ingredient for a judge is the ``depth
and breadth of one's empathy,'' as well as, his word, ``their
broader vision of what America should be.''
Like the American people, I have watched this process for a
number of years, and I fear that this ``empathy standard'' is
another step down the road to a liberal activist, results-
oriented, and relativistic world where laws lose their fixed
meaning, unelected judges set policy, Americans are seen as
members of separate groups rather than as simply Americans, and
where the constitutional limits on Government power are ignored
when politicians want to buy out private companies. So we have
reached a fork in the road, I think, and there are stark
differences.
I want to be clear:
I will not vote for--and no senator should vote for--an
individual nominated by any President who is not fully
committed to fairness and impartiality toward every person who
appears before them.
I will not vote for--and no Senator should vote for--an
individual nominated by any President who believes it is
acceptable for a judge to allow their personal background,
gender, prejudices, or sympathies to sway their decision in
favor of, or against, parties before the court. In my view,
such a philosophy is disqualifying.
Such an approach to judging means that the umpire calling
the game is not neutral, but instead feels empowered to favor
one team over the other.
Call it empathy, call it prejudice, or call it sympathy,
but whatever it is, it is not law. In truth, it is more akin to
politics, and politics has no place in the courtroom.
Some will respond, ``Judge Sotomayor would never say it's
acceptable for a judge to display prejudice in a case.'' But I
regret to say, Judge, that some of your statements that I will
outline seem to say that clearly. Let's look at just a few
examples.
We have seen the video of the Duke University panel where
Judge Sotomayor says ``It is [the] Court of Appeals where
policy is made. And I know, and I know, that this is on tape,
and I should never say that, and should not think that.''
And during a speech 15 years ago, Judge Sotomayor said, ``I
willingly accept that we who judge must not deny the
differences resulting from experience and heritage but attempt
. . . continuously to judge when those opinions, sympathies,
and prejudices are appropriate.''
And in the same speech, she said, ``my experiences will
affect the facts I choose to see. . .''
Having tried a lot of cases, that particular phrase bothers
me. I expect every judge to see all the facts.
So I think it is noteworthy that, when asked about Judge
Sotomayor's now-famous statement that a ``wise Latina'' would
come to a better conclusion than others, President Obama, White
House Press Secretary Robert Gibbs, and Supreme Court Justice
Ginsburg declined to defend the substance of those remarks.
They each assumed that the nominee misspoke. But I do not think
it--but the nominee did not misspeak. She is on record as
making this statement at least five times over the course of a
decade.
I am providing a copy of the full text of those speeches
for the record.
[The speeches appear as a submission for the record.]
Senator Sessions. Others will say that, despite these
statements, we should look to the nominee's record, which they
characterize as ``moderate.'' People said the same of Justice
Ginsburg, who is now considered to be one of the most members
of the Supreme Court in history.
Some Senators ignored Justice Ginsburg's philosophy and
focused on the nominee's judicial opinions. But that is not a
good test because those cases were necessarily restrained by
precedent and the threat of reversal from higher courts.
On the Supreme Court, those checks on judicial power will
be removed, and the judge's philosophy will be allowed to reach
full bloom.
But even as a lower court judge, our nominee has made some
troubling rulings. I am concerned by Ricci, the New Haven
Firefighters case--recently reversed by the Supreme Court--
where she agreed with the City of New Haven's decision to
change the promotion rules in the middle of the game.
Incredibly, her opinion consisted of just one substantive
paragraph of analysis.
Judge Sotomayor has said that she accepts that her
opinions, sympathies, and prejudices will affect her rulings.
Could it be that her time as a leader in the Puerto Rican Legal
Defense and Education Fund, a fine organization, provides a
clue to her decision against the firefighters?
While the nominee was Chair of that fund's Litigation
Committee, the organization aggressively pursued racial quotas
in city hiring and, in numerous cases, fought to overturn the
results of promotion exams. It seems to me that in Ricci, Judge
Sotomayor's empathy for one group of firefighters turned out to
be prejudice against another.
That is, of course, the logical flaw in the ``empathy
standard.'' Empathy for one party is always prejudice against
another.
Judge Sotomayor, we will inquire into how your philosophy,
which allows subjectivity in the courtroom, affects your
decisionmaking like, for example, in abortion, where an
organization in which you were an active leader argued that the
Constitution requires taxpayer money to fund abortions; and gun
control, where you recently noted it is ``settled law'' that
the Second Amendment does not prevent a city or State from
barring gun ownership; private property, where you have ruled
recently that the Government could take property from one
pharmacy developer and give it to another; capital punishment,
where you personally signed a statement opposing the
reinstatement of the death penalty in New York because of the
``inhuman[e] psychological burden'' it places on the offender
and the family.
So I hope the American people will follow these hearings
closely. They should learn about the issues and listen to both
sides of the argument, and at the end of the hearing ask: ``If
I must one day go to court, what kind of judge do I wish to
hear my case? ''
``Do I want a judge that allows his or her social,
political, or religious views to change the outcome? Or do I
want a judge that impartially applies the law to the facts and
fairly rules on the merits, without bias or prejudice? ''
It is our job to determine on which side of that
fundamental divide the nominee stands.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Another housekeeping thing. We are going to try to keep
these opening statements to 10 minutes. I will recognize
Senators on the Democratic side based on seniority. I have told
Senator Sessions I will----
Senator Sessions. Likewise.
Chairman Leahy. That is what you want on your side. Then
they will be recognized on your side by the same way. So the
next Senator is Senator Kohl.
STATEMENT OF HON. HERB KOHL, A U.S. SENATOR FROM WISCONSIN
Senator Kohl. Thank you, Mr. Chairman.
Judge Sotomayor, let me also extend my welcome to you and
to your family. You are to be congratulated on your nomination.
Your nomination is a reflection of who we are as a country,
and it represents an American success story that we all can be
proud of. Your academic and professional accomplishments--as
prosecutor, private practitioner, trial judge and appellate
judge--are exemplary. And as a judge, you have brought a
richness of experience to the bench and to the judiciary which
has been an inspiration for so many.
Today, we begin a process through which the Senate engages
in its constitutional role to ``advise and consent'' on your
nomination. This week's hearing is the only opportunity we--and
the American people--will have to learn about your judicial
philosophy, your temperament, and your motivations before you
put on the black robe and are heard from only in your opinions.
The President has asked us to entrust you with an immense
amount of power--power which, by design, is free from political
constraints, unchecked by the people, and unaccountable to
Congress, except in the most extreme circumstances.
Our democracy, our rights, and everything we hold dear
about America are built on the foundation of our Constitution.
For more than 200 years, the Court has interpreted the meaning
of the Constitution and, in so doing, guaranteed our most
cherished rights: the right to equal education regardless of
race; the right to an attorney and a fair trial for the
accused; the right to personal privacy; the right to speak,
vote, and worship without interference from the Government.
Should you be confirmed, you and your colleagues will decide
the future scope of our rights and the breadth of our freedoms.
Your decisions will shape the fabric of American society for
many years to come.
And that is why it is so important that over the course of
the next few days, we gain a good understanding of what is in
your heart and in your mind. We don't have a right to know in
advance how you will rule on cases which will come before you.
But we need--and we deserve--to know what you think about
fundamental issues such as civil rights, privacy, property
rights, the separation of church and state, and civil
liberties, just to name a few.
Some believe that the confirmation process has become
thoroughly scripted and that nominees are far too careful in
cloaking their answers to important questions in generalities
and with caveats about future cases. I recognize this concern,
but I also hope that you recognize our need to have a frank
discussion about these important issues.
And these are not just concepts for law books. They are
issues Americans care about. As crime plagues our communities,
we navigate the balance between individual rights and the duty
of law enforcement to protect and maintain order. As families
struggle to make ends meet in these difficult times, we
question the permissible role for Government in helping get the
economy back on track. As we continue to strive for equal
rights in our schools and workplaces, we debate the tensions
between admissions policies and hiring practices that
acknowledge diversity, and those that attempt to be colorblind.
These issues invite all Americans to struggle with the
dilemmas of democracy and the great questions of our
Constitution. If we discuss them with candor, I believe we will
have a conversation that the American people will profit from.
When considering Supreme Court nominees over the years, I
have judged each one with a test of judicial excellence.
First, judicial excellence means the competence, character,
and temperament that we expect of a Supreme Court Justice. He
or she must have a keen understanding of the law and the
ability to explain it in ways that both the litigants and the
American people will understand and respect, even if they
disagree with the outcome.
Second, I look for a nominee to have the sense of values
which form the core of our political and economic system. No
one, including the President, has the right to require
ideological purity from a member of the Supreme Court. But we
do have a right to require that the nominee accept both the
basic principles of the Constitution and its core values
implanted in society.
Third, we want a nominee with a sense of compassion. This
is a quality that I have considered with the last six Supreme
Court Justices. Compassion does not mean bias or lack of
impartiality. It is meant to remind us that the law is more
than an intellectual game and more than a mental exercise.
As Justice Black said, ``The courts stand against any winds
that blow as havens of refuge for those who might otherwise
suffer because they are helpless, weak, outnumbered or because
they are non-conforming victims of prejudice and public
excitement.''
A Supreme Court Justice must also be able to recognize that
real people with real problems are affected by the decisions
rendered by the Court. He or she must have a connection with
and an understanding of the problems that people struggle with
on a daily basis. For justice, after all, may be blind, but it
should not be deaf.
As Justice Thomas told us at his confirmation hearing, it
is important that a Justice ``can walk in the shoes of the
people who are affected by what the Court does.'' I believe
this comment embodies what President Obama intended when he
said he wanted a nominee with ``an understanding of how the
world works and how ordinary people live.''
Some critics are concerned that your background will
inappropriately impact your decision making. But it is
impossible for any of us to remove ourselves from our life
story with all the twists and turns that make us who we are.
As you have acknowledged, ``My experiences in life
unquestionably shape my attitudes.'' And I hope that we on this
Committee can appreciate and relate to ourselves what you said
next: ``. . . but I am cognizant enough that mine is not the
only experience.'' You will have an opportunity before this
Committee to assure us that your life experiences will impact
but not overwhelm your duty to follow the law and Constitution.
After your confirmation to the Court of Appeals in 1998,
you said about the discussions at your confirmation hearing,
``So long as people of good will are participating in the
process and attempting to be balanced in their approach, then
the system will remain healthy.'' I hope our process will
include a healthy level of balanced and respectful debate, and
I look forward to the opportunity to learn more about you and
what sort of Justice you aspire to be.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator.
Senator Hatch. Also a former Chairman of this Committee.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM UTAH
Senator Hatch. Well, thank you, Mr. Chairman. Judge,
welcome to you and your good family. We are grateful to have
all of you here.
Now, this is the 12th hearing for a Supreme Court
nomination in which I have participated, and I am as struck
today as I was the first time by the seriousness of our
responsibility and its impact on America. I am confident that
under this Committee's leadership, from both you, Mr. Chairman,
and the distinguished Ranking Member, this hearing will be both
respectful and substantive.
Judge Sotomayor comes to this Committee for the third time,
having served in the first two levels of the Federal judiciary
and now being nominated to the third. She has a compelling life
story and a strong record of educational and professional
achievement. Her nomination speaks to the opportunities that
America today provides for men and women of different
backgrounds and heritage.
The liberty we enjoy here in America makes these
opportunities possible and requires our best efforts to protect
that liberty. Our liberty rests on the foundation of a written
Constitution that limits and separates government power, self-
government by the people, and the rule of law. Those principles
define the kind of judge our liberty requires. They define the
role judges may play in our system of government.
I have described my basic approach to the judicial
confirmation process in more detail elsewhere, so I ask
unanimous consent that my article published this year in the
Harvard Journal of Law and Public Policy, entitled ``The
Constitution Is the Playbook for Judicial Selection,'' be
placed in the record, Mr. Chairman, if I can.
Chairman Leahy. Without objection.
[The article appears as a submission for the record.]
Senator Hatch. My approach includes three elements:
First, the Senate owes some deference to the President's
qualified nominees;
Second, a judicial nominee's qualifications include not
only legal experience but, more importantly, judicial
philosophy. By that I mean a nominee's understanding of the
power and proper role of judges in our system of government;
Third, this standard must be applied to the nominee's
entire record. I have also found guidance from what may seem to
be as an unusual source. On June 8, 2005, then-Senator Barack
Obama explained his opposition to the appeals court nomination
of Janice Rogers Brown, an African American woman with a truly
compelling life story, who then served as a justice on the
California Supreme Court. Senator Obama made three arguments
that I find relevant today.
First, he argued that the test of a qualified judicial
nominee is whether she can set aside her personal views and, as
he put it, ``decide each case on the facts and the merits
alone. That is what our Founders intended. Judicial decisions
ultimately have to be based on evidence and on facts. They have
to be based on precedent and on law.''
Second, Senator Obama extensively reviewed Justice Brown's
speeches off the court for clues about what he called her
``overreaching judicial philosophy.'' There is even more reason
to do so today. This is, after all, a nomination to the Supreme
Court of the United States of America.
Judge Sotomayor, if confirmed, will help change the very
precedents that today bind her as a circuit court of appeals
judge. In other words, the judicial position to which she has
been nominated is quite different than the judicial position
she now occupies. This makes evidence outside of her appeals
court decisions regarding her approach to judging more, not
less, important. Judge Sotomayor has obviously thought, spoken,
and written much on these issues, and I think we show respect
to her by taking her entire record seriously.
Third, Senator Obama said that while a nominee's race,
gender, and life story are important, they cannot distract from
the fundamental focus on the kind of judge she will be. He said
then, as I have said today, that we should all be grateful for
the opportunity that our liberty affords for Americans of
different backgrounds. We should applaud Judge Sotomayor's
achievements and service to her community, her profession, and
her country. Yet Senator Obama called it ``offensive and
cynical'' to suggest that a nominee's race or gender can give
her a pass for her substantive views. He proved it by voting
twice to filibuster Janice Rogers Brown's nomination and then
by voting against her confirmation.
I share his hope that we have arrived at a point in our
country's history where individuals can be examined and even
criticized for their views, no matter what their race or
gender. If those standards were appropriate when Senator Obama
opposed Republican nominees, they should be appropriate now
that President Obama is choosing his own nominees.
But today President Obama says that personal empathy is an
essential ingredient in judicial decisions. Today we are urged
to ignore Judge Sotomayor's speeches altogether and focus only
on her judicial decisions, which are extensive. I do not
believe that we should do just that.
I wish that other current standards had been applied to
past nominees. Democratic Senators, for example, offer as proof
of Judge Sotomayor's moderation that she has agreed with her
Republican-appointed Second Circuit colleagues 95 percent of
the time. Joined by then--for which I congratulate her. Joined
by then-Senator Obama, however, many of those same Democratic
Senators voted against Justice Samuel Alito's confirmation,
even though he had voted with his Democrat-appointed Third
Circuit colleagues 99 percent of the time during a more longer
appeals court career. And although Justice Alito also received
the ABA's highest rating, Senator Obama joined 24 other
Democrats on even voting to filibuster his nomination. And then
he joined a total of 42 Democrats in voting against the
confirmation of now-Justice Alito.
In fact, Senator Obama never voted to confirm a Supreme
Court Justice. He even voted against the man who administered
the oath of Presidential office, Chief Justice John Roberts,
another distinguished and well-qualified nominee.
Now, if a compelling life story, academic and professional
excellence, and a top ABA rating make a convincing confirmation
case, Miguel Estrada would be a U.S. circuit judge today. He is
a brilliant, universally respected lawyer, one of the top
Supreme Court practitioners in America. But he was fiercely
opposed by groups and repeatedly filibustered by Democrat
Senators, and ones who today say these same factors should
count in Judge Sotomayor's favor.
Now, whether I vote for or against Judge Sotomayor, it will
be by applying the principles that I have laid out, not by
using such tactics and standards used against these nominees in
the past. Judicial appointments have become increasingly
contentious. Some of the things that have been said about Judge
Sotomayor have been intemperate and unfair. There are now
newspaper reports that left-wing groups supporting Judge
Sotomayor--specifically, the extreme-left People for the
American Way--are engaged in a smear campaign against the
plaintiff in one of her more controversial cases, a man who
will be testifying here later in the week. If that is true--and
I hope it is not--it is beneath both contempt and the dignity
that this process demands. But there must be a vigorous debate
about the kind of judge America needs because nothing less than
our liberty is at stake.
Must judges set aside or may judges consider their personal
feelings in deciding cases? Is judicial impartiality a duty or
an option? Does the fact that judicial decisions affect so many
people's lives require judges to be objective and impartial? Or
does it allow them to be subjective and sympathetic?
Judge Sotomayor's nomination raises these and other
important issues, and I look forward to a respectful and
energetic debate. The confirmation process in general, and this
hearing in particular, must be both dignified and thorough.
There are very different and strongly held views about the
issues we will explore, in particular the role that judges
should play in our system of government.
The task before us is to determine whether Judge Sonia
Sotomayor is qualified by legal experience, and especially by
judicial philosophy, to sit on the Supreme Court of the United
States of America. Doing so requires examining her entire
record, her speeches and articles, as well as her judicial
decisions. We must at the same time be thankful for the
opportunity represented by Judge Sotomayor's nomination and
focus squarely on whether she will be the kind of judge
required by the very liberty that makes that opportunity
possible.
Judge, I am proud of you and I wish you well. This will be
an interesting experience, and I expect you to be treated with
dignity and respect throughout.
Thank you, Mr. Chairman.
Chairman Leahy. I yield to the Chair of the Senate
Intelligence Committee, Senator Feinstein.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM
CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman. Good
morning, Judge Sotomayor. I want to congratulate you on your
nomination, and I also want to start out with a couple of
personal words.
Your nomination I view with a great sense of personal
pride. You are indeed a very special woman. You have overcome
adversity and disadvantage. You have grown in strength and
determination, and you have achieved respect and admiration for
what has been a brilliant legal and judicial career.
If confirmed, you will join the Supreme Court with more
Federal judicial experience than any Justice in the past 100
years. And you bring with you 29\1/2\ years of varied legal
experience to the Court. By this standard you are well
qualified.
In your 11 years as a Federal appellate court judge, you
have participated in 3,000 appeals and authored roughly 400
published opinions. In your 6 years on the Federal court, you
were the trial judge in approximately 450 cases. For 4\1/2\
years, you prosecuted crimes as an assistant DA in New York
City. And you spent 8 years litigating business cases at a New
York law firm.
What is unique about this broad experience is that you have
seen the law truly from all sides.
On the district court you saw firsthand the actual impact
of the law on people before you in both civil and criminal
cases.
You considered, wrote, and joined thousands of opinions
clarifying the law and reviewing district court decisions in
your time on the appellate court. Your 11 years there were a
rigorous training ground for the Supreme Court.
It is very unique for a judge to have both levels of
Federal court experience, and you will be the only one on the
current Supreme Court with this background.
You were a prosecutor who tried murder, robbery, and child
pornography cases. So you know firsthand the impact of crime on
a major metropolis, and you have administered justice in the
close and personal forum of a trial court.
You also possess a wealth of knowledge in the complicated
arena of business law with its contract disputes, patent and
copyright issues, and antitrust questions.
And as an associate and partner at a private law firm, you
have tried complex civil cases in the areas of real estate,
banking, and contracts law, as well as intellectual property
law, which I am told was a specialty of yours. So you bring a
deep and broad experience in the law to the Supreme Court.
In my nearly 17 years on this Committee, I have held
certain qualities that a Supreme Court nominee must possess:
First, broad and relative experience. You satisfy that.
Second, a strong and deep knowledge of the law and the
Constitution. You satisfy that.
Third, a firm commitment to follow the law. And you have in
all of the statistics indicated that.
Next, a judicial temperament and integrity. And you have
both of those.
And, finally, mainstream legal reasoning. And there is
everything in your record to indicate----
[Protestor outburst.]
Chairman Leahy. The Senate will----
[Protestor outburst.]
Chairman Leahy. The police will remove that man.
Let me make very clear: There will be no outbursts allowed
in this Committee, either for or against the nominee, either
for or against any position that Senator Sessions or I or any
other Senator have. This is a hearing of the United States
Senate, and we will have order and we will have decorum. There
are people who want to have this hearing. In fairness to Judge
Sotomayor, it will be done orderly, and I will direct the
police to remove anybody who does any kind of an outburst,
either for or against the nominee, either for or against any
member of this Committee.
Senator Sessions. Thank you, Mr. Chairman, for your firm
words. I support you 100 percent.
Chairman Leahy. Thank you. And the record will show my
comments outside of Senator Feinstein's comments, and I yield
back to her.
Senator Feinstein. Thank you, Mr. Chairman.
Bottom line, I believe your record indicates that you
possess all of these qualities.
Over the past years of my service on this Committee, I have
found it increasingly difficult to know from answers to
questions we ask from this dais how a nominee will actually act
as a Supreme Court Justice, because answers here are often
indirect and increasingly couched in euphemistic phrases.
For example, nominees have often responded to our specific
questions with phrases like ``I have an open mind,'' or yes,
that is precedent ``entitled to respect,'' or ``I have no
quarrel with that.''
Of course, these phrases obfuscate and prevent a clear
understanding of where a nominee really stands.
For example, several past nominees have been asked about
the Casey decision, where the Court held that the Government
cannot restrict access to abortions that are medically
necessary to preserve a woman's health.
Some nominees responded by assuring that Roe and Casey were
precedents of the Court entitled to great respect. And in one
of the hearings, through questioning by Senator Specter, this
line of cases was acknowledged to have created a ``super-
precedent.''
But once on the Court, the same nominees voted to overturn
the key holding in Casey--that laws restricting a woman's
medical care must contain an exception to protect her health.
Their decision did not comport with the answers they gave
here, and it disregarded stare decisis and the precedents
established in Roe, in Ashcroft, in Casey, in Thornburgh, in
Carhart I, and in Ayotte.
So ``super-precedent'' went out the window, and women lost
a fundamental constitutional protection that had existed for 36
years.
Also, it showed me that Supreme Court Justices are much
more than umpires calling balls and strikes and that the word
``activist'' is often used only to describe opinions of one
side.
As a matter of fact, in just 2 years, these same nominees
have either disregarded or overturned precedent in at least
eight other cases: A case involving assignments to attain
racial diversity in school assignments; a case overruling 70
years of precedent on the Second Amendment and Federal gun
control law; a case which increased the burden of proof on
older workers to prove age discrimination; a case overturning a
1911 decision to allow manufacturers to set minimum prices for
their products; a case overruling two cases from the 1960s on
time limits for filing criminal appeals; a case reversing
precedent on the Sixth Amendment right to counsel; a case
overturning a prior ruling on regulation of issue ads relating
to political campaigns; and a case disregarding prior law and
creating a new standard that limits when cities can replace
civil service exams that they may believe have discriminated
against a group of workers.
So I do not believe that Supreme Court Justices are merely
umpires calling balls and strikes. Rather, I believe that they
make the decisions of individuals who bring to the Court their
own experiences and philosophies.
Judge Sotomayor, I believe you are a warm and intelligent
woman. I believe you are well studied and experienced in the
law with some 17 years of Federal court experience involving
3,000 appeals and 450 trial cases.
So I believe you, too, will bring your experiences and
philosophies to this highest Court, and I believe that will do
only one thing--and, that is, to strengthen this high
institution of our great country.
Thank you Mr. Chairman.
Chairman Leahy. Thank you, Senator Feinstein.
Senator Grassley.
STATEMENT OF HON. CHARLES GRASSLEY, A U.S. SENATOR FROM IOWA
Senator Grassley. Judge Sotomayor, I notice how attentive
you have been to everything we are saying. Thank you very much.
Congratulations on your nomination to be Associate Justice and
welcome to the Judiciary Committee, and a warm welcome to you
and your family and friends. They are all very proud of you,
and rightly so.
You have a distinguished legal and judicial record. No
doubt it is one that we would expect of any individual
nominated to the Supreme Court. You made your start from very
humble beginnings. You overcame substantial obstacles and went
on to excel at some of the Nation's top schools. You became an
assistant district attorney and successful private practice
attorney in New York City. You have been on the Federal bench
as a district court and appellate court judge since 1992. These
are all very impressive legal accomplishments which certainly
qualify you to be on the Supreme Court.
However, an impressive legal record and superior intellect
are not the only criteria that we on this Committee have to
consider. To be truly qualified, the nominee must understand
the proper role of a judge in society--that is, we want to be
absolutely certain that the nominee will faithfully interpret
the law and the Constitution without bias or prejudice. This is
the most critical qualification of a Supreme Court Justice--the
capacity to set aside one's own feelings so that he or she can
blindly and dispassionately administer equal justice for all.
So the Senate has a constitutional responsibility of advise
and consent, to confirm intelligent, experienced individuals
anchored in the Constitution, not individuals who will pursue
personal and political agendas from the bench.
Judge Sotomayor, you are nominated to the highest Court of
the land which has the final say on the law. As such, it is
even more important for the Senate to ascertain whether you can
resist the temptations to mold the Constitution to your own
personal beliefs and preferences. It is even more important for
the Senate to ascertain whether you can dispense justice
without bias or prejudice.
Supreme Court Justices sit on the highest Court in the land
so that they are not as constrained, as you know, to follow
precedent to the same extent as district and circuit judges.
There is a proper role of a judge in our system of limited
government and checks and balances. Our democratic system of
government demands that judges not take on the role of
policymakers. That is a role properly reserved to legislators,
who can be voted out of office if people do not like what they
legislate, unlike judges not being voted out of office.
The Supreme Court is meant to be a legal institution, not a
political one. But some individuals and groups do not see it
that way. They see the Supreme Court as ground zero for their
political and social battles. They want Justices to implement
their political and social agenda through the judicial process.
That is not what our great American tradition envisioned. Those
battles are appropriately fought in our branch of Government,
the legislative branch.
So it is incredibly important that we get it right and
confirm the right kind of person for the Supreme Court. Supreme
Court nominees should respect the constitutional separation of
power. They should understand that the touchstone of being a
good judge is the exercise of judicial restraint. Good judges
understand that their job is not to impose their own personal
opinions of right and wrong. They know their job is to say what
the law is rather than what they personally think that it ought
to be.
Good judges understand that they must meticulously apply
the law and the Constitution even if the results they reach are
unpopular. Good judges know that the constitutional law
constrains judges every bit as much as it constrains
legislators, executives, and our whole citizenry. Good judges
not only understand these fundamental principles; they live and
breathe them.
President Obama said that he would nominate judges based on
their ability to empathize in general and with certain groups
in particular. This empathy standard is troubling to me. In
fact, I am concerned that judging based on empathy is really
just legislating from the bench.
The Constitution requires that judges be free from personal
politics, feelings, and preferences. President Obama's empathy
standard appears to encourage judges to make use of their
personal politics, feelings, and preferences. This is contrary
to what most of us understand to be the role of the judiciary.
President Obama clearly believes that you measure up to his
empathy standard. That worries me. I have reviewed your record
and have concerns about your judicial philosophy. For example,
in one speech you doubted that a judge could ever be truly
impartial. In another speech, you argued that it is a
disservice both to law and society for judges to disregard
personal views shaped by one's ``differences as a woman or man
of color.''
In yet another speech, you proclaimed that the court of
appeals is where policy is made. Your ``wise Latina'' comment
starkly contradicts a statement by Justice O'Connor that a wise
old man and a wise old woman would eventually reach the same
conclusion in a case.
These statements go directly to your views of how a judge
should use his or her background and experience when deciding
cases. Unfortunately, I fear they do not comport with what I
and many others believe is the proper role of a judge or an
appropriate judicial method.
The American legal system requires that judges check their
biases, personal preferences, and politics at the door of the
courthouse. Lady Justice stands before the Supreme Court with a
blindfold, holding the scales of justice. Just like Lady
Justice, judges and Justices must wear blindfolds when they
interpret the Constitution and administer justice.
I will be asking you about your ability to wear that
judicial blindfold. I will be asking you about your ability to
decide cases in an impartial manner and in accordance with the
law and the Constitution. I will be asking you about your
judicial philosophy, whether you allow biases and personal
preferences to dictate your judicial methods.
Finally--or ideally, the Supreme Court shouldn't be made up
of men and women who are on the side of one special group or
issue; rather, the Supreme Court should be made up of men and
women who are on the side of the law and the Constitution.
I am looking to support a restrained jurist committed to
the rule of law and the Constitution. I am not looking to
support a creative jurist who will allow his or her background
and personal preferences to decide cases.
The Senate needs to do its job and conduct a comprehensive
and careful review of your record and qualifications. You are
nominated to a lifetime position on the highest Court. The
Senate has a tremendous responsibility to confirm an individual
who has superior intellectual abilities, solid legal expertise,
and an even judicial demeanor and temperament. Above all, we
have a tremendous responsibility to confirm an individual who
truly understands the proper role of a Justice.
So I will be asking questions about your judicial
qualifications. However, like all of my colleagues, I am
committed to giving you a fair and respectful hearing as is
appropriate for Supreme Court nominees.
I congratulate you once again.
Chairman Leahy. Thank you, Senator Grassley.
Senator Feingold, I would yield to you.
STATEMENT OF HON. RUSSELL FEINGOLD, A U.S. SENATOR FROM
WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I too want to
welcome and congratulate the nominee, Judge Sotomayor. I
greatly admire your accomplishments and your long record of
public service. Let me also thank you in advance for the long
week you're about to spend in this room.
The Supreme Court plays a unique and central role in the
life of our nation. Those who sit as Justices have
extraordinary power over some of the most important, and most
intimate, aspects of the lives of American citizens.
It is therefore not surprising at all that the nomination
and confirmation of a Supreme Court Justice is such a widely
anticipated and widely covered event. The nine men and women
who sit on the court have enormous responsibilities, and those
of us tasked with voting on the confirmation of a nominee have
a significant responsibility as well.
This is clearly one of the most consequential things that
one does as a United States Senator and I'm honored and humbled
to be given this role by the people of Wisconsin.
The ultimate responsibility of the Supreme Court is to
safeguard the rule of law, which defines us as a nation and
protects us all.
In the past eight years, the Supreme Court has played a
crucial role in checking some of the previous administration's
most egregious departures from the rule of law. Time after time
in cases arising out of actions taken by the Administration
after September 11, the court has said: ``No. You have gone too
far.''
It said ``no'' to the Bush Administration's view that it
could set up a law-free zone at Guantanamo Bay. It said ``no''
to the Administration's view that it could hold a citizen in
the United States incommunicado indefinitely with no access to
a lawyer.
It said ``no'' to the Administration's decision to create
military commissions without congressional authorization, and
it said no to the Administration and to Congress when they
tried to strip the constitutional right to habeus corpus from
prisoners held at Guantanamo.
These were courageous decisions, and in my opinion, they
were correct decisions. They made plain, as Justice O'Connor
wrote in the Hamdi decision in 2004: ``A state of war is not a
blank check for the President when it comes to the rights of
the nation's citizens.'' These were all close decisions, some
decided by a 5 to 4 vote.
That fact underscores the unparalleled power that each
Supreme Court justice has. In my opinion, one of the most
important qualities that a Supreme Court justice must have is
courage. The courage to stand up to the President and Congress
in order to protect the constitutional rights of the American
people and preserve the rule of law.
I have touched on the crucial recent decisions of the court
in the area of executive power, but we know, of course, that
there are countless past Supreme Court decisions that have had
a major impact on aspects of our national life.
The court rejected racial discrimination in education; it
guaranteed the principle of ``one person, one vote''; it made
sure that even the poorest person accused of a crime in this
country can be represented by counsel; it made sure that
newspapers can't be sued for libel by public figures for merely
making a mistake.
It protected the privacy of telephone conversations from
unjustified government eavesdropping; it protected an
individual's right to possess afirearm for private use; and it
even decided a presidential election.
It made these decisions by interpreting and applying open-
ended language in our Constitution. Phrases like ``equal
protection of the laws,'' ``due process of law,'' ``freedom of
the press,'' ``unreasonable searches and seizures,'' and ``the
right to bear arms.''
Senator Feinstein just suggested these momentous decisions
were not simply the result of an umpire calling balls and
strikes. Easy cases where the law is clear almost never make it
to the Supreme Court. The great constitutional issues that the
Supreme Court is called upon to decide require much more than
the mechanical application of universally accepted legal
principles. That is why Justices need great legal expertise,
but they also need wisdom, they need judgment, they need to
understand the impact of their decisions on the parties before
them and the country around them, from New York City to small
towns like Spooner, Wisconsin. And they need a deep
appreciation of and dedication to equality, to liberty and to
democracy.
That is why I suggest to everyone watching today that they
be a little wary of a phrase that they are hearing at this
hearing: ``judicial activism.'' That term really seems to have
lost all usefulness, particularly since so many rulings of the
conservative majority on the Supreme Court can fairly be
described as ``activist'' in their disregard for precedent and
their willingness to ignore or override the intent of Congress.
At this point, perhaps we should all accept that the best
definition of a ``judicial activist'' is a judge who decides a
case in a way you don't like. Each of the decisions I mentioned
earlier was undoubtedly criticized by someone at the time it
was issued, and maybe even today, as being ``judicial
activism.'' Yet some of them are, as the judge well knows,
among the most revered Supreme Court decisions in modern times.
Mr. Chairman, every Senator is entitled to ask whatever
questions he or she wants at these hearings and to look at
whatever factors he or she finds significant in evaluating this
nominee.
I hope Judge Sotomayor will answer all questions as fully
as possible. I'll have questions of my own on a range of
issues. Certainly, with the two most recent Supreme Court
nominations, Senators did ask tough questions and sought as
much information from the nominees as we possibly could get.
And I expect nothing less from my colleagues in these hearings.
I am glad, however, that Judge Sotomayor will finally have an
opportunity to answer some of the unsubstantiated charges that
have been made against her.
One attack that I find particularly shocking is the
suggestion that she will be biased against some litigants
because of her racial and ethnic heritage. This charge is not
based on anything in her judicial record because there is
absolutely nothing in the hundreds of opinions she has written
to support it. That long record, which is obviously the most
relevant evidence we have to evaluate her, demonstrates a
cautious and careful approach to judging. Instead, a few lines
from a 2001 speech, taken out of context, have prompted some to
charge that she is a racist. I believe that no one who reads
the whole Berkeley speech could honestly come to that
conclusion. The speech is actually a remarkably thoughtful
attempt to grapple with difficult issues not often discussed by
judges: How does a judge's personal background and experiences
affect her judging? And Judge Sotomayor concludes her speech by
saying the following: ``I am reminded each day that I render
decisions that affect people concretely and that I owe them
constant and complete vigilance in checking my assumptions,
presumptions and perspectives and ensuring that to the extent
that my limited abilities and capabilities permit me, that I
reevaluate them and change as circumstances and cases before me
require.''
Mr. Chairman, these are the words of a thoughtful, humble,
and self-aware judge striving to do her very best to administer
impartial justice for all Americans, from New York City to
Spooner, Wisconsin. It seems to me that is a quality we want in
our judges.
Judge Sotomayor is living proof that this country is moving
in the right direction on the issue of race, that doors of
opportunity are finally starting to open to all of our
citizens. And I think that nomination will inspire countless
children to study harder and dream higher, and that is
something we should all celebrate.
Let me again welcome and congratulate you. I look forward
to further learning in these hearings whether you have the
knowledge, the wisdom, the judgment, the integrity, and yes,
the courage, to serve with distinction on our nation's highest
court. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much. I will recognize
Senator Kyl, the Deputy Republican Leader of the United States
Senate.
Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM ARIZONA
Senator Kyl. Thank you, Mr. Chairman. I would hope that
every American is proud that a Hispanic woman has been
nominated to sit on the Supreme Court. In fulfilling our advise
and consent role, of course, we must evaluate Judge Sotomayor's
fitness to serve on the merits, not on the basis of her
ethnicity.
With a background that creates a prima facie case for
confirmation, the primary question I believe Judge Sotomayor
must address in this hearing is her understanding of the role
of an appellate judge. From what she has said, she appears to
believe that her role is not constrained to objectively decide
who wins based on the weight of the law, but rather who in her
personal opinion, should win. The factors that will influence
her decisions apparently include her gender and Latina heritage
and foreign legal concepts that as she said, get her creative
juices going.
What is the traditional basis for judging in America? For
220 years, presidents and the Senate have focused on appointing
and confirming judges and justices who are committed to putting
aside their biases and prejudices and applying law to fairly
and impartially resolve disputes between parties.
This principle is universally recognized and shared by
judges across the ideological spectrum. For instance, Judge
Richard Paez of the Ninth Circuit with whom I disagree on a
number of issues explained this in the same venue where, less
than 24 hours earlier, Judge Sotomayor made her now-famous
remarks about a wise Latina woman making better decisions than
other judges.
Judge Paez described the instructions that he gave to
jurors who were about to hear a case. ``As jurors,'' he said,
``recognize that you might have some bias, or prejudice.
Recognize that it exists, and determine whether you can control
it so that you can judge the case fairly. Because if you
cannot--if you cannot set aside those prejudices, biases and
passions, then you should not sit on the case.''
And then Judge Paez said, ``The same principle applies to
judges. We take an oath of office. At the federal level, it is
a very interesting oath. It says, in part, that you promise or
swear to do justice to both the poor and the rich. The first
time I heard this oath, I was startled by its significance,''
he said. ``I have my oath hanging on the wall in the office to
remind me of my obligations. And so, although I am a Latino
judge and there is no question about that, I am viewed as a
Latino judge. As I judge cases, I try to judge them fairly. I
try to remain faithful to my oath.''
What Judge Paez said has been the standard for 220 years.
It correctly describes the fundamental and proper role for a
judge.
Unfortunately, a very important person has decided it is
time for change, time for a new kind of judge, one who will
apply a different standard of judging, including employment of
his or her empathy for one of the parties to the dispute.
That person is President Obama, and the question before us
is whether his first nominee to the Supreme Court follows his
new model of judging or the traditional model articulated by
Judge Paez.
President Obama, in opposing the nomination of Chief
Justice Roberts said that ``while adherence to legal precedent
and rules of statutory or constitutional construction will
dispose of 95 percent of the cases that come before a court,
what matters on the Supreme Court is those 5 percent of cases
that are truly difficult. In those 5 percent of hard cases, the
constitutional text will not be directly on point. The language
of the statute will not be perfectly clear. Legal process alone
will not lead you to a rule of decision.''
How does President Obama propose judges deal with these
hard cases? Does he want them to use judicial precedent, canons
of construction, and other accepted tools of interpretation
that judges have used for centuries? No, President Obama says
that ``in those difficult cases, the critical ingredient is
supplied by what is in the judge's heart.''
Of course, every person should have empathy, and in certain
situations, such as sentencing, it may not be wrong for judges
to be empathetic. The problem arises when empathy and other
biases or prejudices that are in the judge's heart become the
critical ingredient to deciding cases. As Judge Paez explained,
a judge's prejudices, biases, and passions should not be
embraced, they must be set aside so that a judge can render an
impartial decision as required by the judicial oath and as
parties before the court expect.
I respectfully submit that President Obama is simply
outside the mainstream in his statements about how judges
should decide cases. I practiced law for almost 20 years before
every level of state and federal court, including the U.S.
Supreme Court, and never once did I hear a lawyer argue that he
had no legal basis to sustain his client's position, so that he
had to ask the judge to go with his gut or his heart.
If judges routinely started ruling on the basis of their
personal feelings, however well-intentioned, the entire
legitimacy of the judicial system would be jeopardized.
The question for this committee is whether Judge Sotomayor
agrees with President Obama's theory of judging or whether she
will faithfully interpret the laws and Constitution and take
seriously the oath of her prospective office.
Many of Judge Sotomayor's public statements suggest that
she may, indeed, allow, and even embrace, decision-making based
on her biases and prejudices.
The wise Latina woman quote, which I referred to earlier,
suggests that Judge Sotomayor endorses the view that a judge
should allow gender, ethnic and experience-based biases to
guide her when rendering judicial opinions. This is in stark
contrast to Judge Paez's view that these factors should be set
aside.
In the same lecture, Judge Sotomayor posits that ``there is
no objective stance but only a series of perspectives. No
neutrality, no escape from choice in judging'' and claims that
``the aspiration to impartiality is just that. It's an
aspiration,'' she says, ``because it denies the fact that we
are by our experiences making different choices than others.''
No neutrality, no impartiality in judging? Yet isn't that
what the judicial oath explicitly requires?
Judge Sotomayor. clearly rejected the notion that judges
should strive for an impartial brand of justice. She has
already accepted that her gender and Latina heritage will
affect the outcome of her cases.
This is a serious issue, and it's not the only indication
that Judge Sotomayor has an expansive view of what a judge may
appropriately consider.
In a speech to the Puerto Rican ACLU, Judge Sotomayor
endorsed the idea that American judges should use good ideas
found in foreign law so that America does not lose influence in
the world.
The laws and practices of foreign nations are simply
irrelevant to interpreting the will of the American people as
expressed through our Constitution.
Additionally, the vast expanse of foreign judicial opinions
and practices from which one might draw simply gives activist
judges cover for promoting their personal preferences instead
of the law.
You can, therefore, understand my concern when I hear Judge
Sotomayor say that unless judges take it upon themselves to
borrow ideas from foreign jurisdictions, America is ``going to
lose influence in the world.'' That's not a judge's concern.
Some people will suggest that we should not read too much
into Judge Sotomayor's speeches and articles, that the focus
should instead be on her judicial decisions. I agree that her
judicial record is an important component of our evaluation,
and I look forward to hearing why, for instance, the Supreme
Court has reversed or vacated 80 percent of her opinions that
have reached that body, by a total vote count of 52 to 19.
But we cannot simply brush aside her extrajudicial
statements. Until now, Judge Sotomayor has been operating under
the restraining influence of a higher authority, the Supreme
Court. If confirmed, there will be no such restraint that would
prevent her from, to paraphrase President Obama, deciding cases
based on her heart-felt views.
Before we can faithfully discharge our duty to advise and
consent, we must be confident that Judge Sotomayor is
absolutely committed to setting aside her biases and
impartially deciding cases based on the rule of law.
Chairman Leahy. Somewhat differently than normal, Senator
Schumer will be recognized for five minutes and will reserve
his other five minutes for later on when he will be introducing
Judge Sotomayor.
So Senator Schumer, you are recognized for five minutes.
STATEMENT OF HON. CHARLES SCHUMER, A U.S. SENATOR FROM NEW YORK
Senator Schumer. Thank you, Mr. Chairman and Ranking Member
Sessions.
I want to welcome Judge Sotomayor. We in New York are so
proud of you and to your whole family, who I know are
exceptionally proud to be here today to support this historic
nomination.
Now, our presence here today is about a nominee who is
supremely well-qualified with experience on the District Court
and the Appellate Court benches that is unmatched in recent
history. It is about a nominee who, in 17 years of judging, has
authored opinion after opinion that is smart, thoughtful, and
judicially modest.
In short, Judge Sotomayor has stellar credentials. There's
no question about that. Judge Sotomayor has twice before been
nominated to the bench and gone through confirmation hearings
with bipartisan support. The first time, she was nominated by a
Republican President.
But most important, Judge Sotomayor's record bespeaks
judicial modesty, something that our friends on the right have
been clamoring for in a way that no recent nominee's has. It is
the judicial record, more than speeches and statements, more
than personal background, that most accurately measures how
modest a judicial nominee will be.
There are several ways of measuring modesty in the judicial
record. Judge Sotomayor more than measures up to each of them.
First, as we will hear in the next few days, Judge
Sotomayor puts rule of law above everything else. Given her
extensive and even-handed record, I am not sure how any member
of this panel can sit here today and seriously suggest that she
comes to the bench with a personal agenda. Unlike Justice
Alito, she does not come to the bench with a record number of
dissents.
Instead, her record shows that she is in the mainstream.
She has agreed with Republican colleagues 95 percent of the
time, she has ruled for the government in 83 percent of
immigration cases against the immigration plaintiff, she has
ruled for the government in 92 percent of criminal cases, she
has denied race claims in 83 percent of cases and has split
evenly on employment cases between employer and employee.
Second, and this is an important point because of her
unique experience in the District Court. Judge Sotomayor delves
thoroughly into the facts of each case. She trusts that an
understanding of the facts will lead, ultimately, to justice.
I would ask my colleagues to do this: examine a sampling, a
random sampling of her cases in a variety of areas. In case
after case, she rolls up her sleeves, learns the facts, applies
the law to the facts, and comes to a decision irrespective of
her inclinations or her personal experience.
In a case involving a New York police officer who made
white supremacist remarks, she upheld his right to make them.
In a case brought by plaintiffs who claimed they had been
bumped from a plane because of race, she dismissed their case
because the law required it, and she upheld the First Amendment
right of a prisoner to wear religious beads under his uniform.
In hot-button cases such as professional sports, she
carefully adheres to the facts before her and upheld the NFL's
ability to maintain certain player restrictions, but also ruled
in favor of baseball players to end the Major League Baseball
strike. Third, Judge Sotomayor has hewed carefully to the text
of statutes, even when doing so results in rulings that go
against so-called sympathetic litigants.
In dissenting from an award of damages to injured
plaintiffs in a maritime accident, she wrote, ``we start with
the assumption that it is for Congress, not the federal courts,
to articulate the appropriate standards to be applied as a
matter of federal law.''
Mr. Chairman, just short of four years ago, then-Judge
Roberts sat where Judge Sotomayor is sitting. He told us that
his jurisprudence would be characterized by modesty and
humility. He illustrated this with a now well-known quote,
``Judges are like umpires. Umpires don't make the rules. They
apply them.''
Chief Justice Roberts was, and is, a supremely intelligent
man with impeccable credentials. But many can debate whether
during his four years on the Supreme Court he actually called
pitches as they come--or whether he tried to change the rules.
But any objective review of Judge Sotomayor's record on the
Second Circuit leaves no doubt that she has simply called balls
and strikes for 17 years, far more closely than Chief Justice
Roberts has during his four years on the Supreme Court.
More important, if Judge Sotomayor continues to approach
cases on the Supreme Court as she has for the last 17 years,
she will be actually modest judicially. This is because she
does not adhere to a philosophy that dictates results over the
facts that are presented.
So, in conclusion, if the number one standard that
conservatives use and apply is judicial modesty and humility,
no activism on the Supreme Court, they should vote for Judge
Sotomayor unanimously.
I look forward to the next few days of hearings, and to
Judge Sotomayor's confirmation.
Chairman Leahy. Thank you very much. I am going to
recognize Senator Graham and Senator Cardin and then we're
going to take a short break.
Senator Graham.
STATEMENT OF HON. LINDSEY GRAHAM, A U.S. SENATOR FROM SOUTH
CAROLINA
Senator Graham. Well, thank you. I have learned something
already. The Schumer conservative standard. We will see how
that works.
No Republican would have chosen you, Judge. That is just
the way it is. We would have picked Miguel Estrada. We would
all have voted for him. I do not think anybody on that side
would have voted for Judge Estrada, who is a Honduran immigrant
who came to this country as a teenager, graduated from Columbia
magna cum laude, Harvard 1986 magna cum laude and law review
editor, a stellar background like yours. That is just the way
it was.
He never had a chance to have this hearing. He was
nominated by President Bush to the D.C. Circuit Court of
Appeals which I think most people agree is probably the second
highest court in the land, and he never had this day. So the
Hispanic element of this hearing is important, but I don't want
it to be lost that this is mostly about liberal and
conservative politics more than it is anything else.
Having said that, there are some of my colleagues on the
other side that voted for Judge Roberts and Alito, knowing they
would not have chosen either one of those. I will remember
that.
Now, unless you have a complete meltdown, you are going to
get confirmed. I do not think you will, but the drama being
created here is interesting. My Republican colleagues who voted
against you I assure you could vote for a Hispanic nominee.
They just feel unnerved by your speeches and by some of the
things that you have said and some of your cases.
Now, having said that, I do not know what I am going to do
yet, but I do believe that you as an advocate with a Puerto
Rican defense legal fund that you took on some cases that I
would have loved to have been on the other side, that your
organization advocated taxpayer funded abortion and said in a
brief that to deny a poor black woman Medicaid funding for an
abortion was equivalent to the Dred Scott case. That is a
pretty extreme thing to say, but I think it was heartfelt.
I would look at it the other way to take my taxpayer
dollars and provide an abortion that I disagree with is pretty
extreme. So there is two ways of looking at that.
You were a prosecutor but your organization argued for the
repeal of the death penalty because it was unfairly applied and
discriminatory against minorities. Your organization argued for
quotas when it came to hiring.
I just want my colleagues to understand that there can be
no more liberal group in my opinion than the Puerto Rican
Defense Legal Fund when it came to advocacy. What I hope is
that if we ever get a conservative President and he nominates
someone who has an equal passion on the other side that we will
not forget this moment, that you could be the NRA General
Counsel and still be a good lawyer.
My point is I'm not going to hold it against you or the
organization for advocating a cause from which I disagree. That
makes America a special place. I would have loved to have been
on those cases on the other side. I hope that would not have
disqualified me.
Now, when it comes to your speeches, that is the most
troubling thing to me because that gives us an indication when
you are able to get outside the courtroom without the robe and
inside into how you think life works. This wise Latina comment
has been talked about a lot, but I can just tell you one thing.
If I had said anything remotely like that, my career would have
been over. That's true of most people here. You need to
understand that and I look forward to talking with you about
that comment.
Does that mean that I think that you are racist? You have
been called some pretty bad things. No. It just bothers me when
somebody wearing a robe takes the robe off and says that their
experience makes them better than someone else. I think your
experience can add a lot to the core, but I don't think it
makes you better than anyone else.
Now, when I look at your record, there is a lot of truth to
what Senator Schumer said. I do not think you have taken the
opportunity on the circuit to be a cause-driven judge. But what
we are talking about here today is what will you do when it
comes to making policy. I'm pretty well convinced I know what
you are going to do. You are probably going to decide cases
differently than I would.
So that brings me back to what am I supposed to do knowing
that? I do not think anybody here worked harder for Senator
McCain than I did, but we lost and President Obama won, and
that ought to matter. It does to me.
Now, what standard do I apply? I can assure you that if I
applied Senator Obama's standard to your nomination, I wouldn't
vote for you. Because the standard that he articulated would
make it impossible for anybody with my view of the law and
society to vote for someone with your activism and background
when it comes to judging.
He said something about the 5 percent of the cases that we
are all driven by. He said something to the effect, in those
difficult cases, the critical ingredient is applied by what is
in the judge's heart. Well, I have no way of knowing what is in
your heart anymore than you have knowing what is in my heart.
So that to me is an absurd, dangerous standard.
Maybe something good could come out of these hearings. If
we start applying that to nominees, it will ruin the judiciary.
I have no idea what is in your heart anymore than you have an
idea of what is in my heart. I think it takes us down a very
dangerous road as a country when we start doing that.
Now, there was a time when someone like Scalia and Ginsburg
got 95 plus votes. If you were confused about where Scalia was
coming down, as a judge you should not be voting anymore than
if you were a mystery about what Justice Ginsburg was going to
do in these 5 percent of the cases. That is no mystery.
There is some aspect of you that I'm not sure about that
gives me hope that you may not go down the Senator Feingold
road when it comes to the war on terror. We will talk about
that later on.
But generally speaking, the President has nominated someone
of good character, someone who has lived a very full and
fruitful life who is passionate from day one from the time you
got a chance to showcase who you are, you have stood out and
you have stood up and you have been a strong advocate and you
will speak your mind.
The one thing I am worried about is that if we keep doing
what we are doing, we are going to deter people from speaking
their mind. I do not want milk toast judges. I want you to be
able to speak your mind, but you have got to understand when
you gave these speeches as a sitting judge, that was disturbing
to me.
I want lawyers who believe in something and are willing to
fight for it. I do not want the young lawyers of this country
feeling like there is certain clients they cannot represent
because when they come before the Senate, it will be the end of
their career.
So I do not know how I am going to vote, but my inclination
is that elections matter. I am not going to be upset with any
of my colleagues who find that you are a bridge too far,
because in many ways what you have done in your legal career
and the speeches you have made give me great insight as to
where you will come out on these 5 percent of cases.
But President Obama won the election and I will respect
that. But when he was here, he set in motion a standard I
thought that was more about seeking the Presidency than being
fair to the nominee.
When he said the critical ingredient is supplied by what is
in the judge's heart, translated that means I am not going to
vote against my base because I am running for President.
We have got a chance to start over. I hope we will take
that chance and you will be asked hard questions and I think
you expect that. My belief is that you will do well because
whether or not I agree with you on the big themes of life is
not important. The question for me is have you earned the right
to be here.
If I give you this robe to put you on the Supreme Court, do
I believe at the end of the day that you will do what you think
is best, that you have courage and you will be fair. Come
Thursday I think I will know more about that. Good luck.
Chairman Leahy. Thank you. Just so we make sure we are all
using the same facts, Mr. Estrada was nominated when
Republicans were in charge of the Senate, he was not given a
hearing by the Republicans.
He was given a hearing when the Democrats took back the
majority and the Senate and then he was told at that time,
there were a number of questions that were submitted to him by
both Republicans and Democrats and before it could be set for a
vote on the floor to answer those questions, he declined to, he
may have been distracted by an offer of a very high paying law
firm, but I do not know.
He was not given a hearing when the Republicans were in
charge. He was given a hearing when the Democrats were in
charge.
Senator Sessions. If I may, Mr. Chairman, since you brought
it up.
Chairman Leahy. I yield to Senator Sessions.
Senator Sessions. We had seven attempts to bring him up for
a final vote and that was blocked. I think I spoke on his
behalf more than any other Senator.
I do feel like that it was a clear decision on the part of
the Democrats. The objection over release of documents of
course were internal memorandum--legal memorandum that he had
provided that the former Solicitor General said it was not
appropriate for the Department of Justice to produce. Thank
you.
Chairman Leahy. He should have had that hearing when the
Republicans were in charge is what you are saying.
Senator Cardin. Once Senator Cardin is finished, we will
take a 10-minute break.
STATEMENT OF HON. BENJAMIN CARDIN, A U.S. SENATOR FROM MARYLAND
Senator Cardin. Judge Sotomayor, welcome to the United
States Senate. I think you will find that each member of this
Committee and each member of the United States Senate wants to
do what is right for our country.
Now we may differ on some of our views, which will come out
during this hearing, but I think we all share a respect for
your public service. Thank you for your willingness to serve on
the Supreme Court of the United States and I thank your family
for the sacrifices they have made.
I am honored to represent the people of Maryland in the
U.S. Senate and to serve on the Judiciary Committee, as we
consider one of our most important responsibilities, whether we
should recommend to the full Senate the confirmation of Judge
Sonia Sotomayor to be an Associate Justice of the Supreme Court
of the United States.
The next term of the Supreme Court that begins in October
is likely to consider fundamental issues that will impact the
lives of all Americans. In recent years, there have been many
important decisions decided by the Supreme Court by a 5-4 vote.
Each Justice can play a critical role in forming the needed
consensus in our nation's highest court.
A new Justice could and very well may have a profound
impact on the direction of the court.
Supreme Court decisions affect each and every person in our
nation. I think of my own family's history. My grandfather came
to America more than 100 years ago. I am convinced that they
came to America not only for greater economic opportunities,
but because of the ideals expressed in our Constitution,
especially the First Amendment guaranteeing religious freedom.
My grandparents wanted their children to grow up in a
country where they were able to practice their Jewish faith and
fully participate in their community and government. My father,
one of their sons, became a lawyer, state legislator, Circuit
Court judge and President of his synagogue. And now his son
serves in the U.S. Senate.
While our Founding Fathers made freedom of religion a
priority, equal protection for all races took longer to
achieve. I attended Liberty School No. 64, a public elementary
school in Baltimore City. It was part of a segregated public
school system that under the law denied every student in
Baltimore the opportunity to learn in a classroom that
represented the diversity of our community.
I remember with great sadness how discrimination was not
only condoned but, more often than not, actually encouraged
against Blacks, Jews, Catholics, and other minorities in the
community. There were neighborhoods that my parents warned me
to avoid for fear of my safety because I was Jewish. The local
movie theater denied admission to African Americans. Community
swimming pools had signs that said, ``No Jews, No Blacks
Allowed.'' Even Baltimore's amusement parks and sports clubs
were segregated by race. Then came Brown v. Board of Education
and suddenly my universe and community were changed forever.
The decision itself moved our nation forward by correcting
grievous wrongs that were built into the law. It also brought
to the forefront of our nation's consciousness a great future
jurist from Baltimore, Thurgood Marshall. Marshall had been
denied admission to the University of Maryland Law School due
to the color of his skin but went on to represent the
plaintiffs in the 1954 landmark Brown v. Board of Education.
And in 1967, it was Marshall, the grandson of a slave, who was
appointed by President Lyndon Johnson as the first African
American to serve on the Supreme Court.
The nine justices of the United States Supreme Court have
the tremendous responsibility of safeguarding the framers'
intent and the guiding values of our Constitution while
ensuring the protections and rights found in that very
Constitution are applied to and relevant to the issues of the
day. At times, the Supreme Court has and should look beyond
popular sentiment to preserve these basic principles and the
rule of law. The next justice, who will fill Justice Souter's
place on the court will be an important voice on these
fundamental issues.
It is my belief that the Constitution and Bill of Rights
were created to be living documents that stand together as the
foundation for the rule of law in our nation. Our history
reflects this. When the Constitution was written, African
Americans were considered property and counted only as three-
fifths of a person. Non-whites and women were not allowed to
vote. Individuals were restricted by race as to whom they could
marry. Laws passed by Congress and decisions by the Supreme
Court undeniably moved our country forward, continuing the
progression of Constitutional protections that have changed our
Nation for the better.
Before the Court ruled in Brown v. Board of Education that
separate was not equal, the law permitted our society to have
separate facilities for black and white students. Before the
Court ruled in Loving v. Virginia, a state could prohibit
persons from marrying based on race. Before the Court ruled in
Roe v. Wade, women had no constitutional implied right to
privacy. These are difficult questions that have come before
the Court and that the Framers could not have anticipated. New
challenges will continue to arise but the basic framework of
protections remains.
I want to compliment President Obama in forwarding to the
United States Senate a nominee, Judge Sonia Sotomayor, who is
well qualified for our consideration. Her well-rounded
background, including extensive experiences as a prosecutor,
trial judge and appellate judge, will prove a valuable addition
to our nation's court.
As a relatively new member of the Senate Judiciary
Committee, as I prepared for this week, I considered a few key
standards that apply to all judicial nominations. First, I
believe nominees must have an appreciation for the Constitution
and the protections it provides to each and every American. She
or he must embrace a judicial philosophy that reflects
mainstream American values, not narrow ideological interests.
They should have a strong passion to continue the Court's
advancements in Civil Rights. There is a careful balance to be
found here. Our next Justice should advance the protections in
our Constitution, but not disregard important precedent that
has made our society stronger by embracing our civil liberties.
I believe judicial nominees also must demonstrate a respect
for the rights and responsibilities of each branch of
government. These criteria allow me to evaluate a particular
judge and whether she or he might place their personal
philosophy ahead of the responsibility of the office.
As this Committee begins considering the nomination of
Sonia Sotomayor, I want to quote Justice Thurgood Marshall, who
said, ``None of us got where we are solely by pulling ourselves
up by our bootstraps.'' Judge Sotomayor is a perfect example of
how family, hard work, supportive professors and mentors, and
opportunity all can come together to create a real American
success story.
She was born in New York, to a Puerto Rican family, and
grew up in a public housing project in the South Bronx. Her
mother was a nurse and her father was a factory worker with a
third-grade education. She was taught early in life that
education is the key to success, and her strong work ethic
enabled her to excel in school and graduate valedictorian of
her high school.
She attended Princeton University, graduating cum laude and
Phi Beta Kappa, and she received the highest honors Princeton
awards to an undergraduate. At Yale Law School, she was editor
of the Law Review, where she was known to stand up for herself
and not to be intimidated by anyone.
Nominated by both Democratic and Republican presidents, for
17 years she has been a distinguished jurist and now has more
federal judicial experience than any Supreme Court nominee in
the last hundred years.
This week's hearings are essential. With some understanding
of the context of Judge Sotomayor's life and the role that she
potentially is about to fill on the Supreme Court, I believe it
is particularly important during these confirmation hearings to
question Judge Sotomayor on the guiding principles she would
use on reaching decisions.
For example, it is important for me to understand her
interpretation of established precedent, on protecting
individual Constitutional rights. I believe it would be wrong
for Supreme Court Justices to turn their back on landmark Court
precedents protecting individual Constitutional rights.
It is likely that the Supreme Court will consider important
protections in our Constitution for women, our environment and
consumers, as well as voting rights, privacy, and the
separation of church and state, among others, in coming years.
The Supreme Court also has recently been active in imposing
limits on executive power. It will continue to deal with the
Constitutional rights in our criminal justice system, the
rights of terror detainees and the rights of non-citizens.
All of these issues test our Nation's and the Supreme
Court's commitment to our founding principles and fundamental
values. For this reason, we need to know how our nominee might
approach these issues and analyze these decisions.
Mr. Chairman, I look forward to hearing from Judge
Sotomayor on these issues and I expect that she will share with
this committee and the American people her judicial views and
her thoughts on the protections in our Constitution.
Once again, Judge Sotomayor, I want to thank you for your
public service and readiness to take on these great
responsibilities for our nation. I also again want to thank
your family for their clear support and sacrifice that has
brought us to this hearing today.
Chairman Leahy. Thank you, Senator Cardin. After discussion
with Senator Sessions, we will take a 10-minute break and come
back. We are trying to figure out a lunch hour time. You have
been very, very patient, Judge.
One thing we will do in case the press wonders, there is a
sign in front of you that has your name, which everybody knows
here. It is angled in such a way that it is shining right in
the eyes--no, don't you worry about it. The sign will be gone.
That will not mean that that is not your place when you come
back. Thank you. We stand recessed for 10 minutes.
[Recess 11:42 a.m. to 12:01 p.m.]
Chairman Leahy. Judge, you may have a broken ankle, but you
beat me back to the hearing room. I am looking, Senator
Sessions. It will be Senator Cornyn next. Is that right?
Senator Sessions. Yes.
Chairman Leahy. Senator Cornyn, and then Senator
Whitehouse.
Senator Cornyn.
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Judge Sotomayor, you will recall Justice Jackson said of
the Supreme Court, ``We are not final because we are
infallible. We are infallible only because we are final.''
Hence, the importance of these hearings and your nomination.
I want to join my colleagues in extending a warm welcome to
you and your family and, of course, join my other colleagues
who have noted your distinguished career. As I have said as
often as I have been asked about your nomination in the weeks
since it occurred, I said your nomination should make us all
feel good as Americans that people of humble origin can work
hard, through sacrifice and love and support of their families,
achieve great things in America. That makes me feel very good
about our country and about the opportunity it provides to each
of us.
In the history of the United States, there have only been
110 people who served on the Supreme Court--110. It is amazing
to think about that. This means that each and every Supreme
Court nomination is a historic moment for our Nation. Each
Supreme Court nomination is a time for national conversation
and reflection on the role of the Supreme Court.
We have to ask ourselves, those of us who have the
constitutional obligation to provide advice and consent, what
is the proper direction of the Supreme Court in deciding how we
should vote and conduct ourselves during the course of the
hearing. And, of course, I think it is always useful to recall
our history, that the Framers created a written Constitution to
make sure our constitutional rights were fixed and certain;
that the State conventions who represented we, the people,
looked at that written Constitution and decided to ratify it.
And the idea was, of course, that our rights should not be
floating in the ether but, rather, be written down for all to
see so we could all understand what those rights, in fact, are.
This framework gave judges a role that is both unique and
very important. The role of judges was intended to be modest--
that is, self-restrained and limited. Judges, of course, are
not free to invent new rights as they see fit. Rather, they are
supposed to enforce the Constitution's text and to leave the
rest up to ``we, the people,'' through the elected
representatives of the people, such as the Congress.
It is my opinion that over time the Supreme Court has often
veered off the course established by the Framers. First, the
Supreme Court has invented new rights not clearly rooted in any
constitutional text. For example, the Supreme Court has micro
managed the death penalty, recognized in 35 States and by the
Federal Government itself, and created new rights spun from
whole cloth. It has announced constitutional rules governing
everything from punitive damages to sexual activity. It has
relied on international law that you have heard some discussion
about that the people have never adopted.
The Supreme Court has even taken on the job of defining the
rules of the game of golf. If you are curious, that is PGA Tour
v. Martin from 2001.
Some people have talked about judicial activism. In one
sense, I think people say activism is a good thing if it is
enforcing the rights and the laws that have been passed by the
legislative branch. On the other hand, as you know, inventing
new rights, veering off this course of enforcing a written text
and pulling ideas out of the ether are pretty far from
enforcing the written Constitution that the Framers proposed
and that the people enacted.
My opinion is that as the Supreme Court has invented new
rights, it has often neglected others. This flip side is
troubling to me, too. Many of the original important safeguards
on Government power have been watered down or even ignored.
Express constitutional limitations like the Takings Clause of
the Fifth Amendment, designed to protect private property, and
the Commerce Clause's limitations on federal power, as well as
the Second Amendment right to keep and bear arms, I believe
have been artificially limited, almost like they have been
written out of the Constitution over time. On occasion, judges
just have not enforced them like I believe the American people
expected them to do.
So what is the future like? Where should the Supreme Court
go from here? I think there are two choices.
First, the Supreme Court could try to get us back on
course. That is, the Court could demonstrate renewed respect
for our original plan of Government and return us slowly but
surely to a written Constitution and written laws rather than
judge-made laws. The Supreme Court's recent Second Amendment
decision in D.C. v. Heller I think is a good example of that.
Or the Court could, alternatively, veer off course once
again and follow its own star. It could continue to depart from
the written Constitution. It could further erode the
established rights that we have in the text of the
Constitution, and it could invent even more brand-new rights
not rooted in the text and not agreed to by the American
people.
Your Honor, I think the purpose of this hearing is to
determine which path you would take us on, if confirmed to the
United States Supreme Court. Would you vote to return to a
written Constitution and laws written by the elected
representatives of the people? Or would you take us further
away from the written Constitution and laws legitimized by the
consent of the governed?
To help the American people understand which of these paths
you would take us down, we need to know more about your record.
We need to know more about the legal reasoning behind some of
your opinions on the Second Circuit. And we need to know more
about some of your public statements related to your judicial
philosophy.
In looking at your opinions on the Second Circuit, we
recognize that lower-court judges are bound by the Supreme
Court and by circuit precedent. To borrow a football analogy, a
lower-court judge is like the quarterback who executes the
plays, not the coach that calls them. That means many of your
cases do not really tell us that much about your judicial
philosophy or what it would be in action, if confirmed to the
United States Supreme Court. But a few of your opinions do
raise questions that I intend to ask you about, and they do
suggest, I think, the kinds of plays you would call if you were
promoted to the coaching staff.
These opinions raise the question: Would you steer the
Court in a direction of limiting the rights that generations of
Americans have regarded as fundamental? So Americans need to
know whether you would limit, for example, the scope of the
Second Amendment and whether we can count on you to uphold one
of the fundamental liberties enshrined in the Bill of Rights.
They need to know, we need to know, whether you would limit
the scope of the Fifth Amendment and whether you would expand
the definition of ``public use'' by which Government can take
private property from one person and give it to another. And we
need to know whether you will uphold the plain language of the
Equal Protection Clause of the 14th Amendment, promising that,
``No State shall..deny to any person within its jurisdiction
the equal protection of the laws.''
Judge, some of your opinions suggest that you would limit
some of these constitutional rights, and some of your public
statements that have already been mentioned suggest that you
would invent rights that do not exist in the Constitution.
For example, in a 2001 speech, you argue that there is no
objectivity in law, but only what you called ``a series of
perspectives rooted in life experience of the judge.''
In a 2006 speech, you said that judges can and even must
change the law--even introducing what you called ``radical
change''--to meet the needs of an ``evolving'' society.
In a 2009 speech, you endorsed the use of foreign law in
interpreting the American Constitution on the grounds that it
gives judges ``good ideas'' that ``get their creative juices
flowing.''
Judge Sotomayor, no one can accuse you of not having been
candid about your views. Not every nominee is so open about
their views. Yet many Americans are left to wonder whether
these various--what these various statements mean and what you
are trying to get at with these various remarks. Some wonder
whether you are the kind of judge who will uphold the written
Constitution or the kind of judge who will veer us off course--
and toward new rights invented by judges rather than ratified
by the people.
These are some my concerns, and I assure you that you will
have every opportunity to address those and make clear which
path you would take us down if you are confirmed to the Supreme
Court.
I thank you very much and congratulations once again.
Chairman Leahy. Thank you very much, Senator Cornyn.
Senator Whitehouse.
STATEMENT OF HON. SHELDON WHITEHOUSE, A U.S. SENATOR FROM RHODE
ISLAND
Senator Whitehouse. Thank you, Mr. Chairman.
Judge Sotomayor, welcome. Welcome to you and to your
family. Your nomination caps what has already been a remarkable
legal career. And I join many, many Americans who are so proud
to see you here today. It is a great country, isn't it? And you
represent its greatest attributes.
Your record leaves no doubt that you have the intellectual
ability to serve as a Justice. From meeting with you and from
the outpouring of support I have experienced both personally
and from organizations that have worked with you, your demeanor
and your collegiality are well established. I appreciate your
years as a prosecutor, working in the trenches of law
enforcement. I am looking forward to learning more about the
experience and judgment you are poised to bring to the Supreme
Court.
In the last 2\1/2\ months and today, my Republican
colleagues have talked a great deal about judicial modesty and
restraint. Fair enough to a point, but that point comes when
these words become slogans, not real critiques of your record.
Indeed, these calls for restraint and modesty, and complaints
about ``activist'' judges, are often codewords, seeking a
particular kind of judge who will deliver a particular set of
political outcomes.
It is fair to inquire into a nominee's judicial philosophy,
and we will here have a serious and fair inquiry. But the
pretense that Republican nominees embody modesty and restraint,
or that Democratic nominees must be activists, runs starkly
counter to recent history.
I particularly reject the analogy of a judge to an
``umpire'' who merely calls ``balls and strikes.'' If judging
were that mechanical, we would not need nine Supreme Court
Justices. The task of an appellate judge, particularly on a
court of final appeal, is often to define the strike zone,
within a matrix of constitutional principle, legislative
intent, and statutory construction.
The umpire analogy is belied by Chief Justice Roberts,
though he cast himself as an umpire during his confirmation
hearings. Jeffrey Toobin, a well-respected legal commentator,
has recently reported that--and this is a quote--``[i]n every
major case since he became the Nation's 17th Chief Justice,
Roberts has sided with the prosecution over the defendant, the
state over the condemned, the executive branch over the
legislative, and the corporate defendant over the individual
plaintiff.'' Some umpire.
And is it a coincidence that this pattern, to continue
Toobin's quote, ``has served the interests, and reflected the
values of the contemporary Republican party'' ? Some
coincidence.
For all the talk of modesty and restraint, the right-wing
Justices of the Court have a striking record of ignoring
precedent, overturning congressional statutes, limiting
constitutional protections, and discovering new constitutional
rights: the infamous Ledbetter decision, for instance; the
Louisville and Seattle integration cases; the first limitation
on Roe v. Wade that outright disregards the woman's health and
safety; and the D.C. Heller decision, discovering a
constitutional right to own guns that the Court had not
previously noticed in 220 years. Some balls and strikes.
Over and over, news reporting discusses ``fundamental
changes in the law'' wrought by the Roberts Court's right-wing
flank. The Roberts Court has not kept the promises of modesty
or humility made when President Bush nominated Justices Roberts
and Alito.
So, Judge Sotomayor, I would like to avoid codewords and
look for a simple pledge from you during these hearings: that
you will respect the role of Congress as representatives of the
American people; that you will decide cases based on the law
and the facts; that you will not prejudge any case, but listen
to every party that comes before you; and that you will respect
precedent and limit yourself to the issues that the Court must
decide; in short, that you will use the broad discretion of a
Supreme Court Justice wisely.
Let me emphasize that broad discretion. As Justice Stevens
has said, ``the work of Federal judges from the days of John
Marshall to the present, like the work of the English common-
law judges, sometimes requires the exercise of judgment--a
faculty that inevitably calls into play notions of justice,
fairness, and concern about the future impact of a decision.''
Look at our history. America's common law inheritance is
the accretion over generations of individual exercises of
judgment. Our Constitution is a great document that John
Marshall noted leaves ``the minor ingredients'' to judgment, to
be deduced by our Justices from the document's great
principles. The liberties in our Constitution have their
boundaries defined, in the gray and overlapping areas, by
informed judgment. None of this is ``balls and strikes.''
It has been a truism since Marbury v. Madison that courts
have the authority to ``say what the law is,'' even to
invalidate statutes enacted by the elected branches of
government when they conflict with the Constitution. So the
issue is not whether you have a wide field of discretion: you
will. As Justice Cardozo reminds us, you are not free to act as
``a knight-errant, roaming at will in pursuit of [your] own
ideal of beauty or of goodness,'' yet, he concluded, ``[w]ide
enough in all conscience is the field of discretion that
remains.''
The question for this hearing is: Will you bring good
judgment to that wide field? Will you understand, and care, how
your decisions affect the lives of Americans? Will you use your
broad discretion to advance the promises of liberty and justice
made by the Constitution?
I believe that your diverse life experience, your broad
professional background, your expertise as a judge at each
level of the system, will bring you that judgement. As Oliver
Wendell Holmes famously said, the life of the law has not been
logic, it has been experience.
If your wide experience brings life to a sense of the
difficult circumstances faced by the less powerful among us:
the woman shunted around the bank from voicemail to voicemail
as she tries to avoid foreclosure for her family; the family
struggling to get by in the neighborhood where the police only
come with raid jackets on; the couple up late at the kitchen
table after the kids are in bed sweating out how to make ends
meet that month; the man who believes a little differently, or
looks a little different, or thinks things should be different;
if you have empathy for those people in this job, you are doing
nothing wrong.
The Founding Fathers set up the American judiciary as a
check on the excesses of the elected branches and as a refuge
when those branches are corrupted or consumed by passing
passions. Courts were designed to be our guardians against what
Hamilton in the Federalist Papers called ``those ill humors,
which the arts of designing men, or the influence of particular
conjunctures, sometimes disseminate among the people . . .
and which . . . have a tendency . . . to occasion serious
oppressions of the minor party in the community.'' In present
circumstances, those oppressions tend to fall on the poor and
voiceless. But as Hamilton noted, ``[c]onsiderate men, of every
description, ought to prize whatever will tend to beget or
fortify that temper in the courts: as no man can be sure that
he may not be tomorrow the victim of a spirit of injustice, by
which he may be a gainer to-day.''
The courtroom can be the only sanctuary for the little guy
when the forces of society are arrayed against him, when proper
opinion and elected officialdom will lend him no ear. This is a
correct, fitting, and intended function of the judiciary in our
constitutional structure, and the empathy President Obama saw
in you has a constitutionally proper place in that structure.
If everyone on the Court always voted for the prosecution
against the defendant, for the corporation against the
plaintiffs, and for the government against the condemned, a
vital spark of American democracy would be extinguished. A
courtroom is supposed to be a place where the status quo can be
disrupted, even upended, when the Constitution or laws may
require; where the comfortable can sometimes be afflicted and
the afflicted find some comfort, all under the stern shelter of
the law. It is worth remembering that judges of the United
States have shown great courage over the years, courage verging
on heroism, in providing that sanctuary of careful attention,
what James Bryce called ``the cool dry atmosphere of judicial
determination,'' amidst the inflamed passions or invested
powers of the day.
Judge Sotomayor, I believe your broad and balanced
background and empathy prepare you well for this constitutional
and proper judicial role. And I join my colleagues in welcoming
you to the Committee and looking forward to your testimony.
Chairman Leahy. Thank you.
Senator Coburn.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM OKLAHOMA
Senator Coburn. Thank you.
Judge, welcome. It is truly an honor to have you before us.
It says something remarkable about our country that you are
here, and I assure you during your time before this Committee
you will be treated with the utmost respect and kindness. It
will not distinguish, however, that we will be thorough as we
probe the areas where we have concerns.
There is no question that you have a stellar resume, and if
resumes and judicial history were all that we went by, we
wouldn't need to have this hearing. But, in fact, other things
add into that.
Equally important to us providing consent on this
nomination is our determination that you have a judicial
philosophy that reflects what our Founders intended. There is
great division about what that means. I also wanted to note
that I thought this was your hearing, not Judge Roberts'
hearing, and that the partial-birth abortion ban was a law
passed by the United States Congress and was upheld by the
Supreme Court. So I have a different point of view on that.
As I expressed to you in our meeting, I think our Nation is
at a critical point. I think we are starting to see cracks, and
the reason I say that is because I think the glue that binds
our Nation together is not our political philosophies. We have
very different political philosophies. The thing that binds us
together is an innate trust that you can have fair and
impartial judgment in this country, that we better than any
other nation, when we have been wrong, have corrected the
wrongs of our founding; but we have instilled the confidence
that, in fact, when you come before it, there is blind justice.
And that, in fact, allows us the ability to overlook other
areas where we are not so good because it instills in us the
confidence of an opportunity to have a fair hearing and a just
outcome.
I am concerned, as many of my colleagues, with some of your
statements, and I do not know if the statements were made to be
provocative or if they are truly heart-felt in what you have
said. But I know that some of those concerns will guide my
questioning when we come to the questioning period. And you
were very straightforward with me in our meeting, and my hope
is that you will be there as well.
I am deeply concerned by your assertion that the law is
uncertain--that goes completely against what I just said about
the rule of law being the glue that binds us together--and your
praise for an unpredictable system of justice. I think we want
it to be predictable. We want it to be predictable in its
fairness and the fact in how cases are viewed. And it shouldn't
matter which judge you get. It should matter what the law is
and the facts are.
I am worried that our Constitution may be seen to be
malleable and evolving when I, as someone who comes from the
heartland, seems to grasp and hold and the people that I
represent from the State of Oklahoma seem to grasp and hold
that there is a foundational document and there are statutes
and occasionally treaties that should be the rule rather than
our opinions.
Other statements such as the court of appeals is where
policy is made, that is surprising to me. And as I look at our
Founders, the Court is to be a check, not a policymaker. Your
assertion that ethnicity and gender will make someone a better
judge, although I understand the feelings and emotions behind
that, I am not sure that could be factually correct. Maybe a
better judge than some, but not a better judge than others.
The other statement, there is no objective stance but only
a series of perspectives, no neutrality, no escape from choice
in judging--what that implies, the fact that it is subjective
implies that it is not objective. And if we disregard objective
consideration of facts, then all rulings are subjective, and we
lose the glue that binds us together as a Nation.
Even more important is your questioning of whether the
application of impartiality in judging, including transcending
personal sympathies and prejudices, is possible in most cases
or is even desirable is extremely troubling to me.
You have taken the oath already twice and, if confirmed,
will take it again. And I want to repeat it again. It has been
said once this morning. Here is the oath: ``I do solemnly swear
or affirm that I will administer justice without respect to
persons, and do equal right to the poor and to the rich, and
will faithfully and impartially discharge and perform all the
duties incumbent upon me under the Constitution and the laws of
the United States, so help me God.''
It does not reference foreign law anywhere. It does not
reference whether or not we lose influence in the international
community. We lost influence when we became a country in the
international community to several countries. But the fact is
that did not impede us from establishing this great republic.
I think this oath succinctly captures the role of a judge,
and I am concerned about some of your statements in regard to
that. Your judicial philosophy might be--and I am not saying it
is--inconsistent with the impartial, neutral arbiter that the
oath describes.
With regard to your judicial philosophy, the burden of
proof rests on you, but in this case, that burden has been
exaggerated by some of your statements and also by some of
President Obama's stated intent to nominate someone who is not
impartial but instead favors certain groups of people.
During the campaign, he promised to nominate someone who
has got the heart and the empathy to recognize what it is like
to be a young teenage mom. The implication is that our judges
today do not have that. Do you realize how astounding that is?
The empathy to understand what it is like to be poor, to be
African American or gay or disabled or old. Most of our judges
understand what it is like to be old.
[Laughter.]
Senator Coburn. Senator Obama referred his ``empathy
standard'' when he voted against Chief Justice Roberts. He
stated, ``The tough cases can only be determined on the basis
of one's deepest values, one's core concerns, one's broader
perspective on how the world works, and the depth and breadth
of one's empathy.''
I believe that standard is antithetical to the proper role
of a judge. The American people expect their judges to treat
all litigants equally, not to favor and not to enter the
courtroom already prejudiced against one of the parties. That
is why Lady Justice is always depicted blind and why Aristotle
defined law as ``reason free from passion.''
Do we expect a judge to merely call balls and strikes?
Maybe so, maybe not. But we certainly do not expect them to
sympathize with one party over the other, and that is where
empathy comes from.
Judge Sotomayor, you must prove to the Senate that you will
adhere to the proper role of a judge and only base your
opinions on the Constitution, statutes, and, when appropriate,
treaties. That is your oath. That is what the Constitution
demands of you. You must demonstrate that you will strictly
interpret the Constitution and our laws and will not be swayed
by your personal biases or your political preferences--which
you are entitled to.
As Alexander Hamilton stated in Federalist Paper No. 78,
``The interpretation of the law is the proper and peculiar
province of the courts. The Constitution, however, must be
regarded by the judges as fundamental law.'' He further stated
it was indispensable in the courts of justice that judges have
``an inflexible and uniform adherence to the rights of the
Constitution.'' A nominee who does not adhere to these
standards necessarily rejects the role of a judge as dictated
by the Constitution and should not be confirmed.
I look forward to a respectful and rigorous interchange
with you during my time to question you. I have several
questions that I hope you will be able to answer. I will try
not to put you in a case where you have to answer a future
opinion. I understand your desire in that regard, and I respect
it.
I thank you for being here, and I applaud your
accomplishments. May God bless you.
Chairman Leahy. Thank you, Senator.
We have been joined by the Deputy Majority Leader, Senator
Durbin, and just so everyone can plan, especially you, Judge,
we will hear from Senator Durbin. We will then recess until 2
o'clock, and we will come back at 2 o'clock, at which point
Senator Klobuchar will be recognized.
Senator Durbin.
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM
ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman.
Judge Sotomayor, welcome to you and your family. These
nomination hearings can be long and painful, but after
surviving a broken ankle and individual meetings with 89
different U.S. Senators in the past few weeks, you are
certainly battle-tested.
At the nomination hearing for Judge Ruth Bader Ginsburg in
1993, my friend Senator Paul Simon of Illinois asked the
following question: ``You face a much harsher judge . . . than
this Committee and that is the judgment of history. And that
judgment is likely to revolve around the question: Did she
restrict freedom or did she expand it? ''
I asked this question with respect to the nominations of
Chief Justice Roberts and, Justice Alito, and I think it is an
important question of any court nominee, particularly to the
Supreme Court.
The nine men and women on the Supreme Court serve lifetime
appointments, and they resolve many of our most significant
issues. It is the Supreme Court that defines our personal right
to privacy and decides the restrictions to be placed on the
most personal aspects of our lives.
The Court decides the rights of the victims of
discrimination, immigrants, consumers. The nine Justices decide
whether Congress has the authority to pass laws to protect our
civil rights and our environment. They decide what checks will
exist on the executive branch in war and in peace.
Because these issues are so important, we need Justices
with intelligence, knowledge of the law, the proper judicial
temperament, and a commitment to impartial justice. More than
that, we need our Supreme Court Justices to have an
understanding of the real world and the impact their decisions
will have on everyday people. We need Justices whose wisdom----
[Protestor outburst.]
Chairman Leahy. The officer will remove the person. The
officer will remove the person. As I have said before, and both
Senator Sessions and I have said, you are guests of the Senate
while you are here. Everybody is a guest of the Senate. Judge
Sotomayor deserves the respect of being heard. The Senators
deserve the respect of being heard. No outburst will be allowed
that might interrupt the ability of the Senators or of the
judge or, I might say, of our guests who are sitting here
patiently listening to everything that is being said.
I thank the Capitol Police for responding as quickly and as
rapidly and as professionally as they always do. I apologize to
Senator Durbin for the interruption, and I yield back to him.
Senator Sessions. Thank you, Mr. Chairman.
Senator Durbin. Thank you, Mr. Chairman.
More than that, we need our Supreme Court Justices to have
an understanding of the real world and the impact their
decisions have on everyday people. We need Justices whose
wisdom comes from life, not just from law books.
Sadly, this important quality seems to be in short supply.
The current Supreme Court has issued many decisions that I
think represent a triumph of ideology over common sense. When
Chief Justice Roberts came before this Committee in 2005, he
famously said a Supreme Court Justice is like an umpire calling
balls and strikes. We have observed, unfortunately, that it is
a little hard to see home plate from right field.
If being a Supreme Court Justice were as easy as calling
balls and strikes, we wouldn't see many 5-4 decisions in the
Court. But in the last year alone, 23 of the Supreme Court's 74
decisions were decided by a 5-4 vote.
The recent decision of Ledbetter v. Goodyear Tire and
Rubber is a classic example of the Supreme Court putting
activism over common sense. The question in that case was
simply, fundamental: Should women be paid the same as men for
the same work? Lilly Ledbetter was a manager at a Goodyear Tire
plant in Alabama, worked there for 19 years, did not learn
until she was about to retire that her male colleagues in the
same job were paid more. She brought a discrimination lawsuit.
The jury awarded her a verdict.
The Supreme Court in a 5-4 decision reversed it and threw
out the verdict. The basis for it? They said Lilly Ledbetter
filed her discrimination complaint too late. They said her
complaint should have been filed within 180 days of the first
discriminatory paycheck.
That decision defied common sense in the realities of a
workplace where few employees know what their fellow employees
are being paid. It contradicted decades of past precedent.
In the case Safford Unified School District v. Redding, a
13-year-old girl was strip-searched at her school because of a
false rumor that she was hiding ibuprofen pills. At the oral
argument in April several of the Supreme Court Justices asked
questions about the case that, unfortunately, revealed a
stunning lack of empathy about the eighth-grade victim. One of
the Justices even suggested that being strip-searched was no
different than changing clothes for gym class. Although Justice
Ruth Bader Ginsburg helped her eight male colleagues understand
why the strip-search of a 13-year-old girl was humiliating
enough to violate her constitutional rights, a majority of the
Justices ruled that the school officials were immune from
liability.
In a 5-4 case in 2007, Gonzales v. Carhart, the Supreme
Court again overturned past precedent and ruled for the first
time it was permissible to place restrictions on abortion that
do not include an exception regarding a woman's health.
Judge Sotomayor, you have overcome many obstacles in your
life that have given you an understanding of the daily
realities and struggles faced by everyday people. You grew up
in a housing complex in the Bronx. You overcame a diagnosis of
juvenile diabetes at age 8 and the death of your father at age
9. Your mother worked two jobs so she could afford to send you
and your brothers to Catholic schools, and you earned
scholarships to Princeton and Yale. I know how proud you are of
your mom and your family.
Your first job out of law school was as assistant district
attorney where you prosecuted violent crime. You went on to
work in a law firm representing corporations, which gave you
another valuable perspective. In 17 years as a Federal judge,
you have demonstrated an ability to see both sides of the
issues. You earned a reputation as being restrained and
moderate and neutral.
Of the 110 individuals who have served as Supreme Court
Justices throughout our Nation's history, 106 have been white
males. Until Thurgood Marshall's appointment to the Supreme
Court a generation ago, every Justice throughout our Nation's
history had been a white male. President Obama's nomination of
you to serve as the first Hispanic and the third woman on the
Supreme Court is historic. The President knows and we know that
to be the first you have to meet a higher standard. Before you
can serve on this Court, the American people, through their
elected Senators, will be asked to judge you. We owe it to you
and the Constitution to be a fair jury.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, and, Judge, thank you.
Enjoy your lunch. We will look forward to coming back. And when
you come back, we will hear from Senator Klobuchar, Senator
Kaufman, Senator Specter, Senator Franken, and I welcome
Senator Franken to the Committee. And we will then have an
introduction of you, and what everybody has really been waiting
to hear, we will hear from you. So thank you very, very much,
Judge.
[Whereupon, at 12:38 p.m., the Committee recessed, to
reconvene at 2:00 p.m., this same day.]
Chairman Leahy. Thank you. If we could get back order in
the room.
It's good to have you back here. As I recall, we left at
Senator Klobuchar. You're next, and I will yield to Senator
Klobuchar.
STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM THE STATE
OF MINNESOTA
Senator Klobuchar. Thank you very much, Mr. Chair.
Welcome back, Judge. It's a pleasure to see you again. I
enjoyed our conversation. And what I most remembered about
that, is that you confessed to me that you once brought a
winter parka to Minnesota in June.
[Laughter].
Senator Klobuchar. And I promise I will not hold that
against you during this week.
I know you have many friends and family here, but it was
really an honor for me to meet your mom. When President Obama
first announced your nomination, I loved the story about how
your mom saved all of her money to buy you and your brother the
first set of encyclopedias in the neighborhood, and it reminded
me of when my own parents brought us Encyclopedia Brittannicas.
It always held this hallowed place in the hallway, and for me
they were a window on the world and a gateway to knowledge,
which they clearly were to you as well.
From the time you were nine years old, your mom raised you
and your brother on her own. She struggled to buy those
encyclopedias on her nurse's salary, but she did it because she
believed deeply in the value of education. You went on to be
the valedictorian of your high school class and to be tops in
your class in college, and go to law school.
After that, and this is an experience that we have in
common, you became a local prosecutor. Most of my questions
during this hearing will be about opinions you've authored and
work that you've done in the criminal area. I believe having
judges with real-world front-line experience as prosecutors is
a good thing.
When I think about the inspiring journey of your life I'm
reminded of other Supreme Court Justices who came from, in your
own words, ``modest and challenging circumstances''. There is
Justice O'Connor, who lived the first years of her life in a
ranch in Arizona with no running water and no electricity. By
sheer necessity, she learned how to mend fences, ride horses,
brand cattle, shoot a rifle, and even drive a truck, all before
she was 13 years old.
I also think about Justice Thurgood Marshall, who was the
great-grandson of a slave. His mother was a teacher, while his
father worked as a Pullman car waiter before becoming a steward
at an all-white country club. Justice Marshall waited tables to
put himself through law school and his mom actually pawned her
wedding and engagement rings to get the down payment to send
him to Howard University Law School here in Washington.
And then there's Justice Blackman, who grew up in a St.
Paul working-class neighborhood in my home State of Minnesota.
He was able to attend Harvard College only because at the last
minute the Harvard Club of Minnesota got him a scholarship, and
then he went on to Harvard where he worked as a tutor and a
janitor. Through four years of college and three years of law
school, his family was never able to scrape up enough money to
bring him back to Minnesota for Christmas.
Each of these very different Justices grew up in
challenging circumstances. No one can doubt that for each of
these Justices, their life experiences shaped their work and
they did--that they did on the Supreme Court. This should be
unremarkable and, in fact, it's completely appropriate.
After all, our own Committee members demonstrate the value
that comes from members who have different backgrounds and
perspectives. For instance, at the same time my accomplished
colleague Senator Whitehouse, son of a renowned diplomat, was
growing up in Saigon during the Vietnam War, I was working as a
car hop at the A&W Rootbeer stand in suburban Minnesota.
And while Senator Hatch is a famed gospel music songwriter,
Senator Leahy is such a devoted fan of the Grateful Dead that
he once had trouble taking a call from the President of the
United States because the Chairman was on stage with the
Grateful Dead.
[Laughter].
Senator Klobuchar. We have been tremendously blessed on
this Committee with the gift of having members with different
backgrounds and different experiences, just as different
experiences are a gift for any court in this land.
So when one of my colleagues questioned whether you, Judge,
would be a Justice for all of us or just for some of us, I
couldn't help but remember something that Hubert Humphrey once
said. He said, ``America is all the richer for the many
different and distinctive strands of which it is woven.''
Along those lines, Judge, you are only the third woman in
history to come before this Committee as a Supreme Court
nominee, and as you can see there are currently only two women
on this Committee, Senator Feinstein and myself. So I think
it's worth remembering that when Justice O'Connor graduated
from law school, the only offer she got from law firms were for
legal secretary positions. Justice O'Connor, who graduated
third in her class from Stanford Law School, saw her
accomplishments reduced to one question: can she type?
Justice Ginsberg faced similar obstacles. When she entered
Harvard Law School, she was one of only nine women in a class
of more than 500. One professor actually demanded that she
justify why she deserved a seat that could have gone to a man.
Later, she was passed over for a prestigious clerkship, despite
impressive credentials.
Nevertheless, both of them persevered, and they certainly
prevailed. Their undeniable merits triumphed over those who
sought to deny them opportunity. The women who came before you
to be considered by this Committee helped blaze a trail, and
although your record stands on your own, you also stand on
their shoulders, another woman with an opportunity to be a
Justice for all of us.
As Justice Ginsburg's recent comments regarding the strip
search of a 13-year-old girl indicate, as well as her dissent
in the Lilly Ledbetter Equal Pay case, being a Justice for all
of us may mean bringing some real-world practical experience
into the courthouse.
As we consider your nomination, we know that you are more
than a sum of your professional experiences. Still, you bring
one of the most wide-ranging legal resumes to this position:
local prosecutor, civil litigator, trial judge, and appellate
judge. Straight out of law school, you went to work as a
prosecutor in the Manhattan D.A.'s office and you ended up
staying there for five years.
When you're a prosecutor, the law ceases to be an abstract
subject. It's not just a dusty book in the basement. It's real
and it has an impact on real people's lives, whether it's
victims and their families, defendants and their families, or
the neighborhood where you live.
It also has a big impact on the individual prosecutor. You
never forget the big and difficult cases. I know in your case,
one of those is the serial burglar-turned-murderer, the Tarzan
murder case. In my case, it was a little girl named Taisha
Edwards, an 11-year-old girl shot by stray gang fire as she sat
at her kitchen table doing her homework.
As a prosecutor, you don't just have to know the law, you
also have to know people. So, Judge, I'm interested in talking
to you more about what you've learned from that job and how
that job shaped your legal career and your approach to judging.
I'm also interested in learning more about your views on
criminal law issues. I want to explore your views on the Fourth
Amendment, the confrontation clause, and sentencing law and
policy. I'd like to know, in criminal cases as well as in civil
cases, how you would balance the text of statutes and the
Constitution and the practical things you see out there in the
world.
It seems to me in cases like Falso, Santa, and Howard that
you have a keen understanding of the real-world implications of
your decisions. I often get concerned that those pragmatic
experiences are missing in judicial decision-making, especially
when I look at the recent Supreme Court case in which the
majority broadly interpreted the confrontation clause to
include crime lab workers. I agree with the four dissenting
Justices that the ruling has vast potential to disrupt criminal
procedures that already give ample protections against the
misuse of scientific evidence.
Your old boss, Manhattan District Attorney Robert
Morgenthau, called you a fearless and effective prosecutor.
This is how he put it once in an interview: ``We want people
with good judgment because a lot of the job of a prosecutor is
making decisions. I also want to see some signs of humility in
anybody that I hire. We're giving young lawyers a lot of power
and we want to make sure that they're going to use that power
with good sense and without arrogance.''
These are among the very qualities I'm looking for in a
Supreme Court Justice. I, too, am looking for a person with
good judgment, someone with intellectual curiosity and
independence, but who also understands that her judicial
decisions affect real people.
With that, I think, comes the second essential quality:
humility. I'm looking for a Justice who appreciates the awesome
responsibility that she will be given, if confirmed, a Justice
who understands the gravity of the office and who respects the
very different roles that the Constitution provides for each of
the three branches of government.
Finally, a good prosecutor knows that her job is to enforce
the law without fear or favor; likewise, a Supreme Court
Justice must interpret the law without fear or favor. And I
believe your background and experiences, including your
understanding of front-line law enforcement, will help you to
always remember that the cases you hear involve real people
with real problems who are looking for real remedies.
With excellent justice and excellent judgment, and a sense
of humility, I believe you can be a Justice for all of us.
Thank you very much.
Chairman Leahy. Thank you, Senator Klobuchar.
Next, Senator Kaufman.
STATEMENT OF HON. EDWARD E. KAUFMAN, A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Kaufman. Thank you, Mr. Chairman.
Welcome, Judge Sotomayor, and welcome to your family and
friends. Congratulations on your nomination, and
congratulations to your parents, who did such a good job on
raising you to get to where you are today.
We are beginning--now beginning the end of an
extraordinarily important process, to confirm a Supreme Court
Justice of the United States. Short of voting to go to war, the
Senate's constitutional obligation to advise and consent on
Supreme Court nominees is probably our most important
responsibility.
Supreme Court Justices serve for life, and once the Senate
confirms a nominee she is likely to be affecting the law and
American lives much longer than many of the Senators who are
here to confirm her. The advise-and-consent process for the
nomination began after Justice Souter announced his intent to
resign and President Obama consulted with members of both
parties before making his selection.
It has continued since then with the help from extensive
public debate among analysts and commentators, scholars and
activists, both in the traditional press and in the
blogosphere. This public vetting process, while not always
accurate or temperate, is extremely valuable both to the Senate
and to the public.
One of the truly great benefits of a free society is our
ability to delve deeply into an extensive public record. We
have seen a wide-ranging discussion of the issues in which
anyone--literally anyone--can help dissect and debate even the
most minute legal issue and personal expressions of opinion.
In another less public part of the process, Judge, you had
the wonderful experience of meeting with 90 Senators, over 90
percent--almost 90 percent of the Senate. These meetings are
also extremely useful. I know I learned a great deal from my
meeting and I'm confident my colleagues did as well.
For me, the critical criteria for judging a Supreme Court
nominee are the following: a first-rate intellect; significant
experience; unquestioned integrity; absolute commitment to the
rule of law; unwavering dedication to being fair and open-
minded; the ability to appreciate the impact of court decisions
on the lives of ordinary people.
Based on what we've learned so far, you are truly an
impressive nominee. I'm confident this hearing will give this
Committee, and the rest of the Senate, the information we need
to complete our constitutional duty. As Senators, I believe we
each owe you a decision based on your record and your answers
to our questions. That decision should not turn on empty code
words like ``judicial activist'', or on charges of guilt by
association, or on any litmus test. Instead, we should focus on
your record and your responses and determine whether you have
the qualities that will enable you to well serve all Americans
and the rule of law on our Nation's highest court.
As my colleagues have already noted, your rise from humble
beginnings to extraordinary academic and legal achievement is
an inspiration to us all. I note that you would bring more
Federal judicial experience to the Supreme Court than any
Justice in over 100 years. You also have incredibly valuable
practice experience not only as a prosecutor, but also a
commercial litigator.
In terms of your judicial record, you appear to have been
careful, thoughtful, and open-minded. In fact, what strikes me
most about your record is that it seems to reveal no biases.
You appear to take each case as it comes, without predilection,
giving full consideration to the arguments of both sides before
reaching a decision.
When Justice Souter announced his retirement in May, I
suggested the court would benefit from a broader range of
experience among its members. My concern at the time wasn't the
relative lack of women, or racial, or ethnic minorities on our
court, although that deficit is glaring. I was pointing to the
fact that most of the current Justices, whether they be black
or white, women or men, share roughly the same life
experiences. I am heartened by what you bring to the court
based on your upbringing, your story of achievement in the face
of adversity, your professional experience as a prosecutor and
commercial litigator, and yes, the prospect of your being the
first Latina to sit on the high court.
Though the Supreme Court is not a representative body, we
should hold as an ideal that it broadly reflect the citizens it
serves. Diversity shares many goals. Outside the courtroom, it
better equips our institutions to understand more of the
viewpoints and backgrounds that comprise our pluralistic
society. Moreover, a growing body of social research suggests
that groups with diverse experience and backgrounds come to the
right outcome more often than do non-diverse groups which may
be just as talented. I believe a diverse court will function
better as well.
Another concern I have about the current Supreme Court is
its handling of business cases. Too often it seems they
disregard settled law and congressional policy choices. Based
on my education, my experience and my inclination, I am not
anti-business, but whether it is preempting State consumer
protection laws, striking down punitive damage awards,
restricting access to the courts, or overturning 96 years of
pro-consumer antitrust law, today's court gives me the
impression that in business cases the working majority is
outcome-oriented and therefore too one-sided.
Given our current economic crisis and the failures of
regulation and enforcement that led to that crisis, that bias
is particularly troubling. Congress can, and will, enact a
dramatically improved regulatory system. The President can, and
will, make sure that relevant enforcement agencies are
populated with smart, motivated, and effective agents.
But a Supreme Court, resistant to Federal Government
involvement in the regulation of markets, could undermine those
efforts. A judge or a court has to call the game the same way
for all sides. Fundamental fairness requires that, in the
courtroom, everyone comes to the plate with the same count of
no balls and no strikes.
One of the aspirations of the American judicial system is
that it is a place where the powerless have a chance for
justice on a level playing field with the powerful. We need
Justices on the Supreme Court who not only understand that
aspiration, but also are committed to making it a reality.
Because of the importance of businesses cases before the
Supreme Court, I plan to spend some time asking you about your
experience as a commercial litigator, your handling of business
cases as a trial judge and on the Court of Appeals, and your
approach to business cases generally. From what I've seen of
your record, you seem to recall these cases right down the
middle without any bias or agenda. That is very important to
me.
Very soon, those of us up here will be done talking and you
will have the chance to testify and answer our questions. I
look forward to your testimony. Thank you.
Chairman Leahy. Thank you. Thank you very much, Mr.
Kaufman.
Another former Chairman of this Committee, Senator Specter.
I yield to you.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
I join my colleagues, Judge Sotomayor, in welcoming you and
your family here. I compliment the President for nominating an
Hispanic woman. I think it was wrong for America to wait until
1967 to have an African-American, Justice Thurgood Marshall, on
the court, waited too long, until 1981, to have the first
woman, Justice Sandra Day O'Connor. I think, as a diverse
Nation, diversity is very, very important.
You bring excellent credentials academically,
professionally, your service on the court. The Constitution
requires the process for this Committee, and then the full
Senate, to consider in detail your qualifications under our
consent function. Most of the questions which will be asked of
you in the course of these hearings will involve decided cases.
I intend to ask about decided cases, but also about cases that
the Supreme Court decided not to decide and on the rejection of
cases for decision. It's a big problem.
The court, I would suggest, has time for more cases. Chief
Justice Roberts noted in his confirmation hearing that the
decision in more cases would be very helpful. If you contrast
the docket of the Supreme Court in 1886 with currently, in 1886
there were 1,396 on the docket, 451 were decided. A century
later, there were only 161 signed opinions; in 2007, there were
only 67 signed opinions.
I start on the cases which are not decided, although I
could start in many, many areas. I could start with the Circuit
splits, where one Court of Appeals in one section of the
country goes one way, another Court of Appeals goes the other
way. The rest of the courts don't know which way the precedents
are, and the Supreme Court decides not to decide.
But take the case of the Terrorist Surveillance Program,
which was President Bush's secret warrantless wire taps, and
contrast it with congressional authority exercised under
Article I on the Foreign Intelligence Surveillance Act,
providing the exclusive way to have wire taps, perhaps the
sharpest conflict in the history of this great country on the
Article I powers of Congress and the Article II powers of the
President as Commander-in-Chief.
The Federal District Court in Detroit said that the
Terrorist Surveillance Program was unconstitutional. The Sixth
Circuit decided 2:1 that the plaintiffs did not have standing.
I thought the dissenting opinion was much stronger than the
majority opinion. Standing, as we all know, is a very flexible
doctrine, and candidly, at least as I see it, used frequently
by the court to avoid deciding a case.
Then the Supreme Court of the United States denied
certiorari and decided not to hear the case, didn't even decide
whether the lack of standing was a justifiable basis. This has
led to great confusion in the law. And it's as current as this
morning's newspapers reporting about other secret programs
which apparently the President had in operation. Had the
Supreme Court of the United States taken up the Terrorist
Surveillance Program, the court could have ruled on whether it
was appropriate for the President not to notify the Chairman of
the Judiciary Committee about the program.
We have a law which says all members of the Intelligence
Committees are to be notified. Well, the President didn't
follow that law. Did he have the right to do so under Article
II powers? Well, we don't know. Or within the last two weeks,
the Supreme Court denied hearing a case involving claims by
families of victims of
9/11 against Saudi Arabia and Saudi Arabia commissions, and for
princes in Saudi Arabia.
The Congress decided what sovereign immunity was in
legislation in 1976 and had exclusions for torts, but the
Supreme Court denied an opportunity for those families who had
suffered grievously from having their day in court. One of the
questions, when my opportunity arises, will be to ask you what
would be the standards that you would employ in deciding what
cases the Supreme Court would hear.
There is currently a major matter at issue on the Voting
Rights Act, and the conflict has been present for many years,
between the authority of Congress to decide what is the factual
basis for legislation, a standard which Justice Harlan decided
in the Wirtz case was a rational basis. The Supreme Court, more
recently, has adopted a standard of congruently--congruence and
proportionality, a standard which Justice Scalia has said is a
``flabby test'' which invites judicial lawmaking.
You'll hear a lot about--in this hearing about a judge's
responsibility to interpret the law and the statutes and not to
make laws. And during the confirmation hearing of Chief Justice
Roberts, he said in pretty plain terms that the court ought to
allow the Congress to decide what the factual basis is, and for
the court to do otherwise is to engage in judicial legislation.
The Voting Rights case was decided on narrow grounds, but
it certainly looks, if you read the record, that the court is
about ready to upset the Voting Rights case just like it did in
Alabama v. Garrett on the Americans With Disabilities Act,
notwithstanding a vast record establishing the basis.
So I would like to know what your standard will be, if
confirmed, a rational basis which had been the traditional
standard, or congruence and proportionality? If you tell me
congruence and proportionality, then I'll ask you what it means
because it slips and slides around so much that it's impossible
to tell what a constitutional standard is. We Senators would
like to know what the standards are so we know what to do when
we undertake legislation.
Your decision on the District--on the Circuit Court, in a
case captioned Entergy Corporation v. Riverkeeper, Inc.
involving the Environmental Protection Agency and the Clean
Water Act, has a special prominence now that we are debating
climate control and global warming. In the Second Circuit
opinion, you were in the majority, deciding that it was the
``best technology''.
The Supreme Court reversed, 5:4, saying that it turned on a
``cost-benefit analysis''. It, I think, is worthy of
exploration, although what you answer, obviously, is a matter
of your discretion as to whether, on a 5:4 decision--it's hard
to say who's really right, the 5 or the 4, as a matter of
interpreting the Constitution or the statute.
Having a different view, I'd be interested to know if you'd
care to respond, when the time comes, as to whether you'd be
with what had been the minority, and perhaps a voice as strong
as yours in the conference room would produce a different
result. It could have a real impact on what we're legislating
now on cap and trade.
With the few seconds I have left, I'd like to preview some
questions on televising the court. I don't know why there's so
much interest here today. I haven't counted this many cameras
since Justice Alito was sitting where you're sitting. You've
had experience in the District Court with television. You're
replacing Justice Souter, who said that if TV cameras were to
come to court they'd have to roll over his dead body. If you're
confirmed, they won't have to roll over his dead body.
[Laughter].
Senator Specter. But the court decides all the cutting-edge
questions of the day. The Senate is televised, the House is
televised. A lot of people are fascinated by this hearing. I'd
like to see the court televised; you can guess that.
Thank you very much, Judge Sotomayor.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter.
I understand, the next statement will be by Senator
Franken, and then we'll call forward the two people who are
going to introduce you, and you, then, Judge, have a chance to
say something.
Senator Franken has been waiting patiently all day, and I
appreciate having you here. Please go ahead.
STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF
MINNESOTA
Senator Franken. Thank you, Mr. Chairman. It's an
incredible honor to be here, less than week into my term as a
United States Senator. My first major responsibility is here at
this historic confirmation hearing.
I am truly humbled to join the Judiciary Committee, which
has played, and will continue to play, such an important role
in overseeing our Nation's system of justice. Chairman Leahy,
for several years now, I have admired your strength and
integrity in leading this Committee. I am grateful for your
warm welcome and the consideration that you've given me, sir,
and I am honored to serve alongside of you.
Ranking Member Sessions, I want you to know that I plan to
follow the example of my good friend and predecessor, Paul
Wellstone, who was willing and ready to partner with his
colleagues across the aisle to do the work of the American
people. I look forward to working over the years with you and
my other Republican colleagues in the Senate to improve the
lives of all Americans.
To all the members of this Committee, I know that I have a
lot to learn from each of you. Like so many private citizens, I
have watched at least part of each and every Supreme Court
confirmation hearing since they've been televised. And I would
note that this is the first confirmation hearing that Senator
Kennedy has not attended since 1965.
[Interruption from the audience.]
Chairman Leahy. The Senate will suspend. Officers, please
remove whoever is causing the disturbance.
Again, as Senator Sessions and I have said, this is a
meeting of the United States Senate. We'll show respect to
everybody who is here.
[Interruption from the audience.]
Chairman Leahy. We'll show respect to everybody here, and
certainly to Judge Sotomayor, to the Senators on both sides of
the aisle, and we will have order in this room.
Senator Sessions. Thank you, Senator Leahy.
Chairman Leahy. Thank you.
Senator Franken, please continue.
Senator Franken. Thank you, Mr. Chairman.
What I was saying was, this is the first hearing since 1965
that Senator Kennedy has not been present, and I know he's off
the Committee now, but we do miss his presence. These televised
hearings over the years have taught Americans a lot about our
Constitution and the role that the courts play in upholding and
defending it. I look forward to listening to all of your
questions and the issues that you and your constituents care
about.
To Judge Sotomayor, welcome. Over the next few days I
expect to learn from you as well. As has been said, you're the
most experienced nominee to the Supreme Court in 100 years.
After meeting you in my office last week, I know that you're
not just an outstanding jurist, but an exceptional individual.
And as others have said, your story is inspirational and one
which all Americans should take great pride in, and I welcome
your family as well.
As most of you know, this is my fifth day in office. That
may mean I'm the most junior Senator, but it also means that I
am the Senator who most recently took the oath of office. Last
Tuesday, I swore to support and defend the Constitution of the
United States and to bear true faith and allegiance to it. I
take this oath very seriously as we consider your nomination,
Judge Sotomayor.
I may not be a lawyer, but neither are the overwhelming
majority of Americans. Yet all of us, regardless of our
backgrounds and professions, have a huge stake in who sits on
the Supreme Court, and we are profoundly affected by its
decisions.
I hope to use my time over the next few days to raise
issues that concern the people of Minnesota, and the people of
this Nation. This hearing will helps folks sitting in living
rooms and offices in Winona, Duluth, and the Twin Cities to get
a better idea of what the court is, what it does, and what it's
supposed to do, and most importantly, how it affects the
everyday lives of all Americans.
Justice Souter, whom you will replace if you are confirmed,
once said, ``The first lesson, simple as it is, is that
whatever court we're in, whatever we're doing, at the end of
our task some human being is going to be affected, some human
life is going to be changed by what we do, and so we had better
use every power of our minds and our hearts and our beings to
get those rulings right.'' I believe Justice Souter had it
right.
In the past months, I have spent a lot of time thinking
about the court's impact on the lives of Americans, and reading
and consulting with some of Minnesota's top legal minds. And I
believe that the rights of Americans as citizens and voters are
facing challenges on two separate fronts.
First, I believe that the position of the Congress, with
respect to the courts and the executive, is in jeopardy. Even
before I aspired to represent the people of Minnesota in the
United States Senate, I believed that the framers made Congress
the first branch of government for a reason. It answers most
directly to the people and has the legitimacy to speak for the
people in crafting laws to be carried out by the executive
branch.
I am wary of judicial activism and I believe in judicial
restraint. Except under the most exceptional circumstances, the
judicial branch is designed to show deep deference to the
Congress and not make policy by itself. Yet, looking at recent
decisions on voting rights, campaign finance reform, and a
number of other topics, it appears that appropriate deference
may not have been shown in the past few years and there are
ominous signs that judicial activism is on the rise in these
areas.
I agree with Senator Feingold and with Senator Whitehouse.
We hear a lot about judicial activism when politicians are
running for office and when they talk about what kind of judge
they want on the Supreme Court, but it seems that their
definition of an activist judge is one who votes differently
than they would like. For example, during the Rehnquist court,
Justice Clarence Thomas voted to overturn Federal laws more
than Justice Stevens and Justice Breyer combined.
Second, I am concerned that Americans are facing new
barriers to defending their individual rights. The Supreme
Court is the last court in the land where an individual is
promised a level playing field and can seek to right a wrong:
it is the last place an employee can go if he or she is
discriminated against because of age, or gender, or color; it
is the last place a small business owner can go to ensure free
and fair competition in the market; it is the last place an
investor can go to try to recover losses from security fraud;
it is the last place a person can go to protect the free flow
of information on the Internet; it is the last place a citizen
can go to protect his or her vote; it is the last place where a
woman can go to protect her reproductive health and rights.
Yet, from what I see on each of those fronts, for each of
those rights, the past decade has made it a little bit harder
for American citizens to defend themselves. As I said before,
Judge, I'm here to learn from you. I want to learn what you
think is the proper relationship between Congress and the
courts, between Congress and the executive, I want to learn how
you go about weighing the rights of the individual, the small
consumer or business owner and more powerful interests, and I
want to hear your views on judicial restraint and activism in
the context of important issues like voting rights, open access
to the Internet, and campaign finance reform. We're going to
have a lot more time together, so I'm just going to start
listening.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very, very much, Senator Franken.
What we're going to do, we're going to move a couple of
chairs. Just stay there, please, Judge. We're going to have two
people who will speak, each for five minutes, to introduce you.
I will then administer the oath of the Committee to you.
[Laughter].
Chairman Leahy. How about that? I'll administer the oath
before the Committee and then we will hear your testimony.
So, going as we do by seniority, Senator Schumer, you are
recognized for five minutes, and then Senator Gillibrand, you
are recognized for five minutes.
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK, PRESENTING SONIA SOTOMAYOR, NOMINEE TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Senator Schumer. Thank you, Mr. Chairman.
Today is a great national opportunity. It's an opportunity
to recognize that the nomination of one of the most qualified
candidates to the Supreme Court in American history could not
have happened anywhere else in the world.
Judge Sotomayor's story is a great American story and, I
might add, a great New York story as well. Consider this: in no
other country in the world could a woman from a minority group
who grew up in a working-class family have received an
education at the best institutions, and having thrived there,
gone on to be a judge, and now a nominee to the highest court
in the land.
This is because we don't have a caste system in this
country, or even a class system. Two hundred fifty years ago,
we threw away the centuries-old framework of gentry and
nobility. We started fresh, with no ranks and no titles. Less
than four score and seven years later, a farmer and self-taught
lawyer from Illinois became, perhaps, our greatest President.
And so the American story goes, and Judge Sonia Sotomayor from
the Bronx, daughter of a single-parent practical nurse, has
written her own chapter in it.
Judge Sotomayor embodies what we all strive for as American
citizens. Her life and her career are not about race, or class,
or gender, although, as for all of us, these are important
parts of who she is. Her story is about how race and class, at
the end of the day, are not supposed to predetermine anything
in America. What matters is hard work and education, and those
things will pay off no matter who you are or where you have
come from. It's exactly what each of us wants for ourselves and
for our children, and this shared vision is why this moment is
historic for all Americans.
Judge Sotomayor was born to parents who moved to New York
from Puerto Rico during World War II. Her father was a factory
worker with a third grade education; he died when she was nine.
Her mother worked and raised Sotomayor and her brother, Juan,
now a doctor practicing in Syracuse, on her own.
Sonia Sotomayor graduated first in her high school class at
Cardinal Spellman High School in 1971. She has returned to
Cardinal Spellman to speak there and to encourage future alumni
to work hard, get an education, and pursue their dreams the
same way she did. When Sonia Sotomayor was growing up, the
Nancy Drew stories inspired her sense of adventure, developed
her sense of justice, and showed her that women could, and
should, be outspoken and bold. Now in 2009, there are many more
role models for a young Cardinal Spellman student to choose
from, with Judge Sotomayor foremost among them.
Judge Sotomayor went on to employ her enormous talents at
Princeton, where she graduated summa cum laude, and received
the Pyne Prize, the highest honor bestowed on a Princeton
student. This is an award that is given not just to the
smartest student in the class, but to the most exceptionally
smart student who has also given the most to her community. She
graduated from Yale Law School, where she was a Law Review
editor.
And because we have such an extensive judicial record
before us, I believe that these hearings will matter less than
for the several previous nominees, or at the least that these
hearings will bear out what is obvious about her, that she is
modest and humble in her approach to judging.
As we become even more familiar with her incisive mind and
balanced views, I am certain that this hearing will prove to
all what is already clear to many. This is a moment in which
all Americans can take great pride, not just New Yorkers, not
just Puerto Ricans, not just Hispanics, not just women, but all
Americans who believe in opportunity and who want for
themselves and their children a fair reading of the laws by a
judge who understands that while we are a Nation of
individuals, we are all governed by one law.
Mr. Chairman, people felt at the founding of America that
we were ``God's noble experiment.'' Judge Sotomayor's personal
story shows that today, more than 200 years later, we are still
God's noble experiment.
Thank you.
Chairman Leahy. Thank you, Senator Schumer.
Now, Senator Gillibrand, the other Senator from New York.
Please go ahead, Senator Gillibrand.
STATEMENT OF HON. KIRSTEN E. GILLIBRAND, A U.S. SENATOR FROM
THE STATE OF NEW YORK, PRESENTING SONIA SOTOMAYOR, NOMINEE TO
BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED
STATES
Senator Gillibrand. Thank you, Chairman Leahy, Ranking
Member Sessions, and the other distinguished members of the
Judiciary Committee, for the privilege to speak on behalf of
Judge Sonia Sotomayor.
President Obama has chosen one of the country's outstanding
legal minds with his nomination of Sonia Sotomayor to the
United States Supreme Court. As a New Yorker, I take great
pride in Judge Sotomayor's nomination, along with the rest of
my State and our delegation, including Senator Schumer and my
colleagues from the House, Congresswoman Nydia Velazquez, who
was the first person to introduce me to Judge Sotomayor and her
record, and Congressman Jose Serrano.
As a woman, I take great pride in this historic nomination.
In the words of Justice Sandra Day O'Connor, ``It took a very
long time, about 171 years, to get the first woman on the
Supreme Court,'' and I thought that we'd very likely always
have two, and eventually more. I'm very thankful for President
Obama in his recognition of the importance of women's voices on
the Nation's highest court.
Sonia Sotomayor's life and career are a study in
excellence, commitment to learning, a dedication to the law,
and the constant pursuit of the highest ideals of our country
and Constitution. Her story is also the quintessential American
and New York story: born to a Puerto Rican family, growing up
in public housing in the South Bronx, and raised with a love of
country and a deep appreciation for hard work.
Judge Sotomayor demonstrated a devotion to learning,
graduating summa cum laude from Princeton, and serving as an
editor on the Yale Law Journal before pursuing her career in
the law. The breadth and depth of Judge Sotomayor's experience
make her uniquely qualified for the Supreme Court.
Judge Sotomayor's keen understanding of case law and the
importance of precedent is derived from working in nearly every
aspect of our legal system: as a prosecutor, as a corporate
litigator, as a trial judge, and as an appellate judge.
As prosecutor, Judge Sotomayor fought the worst of
society's ills, prosecuting a litany of crimes from murder, to
child pornography, to drug trafficking. The Manhattan D.A., Bob
Morgenthau, described her as ``fearless'' and ``an effective
prosecutor'' and ``an able champion of the law''.
Judge Sotomayor's years as a corporate litigator exposed
her to all facets of commercial law, including real estate,
employment, banking, contracts, and agency law. Judge Sotomayor
was appointed to the U.S. District Court for the Southern
District of New York by President George Herbert Walker Bush,
presiding over roughly 450 cases and earning a reputation as a
tough, fair-minded, and thoughtful jurist. She would replace
Justice Souter as the only member on the Supreme Court with
trial experience.
At the appellate level, Judge Sotomayor has participated in
over 3,000 panel decisions, offering roughly 400 published
opinions, with only 7 being brought up to the Supreme Court,
which reversed only 3 of those decisions, two of which were
closely divided. With confirmation, Judge Sotomayor brings more
Federal judicial experience to the Supreme Court than any
Justice in 100 years, and more judicial experience than any
Justice confirmed in the court in 70 years.
As a testament to Judge Sotomayor, many independent
national, legal, and law enforcement groups have already
endorsed her nomination, including among them the ABA, voting
unanimously and giving her the highest rating of ``Well
Qualified'', complimenting not only her formidable intellect,
but her mature legal mind and her record of deciding cases
based on the precise facts and legal issues before her, also
faithful in following the law as it exists, and that she has a
healthy respect for the limited role of judges and the balance
of powers for the executive and legislative branches. The
President of the Fraternal Order of Police also stated, ``She's
a model jurist: tough, fair-minded, and mindful of the
constitutional protections afforded to all U.S. citizens.''
A nominee's experience as a legal advocate for civil rights
certainly must not be seen as a disqualifying criteria for
confirmation, but instead as the hallmark of an individual's
commitment to our founding principles of equality, justice, and
freedom. Like Ruth Bader Ginsburg's participation in the ACLU
Women's Rights Project or Thurgood Marshall's participation on
behalf of the NAACP Legal Defense and Education Fund, Judge
Sotomayor's leadership role in the Puerto Rican Legal Defense
Fund demonstrates her commitment to the Constitution,
constitutional rights and core values of equality as being an
inalienable right, an inalienable American right, and should
not be ascribed based on gender or color.
Judge Sotomayor's entire breadth of experience uniquely
informs her ability to discern facts as she applies the law and
follows precedent. Judge Sotomayor's commitment to the
Constitution is unyielding. As she described her judicial
philosophy, saying, ``I don't believe we should bend the
Constitution under any circumstance. It says what it says; we
should do honor to it.'' Judge Sotomayor's record on the Second
Circuit demonstrates the paramount importance of this
conviction.
The importance of Sonia Sotomayor's professional and
personal story cannot be understated. Many of our most esteemed
justices have noted the importance of their own diverse
backgrounds and life experiences in being an effective Justice.
Like Judge Sotomayor, they also understand that their gender or
ethnicity is not a determining factor in their judicial
rulings, but another asset which they bring to the court, much
like education, training, and previous legal work.
Justice Anthony Scalia said, ``I am the product of the
melting pot in New York, grew up with people of all religious
and ethnic backgrounds. I have absolutely no racial prejudices,
and I think I am probably at least as antagonistic as the
average American, and probably much more so, towards racial
discrimination.''
Justice Clarence Thomas said, ``My journey has been one
that required me to at some point touch on virtually every
aspect, every level of our country, from people who couldn't
read and write to people who were extremely literate and--''
Chairman Leahy. Senator? Senator, we're going to have to
put your full statement in the record so that Judge Sotomayor
can be heard.
Senator Gillibrand. May I conclude my remarks?
Chairman Leahy. If it can be done in the next few seconds,
Senator.
Senator Gillibrand. One minute?
Chairman Leahy. Well, how about----
Senator Gillibrand. Twenty seconds.
I strongly support Judge Sotomayor's nomination and firmly
believe her to be one of the finest jurists in American
history.
Chairman Leahy. Thank you.
Judge, now we will administer the oath. I'll let the two
Senators step back if they'd like. Please raise your right
hand.
Do you swear that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth so help you God?
Judge Sotomayor. I do.
Chairman Leahy. Thank you. Please be seated.
And I thank my two colleagues from New York for the
introduction. I appreciate it because I know both have known
you for some time. Judge, you've also introduced a number of
members of your family. Now the floor is yours.
STATEMENT OF HON. SONIA SOTOMAYOR, NOMINATED TO BE AN ASSOCIATE
JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
Judge Sotomayor. Thank you, Mr. Chairman.
I also want to thank Senators Schumer and Gillibrand for
their kind introductions.
In recent weeks, I have had the privilege and pleasure of
meeting 89 Senators, including all of the members of this
Committee. Each of you has been gracious to me, and I have so
much enjoyed meeting you. Our meetings have given me an
illuminating tour of the 50 States and invaluable insights into
the American people.
There are countless family members and friends who have
done so much over the years to make this day possible. I am
deeply appreciative for their love and support. I want to make
one special note of thanks to my mother. I am here, as many of
you have noted, because of her aspirations and sacrifices for
both my brother Juan and me.
I am very grateful to the President, and humbled to be here
today as a nominee to the United States Supreme Court.
The progression of my life has been uniquely American. My
parents left Puerto Rico during World War II. I grew up in
modest circumstances in a Bronx housing project. My father, a
factory worker with a third grade education, passed away when I
was nine years old. On her own, my mother raised my brother and
me. She taught us that the key to success in America is a good
education and she set the example, studying alongside my
brother and me at our kitchen table so that she could become a
registered nurse.
We worked hard. I poured myself into my studies at Cardinal
Spellman High School, earning scholarships to Princeton
University and then Yale Law School, while my brother went on
to medical school.
Our achievements are due to the values that we learned as
children and they have continued to guide my life's endeavors.
I try to pass on this legacy by serving as a mentor and friend
to my many godchildren and to students of all backgrounds.
Over the past three decades, I have seen our judicial
system from a number of different perspectives: as a big-city
prosecutor, as a corporate litigator, as a trial judge, and as
an appellate judge. My first job after law school was as an
Assistant District Attorney in New York. There, I saw children
exploited and abused. I felt the pain and suffering of families
torn apart by the needless death of loved ones. I saw and
learned the tough job law enforcement has in protecting the
public.
In my next legal job, I focused on commercial, instead of
criminal, matters. I litigated issues on behalf of national and
international businesses and advised them on matters ranging
from contracts to trademarks.
My career as an advocate ended and my career as a judge
began when I was appointed by President George H.W. Bush to the
United States District Court for the Southern District of New
York. As a trial judge, I did decide over 450 cases and
presided over dozens of trials, with perhaps my most famous
case being the major league baseball strike in 1995.
After six extraordinary years on the District Court, I was
appointed by President Clinton to the United States Court of
Appeals for the Second Circuit. On that court I have enjoyed
the benefit of sharing ideas and perspectives with wonderful
colleagues as we have worked together to resolve the issues
before us. I have now served as an appellate judge for over a
decade, deciding a wide range of constitutional, statutory, and
other legal questions.
Throughout my 17 years on the bench, I have witnessed the
human consequences of my decisions. Those decisions have not
been made to serve the interests of any one litigant, but
always to serve the larger interests of impartial justice.
In the past month, many Senators have asked me about my
judicial philosophy. Simple: fidelity to the law. The task of a
judge is not to make law, it is to apply the law. And it is
clear, I believe, that my record in two courts reflects my
rigorous commitment to interpreting the Constitution according
to its terms, interpreting statutes according to their terms
and Congress' intent, and hewing faithfully to precedents
established by the Supreme Court and by my Circuit Court.
In each case I have heard, I have applied the law to the
facts at hand. The process of judging is enhanced when the
arguments and concerns of the parties to the litigation are
understood and acknowledged. That is why I generally structure
my opinions by setting out what the law requires and then
explaining why a contrary position, sympathetic or not, is
accepted or rejected.
That is how I seek to strengthen both the rule of law and
faith in the impartiality of our judicial system. My personal
and professional experiences help me to listen and understand,
with the law always commanding the result in every case.
Since President Obama announced my nomination in May, I
have received letters from people all over this country. Many
tell a unique story of hope in spite of struggles. Each letter
has deeply touched me. Each reflects a dream, a belief in the
dream that led my parents to come to New York all those years
ago. It is our Constitution that makes that dream possible and
I now seek the honor of upholding the Constitution as a Justice
on the Supreme Court.
Senators, I look forward, in the next few days, to
answering your questions, to having the American people learn
more about me, and to being part of a process that reflects the
greatness of our Constitution and of our Nation.
Thank you all.
Chairman Leahy. Thank you, Judge.
I thank all Senators for their opening statements this
morning. I thank Senator Schumer and Senator Gillibrand for
their introduction of you, but especially, Judge Sotomayor, I
thank you for your statement. I look at the faces of your
family; they appreciate it. We all do.
We will stand in recess until 9:30 tomorrow morning.
Thank you very, very much.
[Whereupon, at 3:04 p.m., the Committee was adjourned, to
reconvene at 9:30 a.m., Tuesday, July 14, 2009.]
CONTINUATION OF THE NOMINATION OF HON. SONIA SOTOMAYOR, TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
TUESDAY, JULY 14, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:29 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman,
Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham,
Cornyn, and Coburn.
Chairman Leahy. Good morning, everybody.
Just so we can understand what is going on, I am not sure
whether we have votes or not today. If we do have votes, to the
extent that we can keep the hearing going during votes and have
different Senators leave between them, we will. If we can't,
then I will recess for those votes.
With the way the traffic was today, I think some people are
still having trouble getting in here. I have talked with
Senator Sessions about this, and what we are going to do is
have 30-minute rounds. We will go back and forth between sides,
and Senators will be recognized based on seniority if they are
there. If not, then we will go to the next person.
And with that, as I said yesterday when we concluded, the
American people finally have heard from Judge Sotomayor, and I
appreciate your opening statement yesterday. You have had weeks
of silence. You have followed the traditional way of nominees.
I think you have visited more Senators than any nominee I know
of for just about any position, but we get used to the
tradition of the press is outside, questions are asked, you
give a nice wave, and keep going. But finally you are able to
speak, and I think your statement yesterday went a long way to
answering the critics and the naysayers. And so we are going to
start with the questions here.
I would hope that everybody will keep their questions
pertaining to you and to your background as a judge. You are
going to be the first Supreme Court nominee in more than 50
years who served as a Federal trial court judge, the first in
50 years to have served as both a Federal trial court judge and
a Federal appellate court judge.
Let me ask you the obvious one. What are the qualities that
a judge should possess? You have had time on both the trial
court and the appellate court. What qualities should a judge
have, and how has that experience you have had, how does that
shape your approach to being on the bench?
STATEMENT OF HON. SONIA SOTOMAYOR, TO BE AN ASSOCIATE JUSTICE
OF THE SUPREME COURT OF THE UNITED STATES
Judge Sotomayor. Senator Leahy, yesterday many of the
Senators emphasized their--the values they thought were
important for judging, and central to many of their comments
was the fact that a judge had to come to the process
understanding the importance and respect the Constitution must
receive in the judging process and an understanding that that
respect is guided by and should be guided by a full
appreciation of the limited jurisdiction of the Court in our
system of Government, but understanding its importance as well.
That is the central part of judging.
What my experience on the trial court and the appellate
court have reinforced for me is that the process of judging is
a process of keeping an open mind. It's the process of not
coming to a decision with a prejudgment ever of an outcome, and
that reaching a conclusion has to start with understanding what
the parties are arguing, but examining in all situations
carefully the facts as they prove them or not prove them, the
record as they create it, and then making a decision that is
limited to what the law says on the facts before the judge.
Chairman Leahy. Let us go into some of the particulars. One
of the things that I found appealing in your record is that you
were a prosecutor, as many of us--both the Ranking Member and I
had the privilege--and you worked on the front lines as
assistant district attorney in the Manhattan DA's office. Your
former boss, District Attorney Robert Morgenthau, the dean of
the American prosecutors, said one of the most important cases
you worked on was the prosecution of the man known as ``the
Tarzan burglar.'' He terrorized people in Harlem. He would
swing on ropes into their apartments and rob them and steal and
actually killed three people.
Your co-counsel, Hugh Mo, described how you threw yourself
into every aspect of the investigation and the prosecution of
the case. You helped to secure a conviction, a sentence of 62
years to life for the murders. Your co-counsel described you as
``a skilled legal practitioner who not only ruthlessly pursued
justice for victims of violent crimes, but understood the root
causes of crime and how to curb it.''
Did that experience shape your views in any way, as a
lawyer and also as a judge? This case was getting into about as
nitty-gritty as you could into the whole area of criminal law.
Judge Sotomayor. I became a lawyer in the prosecutor's
office. To this day, I owe who I have become as--who I became
as a lawyer and who I have become as judge to Mr. Morgenthau.
He gave me a privilege and honor in working in his office that
has shaped my life.
When I say I became a lawyer in his office, it's because in
law school, law schools teach you in hypotheticals. They set
forth facts for you. They give you a little bit of teaching on
how those facts are developed, but not a whole lot. And then
they ask you to opine about legal theory and apply legal theory
to the facts before you.
Well, when you work in a prosecutor's office, you
understand that the law is not legal theory. It's facts. It's
what witnesses say and don't say. It's how you develop your
position in the record. And then it's taking those facts and
making arguments based on the law as it exists. That's what I
took with me as a trial judge. It's what I take with me as an
appellate judge. It is respect that each case gets decided case
by case, applying the law as it exists to the facts before you.
You asked me a second question about the Tarzan murderer
case, and that case brought to life for me, in a way that
perhaps no other case had fully done before, the tragic
consequences of needless death. In that case, Mr. Maddicks was
dubbed ``the Tarzan murderer'' by the press because he used
acrobatic feats to gain entry into apartments. In one case, he
took a rope, placed it on a pipe on top of a roof, put a paint
can at the other end, and threw it into a window in a building
below, and broke the window. He then swung himself into the
apartment and on the other side shot a person he found. He did
that repeatedly, and as a result, he destroyed families.
I saw a family that had been intact with a mother living
with three of her children, some grandchildren. They all worked
at various jobs. Some were going to school. They stood as they
watched one of their--the mother stood as she watched one of
her children be struck by a bullet that Mr. Maddicks fired and
killed him because the bullet struck the middle of his head.
That family was destroyed. They scattered to the four winds,
and only one brother remained in New York who could testify.
That case taught me that prosecutors, as all participants
in the justice system, must be sensitive to the price that
crime imposes on our entire society.
At the same time, as a prosecutor in that case, I had to
consider how to ensure that the presentation of that case would
be fully understood by jurors, and to do that it was important
for us as prosecutors to be able to present those number of
incidences that Mr. Maddicks had engaged in, in one trial so
the full extent of his conduct could be determined by a jury.
There had never been a case quite like that where an
individual who used different acrobatic feats to gain entry
into an apartment was tried with all of his crimes in one
indictment. I researched very carefully the law and found a
theory in New York law, called the ``Molineaux theory'' then,
that basically said if you can show a pattern that established
a person's identity or assisted in establishing a person's
identity--I'm simplifying the argument, by the way--then you
can try different cases together. This was not a conspiracy
under law because Mr. Maddicks acted alone, so I had to find a
different theory to bring all his acts together.
Well, I presented that to the trial judge. It was a
different application of the law. But what I did was draw on
the principles of the Molineaux theory, and arguing those
principles to the judge, the judge permitted that joint trial
of all of Mr. Maddicks' activities.
In the end, carefully developing the facts in the case,
making my record--our record, I should say--Mr. Mo's and my
record complete, we convinced the judge that our theory was
supported by law. That harkens back to my earlier answer, which
is that's what being a trial judge teaches you.
Chairman Leahy. So you see it from both ends, having
obviously a novel theory as a prosecutor--a theory that is now
well established in the law--but was novel at that time, and as
a trial judge, you have seen novel theories brought in by
prosecutors or by defense, and you have to make your decisions
based on those theories. The fairly easy answer to that is you
do see it from both ends, do you not?
Judge Sotomayor. Well, it's important to remember that as a
judge, I don't make law, and so the task for me as a judge is
not to accept or not accept new theories. It's to decide
whether the law as it exists has principles that apply to new
situations.
Chairman Leahy. Well, let's go into that, because obviously
the Tarzan case was a unique case, and as I said, Mr.
Morgenthau singled that out as an example of the kind of lawyer
you are. And I find compelling your story about being in the
apartment. I have stood in homes at 3 o'clock in the morning as
they are carrying the body out from a murder. I can understand
how you are feeling.
But in applying the law and applying the facts, you told me
once that ultimately and completely the law is what controls,
and I was struck by that when you did. And so there has been a
great deal of talk about the Ricci case, Ricci v. DeStefano,
and you and two other judges were reversed in this appeal
involving firefighters in New Haven. The plaintiffs were
challenging the city's decision to voluntarily discard the
result of a paper-and-pencil test to measure leadership
abilities.
Now, the legal issue that was presented to you in that case
was not a new one--not in your circuit. In fact, there was a
unanimous, decades-old Supreme Court decision as well. In
addition, in 1991, Congress acted to reinforce that
understanding of the law. I might note that every Republican
member of this Committee still serving in the Senate supported
that statement of the law. So you had a binding precedent. You
and two other judges came to a unanimous decision. Your
decision deferred to the district court's ruling allowing the
city's voluntary determination that it could not justify using
that paper-and-pencil test under our civil rights laws, you say
it was settled judicial precedent. A majority of the Second
Circuit later voted not to revisit the panel's unanimous
decision; therefore, they upheld your decision.
So you had Supreme Court precedent. You had your circuit
precedent. You were upheld within the circuit. Subsequently, it
went to the Supreme Court, and five, a bare majority of five
Justices reversed the decision, reversed their precedent, and
many have said that they created a new interpretation of the
law.
Ironically, if you had done something other than followed
the precedent, some would be now attacking you as being an
activist. You followed the precedent, so now they attack you as
being biased and racist. It is kind of a unique thing. You are
damned if you do and damned if you don't.
How do you react to the Supreme Court's decision in the New
Haven firefighters case?
Judge Sotomayor. You are correct, Senator, that the panel,
made up of myself and two other judges, in the Second Circuit
decided that case on the basis of a very thorough, 78-page
decision by the district court and on the basis of established
precedent.
The issue was not what we would do or not do, because we
were following precedent, and you--we're now on the circuit
court--are obligated on a panel to follow established circuit
precedent.
The issue in Ricci was what the city did or could do when
it was presented with a challenge to one of its tests that--for
promotion. This was not a quota case. This was not an
affirmative action case. This was a challenge to a test that
everybody agreed had a very wide difference between the pass
rate of a variety of different groups.
The city was faced with the possibility, recognized in law,
that the employees who were disparately impacted--that's the
terminology used in the law, and that is a part of the civil
rights amendment that you were talking about in 1991--that
those employees who could show a disparate impact, a
disproportionate pass rate, that they could bring a suit, and
that then the employer had to defend the test that it gave.
The city here, after a number of days of hearings and a
variety of different witnesses, decided that it wouldn't
certify the test, and it wouldn't certify it in an attempt to
determine whether they could develop a test that was of equal
value in measuring qualifications, but which didn't have a
disparate impact.
And so the question before the panel was: Was the decision
of the city based on race or based on its understanding of what
the law required it to do? Given Second Circuit precedent,
Bushey v. New York State Civil Services Commission, the panel
concluded that the city's decision in that particular situation
was lawful under established law.
The Supreme Court, in looking and reviewing that case,
applied a new standard. In fact, it announced that it was
applying a standard from a different area of law, and
explaining to employers and the courts below how to look at
this question in the future.
Chairman Leahy. But when you were deciding it, you had
precedent from the Supreme Court and from your circuit that
basically determined the outcome you had to come up with. Is
that correct?
Judge Sotomayor. Absolutely.
Chairman Leahy. And if today, now that the Supreme Court
has changed their decision, without you having to relitigate
the case, it would lay open, obviously, a different result.
Certainly the circuit would be bound by the new decision. Even
though it is only a 5-4 decision, a circuit would be bound by
the new decision of the Supreme Court. Is that correct?
Judge Sotomayor. Absolutely, sir.
Chairman Leahy. Thank you.
Judge Sotomayor. That is now the statement of the Supreme
Court of how employers and the Court should examine this issue.
Chairman Leahy. During the course of this nomination, there
have been some unfortunate comments, including outrageous
charges of racism, made about you on radio and television. One
person referred to you as being ``the equivalent of the head of
the Ku Klux Klan.'' Another leader in the other party referred
to you as being ``a bigot.'' And to the credit of the Senators,
the Republican Senators as well as Democratic Senators, they
have not repeated those charges.
But you have not been able to respond to any of these
things. You have had to be quiet. Your critics have taken a
line out of your speeches and twisted it, in my view, to mean
something you never intended.
You said that you ``would hope that a wise Latina woman
with the richness of her experiences would reach wise
decisions.'' I remember other Justices, the most recent one
Justice Alito, talking about the experience of the immigrants
in his family and how that would influence his thinking and
help him reach decisions.
And you also said in your speech that you ``love America
and value its lessons and great things could be achieved if one
works hard for it.'' And then you said, ``Judges must transcend
their personal sympathies and prejudices and aspire to achieve
a greater degree of fairness and integrity based on the reason
of law.'' And I will just throw one more quote in there--what
you told me--that ultimately and completely, the law is what
controls.
So tell us. You have heard all of these charges and
counter-charges, the wise Latina and on and on. Here is your
chance. You tell us what is going on here, Judge.
Judge Sotomayor. Thank you for giving me an opportunity to
explain my remarks. No words I have ever spoken or written have
received so much attention.
[Laughter.]
Judge Sotomayor. I gave a variant of my speech to a variety
of different groups, most often to groups of women lawyers or
to groups most particularly of young Latino lawyers and
students. As my speech made clear in one of the quotes that you
referenced, I was trying to inspire them to believe that their
life experiences would enrich the legal system, because
different life experiences and backgrounds always do. I don't
think that there is a quarrel with that in our society. I was
also trying to inspire them to believe that they could become
anything they wanted to become, just as I had.
The context of the words that I spoke have created a
misunderstanding, and I want--a misunderstanding, and to give
everyone assurances, I want to state up front unequivocally and
without doubt, I do not believe that any ethnic, racial, or
gender group has an advantage in sound judging. I do believe
that every person has an equal opportunity to be a good and
wise judge regardless of their background or life experiences.
The words that I used, I used agreeing with the sentiment
that Justice Sandra Day O'Connor was attempting to convey. I
understood that sentiment to be what I just spoke about, which
is that both men and women were equally capable of being wise
and fair judges.
That has to be what she meant, because judges disagree
about legal outcomes all of the time--or I shouldn't say ``all
of the time.'' At least in close cases they do. Justices on the
Supreme Court come to different conclusions. It can't mean that
one of them is unwise--despite the fact that some people think
that.
So her literal words couldn't have meant what they said.
She had to have meant that she was talking about the equal
value of the capacity to be fair and impartial.
Chairman Leahy. And isn't that what you, having been on the
bench for 17 years, set as your goal, to be fair and show
integrity based on the law?
Judge Sotomayor. I believe my 17-year record on the two
courts would show that in every case that I render, I first
decide what the law requires under the facts before me, and
that what I do is explained to litigants why the law requires a
result. And whether their position is sympathetic or not, I
explain why the result is commanded by law.
Chairman Leahy. And doesn't your oath of office actually
require you to do that?
Judge Sotomayor. That is the fundamental job of a judge.
Chairman Leahy. Let me talk to you about another decision,
District of Columbia v. Heller. In that case, the Supreme Court
held that the Second Amendment guarantees to Americans the
right to keep and bear arms and that it is an individual right.
I have owned firearms since my early teen years. I suspect a
large number of Vermonters do. I enjoy target shooting on a
very regular basis at our home in Vermont, so I watched that
decision rather carefully and found it interesting.
Is it safe to say that you accept the Supreme Court's
decision as establishing that the Second Amendment right is an
individual right? Is that correct?
Judge Sotomayor. Yes, sir.
Chairman Leahy. Thank you. And in the Second Circuit's
decision in Maloney v. Cuomo, you, in fact, recognize the
Supreme Court decided in Heller that the personal right to bear
arms is guaranteed by the Second Amendment of the Constitution
against Federal law restriction. Is that correct?
Judge Sotomayor. It is.
Chairman Leahy. And you accepted and applied the Heller
decision when you decided Maloney?
Judge Sotomayor. Completely, sir. I accepted and applied
established Supreme Court precedent that the Supreme Court in
its own opinion in Heller acknowledged answered a different
question.
Chairman Leahy. Well, in fact, let me refer to that,
because Justice Scalia's opinion in the Heller case expressly
left unresolved and expressly reserved as a separate question
whether the Second Amendment guarantee applies to the States
and laws adopted by the States. Earlier this year, you were on
a Second Circuit panel in a case posing that specific question,
analyzing a New York State law restriction on so-called chukka
sticks, a martial arts device.
Now, the unanimous decision of your court cited Supreme
Court precedent as binding on your decision, and the
longstanding Supreme Court cases have held that the Second
Amendment applies only to the Federal Government and not to the
States. And I notice that the panel of the Seventh Circuit,
including Judge Posner, one of the best-known, very
conservative judges, cited the same Supreme Court authority and
agreed with the Second Circuit decision.
We all know that not every constitutional right has been
applied to the States by the Supreme Court. I know that one of
my very first cases as a prosecutor was the question whether
the Fifth Amendment guaranteed a grand jury indictment has been
made applicable to the States. The Supreme Court has not held
that applicable to the States.
The Seventh Amendment right to a jury trial and the Eighth
Amendment prohibition against excessive fines also have not
been made applicable to the States.
I understand that petitions seeking to have the Supreme
Court apply the Second Amendment to the States are pending. So
obviously I am not going to ask you, if that case appears
before the Supreme Court and you are there, how you are going
to rule. But would you have an open mind on the Supreme Court
in evaluating the legal proposition whether the Second
Amendment right should be considered a fundamental right and,
thus, applicable to the States?
Judge Sotomayor. Like you, I understand how important the
right to bear arms is to many, many Americans. In fact, one of
my godchildren is a member of the NRA, and I have friends who
hunt. I understand the individual right fully that the Supreme
Court recognized in Heller.
As you pointed out, Senator, in the Heller decision the
Supreme Court was addressing a very narrow issue, which was
whether an individual right under the Second Amendment applied
to limit the Federal Government's rights to regulate the
possession of firearms. The Court expressly, Justice Scalia in
a footnote, identified that there was Supreme Court precedent
that has said that that right is not incorporated against the
States. What that term of ``incorporation'' means in the law is
that that right doesn't apply to the States in its regulation
of its relationship with its citizen.
In Supreme Court parlance, the right is not fundamental.
It's a legal term. It's not talking about the importance of the
right in a legal term. It's talking about is that right
incorporated against the States.
When Maloney came before the Second Circuit, as you
indicated, myself and two other judges read what the Supreme
Court said, saw that it had not explicitly rejected its
precedent on application to the States, and followed that
precedent, because it's the job of the Supreme Court to change
it.
Chairman Leahy. Well----
Judge Sotomayor. You asked me--I'm sorry, Senator. I didn't
mean to cut you off.
Chairman Leahy. No, no. Go ahead.
Judge Sotomayor. You asked me whether I have an open mind
on that question. Absolutely. My decision in Maloney and on any
case of this type would be to follow the precedent of the
Supreme Court when it speaks directly on an issue, and I would
not prejudge any question that came before me if I was a
Justice on the Supreme Court.
Chairman Leahy. Let me just ask--and I just asked Senator
Sessions if he minded. I want to ask one more question, and it
goes to the area of prosecution. You have heard appeals in over
800 criminal cases. You affirmed 98 percent of the convictions
for violent crimes, including terrorism cases; 99 percent of
the time at least one Republican-appointed judges of the panel
agreed with you. Let me just ask you about one, United States
v. Giordano.
That was a conviction against the mayor of Waterbury,
Connecticut. The victims in that case were the young daughter
and niece of a prostitute, young children who, as young as 9
and 11, were forced to engage in sexual acts with the
defendant. The mayor was convicted under a law passed by
Congress prohibiting the use of any facility or means of
interstate commerce to transmit contact information about a
person under 16 for the purpose of illegal sexual activity.
You spoke for the unanimous panel of the Second Circuit,
which included Judge Jacobs and Judge Hall. You upheld that
conviction against the constitutional challenge that the
Federal criminal statute in question exceeded Congress' power
under the Commerce Clause. I mention that only because I
appreciate your deference to the constitutional congressional
authority to prohibit illegal conduct.
Did you have any difficulty in reaching the conclusion you
did in the Giordano case?
Judge Sotomayor. No, sir.
Chairman Leahy. Thank you. I am glad you reached it.
And I appreciate Senator Sessions' forbearance.
Senator Sessions. It is good to have you back, Judge, and
your family and friends and supporters, and I hope we will have
a good day today. I look forward to a dialog with you.
I have got to say that I liked your statement on the
fidelity of the law yesterday and some of your comments this
morning. And I also have to say had you been saying that with
clarity over the last decade or 15 years, we would have a lot
fewer problems today, because you have evidenced, I think it is
quite clear, a philosophy of the law that suggests that a
judge's background and experiences can and should--even should
and naturally will impact their decision, which I think goes
against the American ideal and oath that a judge takes to be
fair to every party, and every day when they put on that robe,
that is a symbol that they are to put aside their personal
biases and prejudices.
So I would like to ask you a few things about it. I would
just note that it is not just one sentence, as my Chairman
suggested, that causes us difficulty. It is a body of thought
over a period of years that causes us difficulty. And I would
suggest that the quotation he gave was not exactly right of the
``wise Latina'' comment that you made. You have said, I think,
six different times, ``I would hope that a wise Latina woman
with the richness of her experiences would more often than not
reach a better conclusion . . .'' So that is a matter that I
think we will talk about as we go forward.
Let me recall that yesterday you said, ``It's simple:
fidelity to the law. The task of a judge is not to make law.
It's to apply law.'' I heartily agree with that.
However, you previously have said, ``The court of appeals
is where policy is made.'' And you said on another occasion,
``The law that lawyers practice and judges declare is not a
definitive, capital `L' law that many would like to think
exists.'' So I guess I am asking today what do you really
believe on those subjects: that there is no real law--that
judges do not make law, or that there is no real law and the
court of appeals is where policy is made? Discuss that with us,
please.
Judge Sotomayor. I believe my record of 17 years
demonstrates fully that I do believe that law--that judges must
apply the law and not make the law. Whether I've agreed with a
party or not, found them sympathetic or not, in every case I
have decided I have done what the law requires.
With respect to judges' making policy, I assume, Senator,
that you were referred to a remark that I made in a Duke law
student dialog. That remark in context made very clear that I
wasn't talking about the policy reflected in the law that
Congress makes. That's the job of Congress to decide what the
policy should be for society.
In that conversation with the students, I was focusing on
what district court judges do and what circuit court judges do,
and I noted that district court judges find the facts and they
apply the facts to the individual case. And when they do that,
their holding, their finding doesn't bind anybody else.
Appellate judges, however, establish precedent. They decide
what the law says in a particular situation. That precedent has
policy ramifications because it binds not just the litigants in
that case; it binds all litigants in similar cases, in cases
that may be influenced by that precedent.
I think if my speech is heard outside of the minute and a
half that YouTube presents and its full context examined, it is
very clear that I was talking about the policy ramifications of
precedent and never talking about appellate judges or courts
making the policy that Congress makes.
Senator Sessions. Judge, I would just say I don't think it
is that clear. I looked at that tape several times, and I think
a person could reasonably believe it meant more than that. But
yesterday you spoke about your approach to rendering opinions
and said, ``I seek to strengthen both the rule of law and faith
in the impartiality of the justice system,'' and I would agree.
But you had previously said this: ``I am willing to accept that
we who judge must not deny differences resulting from
experiences and heritage, but attempt, as the Supreme Court
suggests, continuously to judge when those opinions,
sympathies, and prejudices are appropriate.''
So, first, I would like to know, Do you think there is any
circumstance in which a judge should allow their prejudices to
impact their decision making?
Judge Sotomayor. Never their prejudices. I was talking
about the very important goal of the justice system is to
ensure that the personal biases and prejudices of a judge do
not influence the outcome of a case. What I was talking about
was the obligation of judges to examine what they're feeling as
they're adjudicating a case and to ensure that that's not
influencing the outcome.
Life experiences have to influence you. We're not robots to
listen to evidence and don't have feelings. We have to
recognize those feelings and put them aside. That's what my
speech was saying. That's our job.
Senator Sessions. But the statement was, ``I willingly
accept that we who judge must not deny the differences
resulting from experience and heritage, but continuously to
judge when those opinions, sympathies, and prejudices are
appropriate.'' That is exactly opposite of what you are saying,
is it not?
Judge Sotomayor. I don't believe so, Senator, because all I
was saying is because we have feelings and different
experiences, we can be led to believe that our experiences are
appropriate. We have to be open-minded to accept that they may
not be and that we have to judge always that we're not letting
those things determine the outcome. But there are situations in
which some experiences are important in the process of judging
because the law asks us to use those experiences.
Senator Sessions. Well, I understand that. But let me just
follow up. You say in your statement that you want to do what
you can to increase the faith in the impartiality of our
system. But isn't it true this statement suggests that you
accept that there may be sympathies, prejudices, and opinions
that legitimately influence a judge's decision? And how can
that further faith in the impartiality of the system?
Judge Sotomayor. I think the system is strengthened when
judges don't assume they're impartial but when judges test
themselves to identify when their emotions are driving a result
or their experiences are driving a result and the law is not.
Senator Sessions. I agree with that. I know one judge that
says that if he has a feeling about a case, he tells his law
clerks to, ``Watch me. I do not want my biases, sympathies, or
prejudices to influence this decision, which I have taken an
oath to make sure is impartial.''
I just am very concerned that what you are saying today is
quite inconsistent with your statement that you willingly
accept that your sympathies, opinions, and prejudices may
influence your decision making.
Judge Sotomayor. Well, as I have tried to explain, what I
try to do is to ensure that they're not. If I ignore them and
believe that I'm acting without them, without looking at them
and testing that I'm not, then I could, unconsciously or
otherwise, be led to be doing the exact thing I don't want to
do, which is to let something but the law command the result.
Senator Sessions. Well, yesterday you also said that your
decisions have always been made to serve the larger interest of
impartial justice. A good aspiration, I agree. But in the past,
you have repeatedly said this: ``I wonder whether achieving the
goal of impartiality is possible at all in even most cases, and
I wonder whether by ignoring our differences as women, men, or
people of color we do a disservice to both the law and
society.''
Aren't you saying there that you expect your background and
heritage to influence your decision making?
Judge Sotomayor. What I was speaking about in that speech
was--harkened back to what we were just talking about a few
minutes ago, which is life experiences do influence us, in good
ways. That's why we seek the enrichment of our legal system
from life experiences. That can affect what we see or how we
feel, but that's not what drives a result.
The impartiality is an understanding that the law is what
commands the result. And so to the extent that we are asking
the question--because most of my speech was an academic
discussion--about what should we be thinking about, what should
we be considering in this process, and accepting that life
experiences could make a difference, but I wasn't encouraging
the belief or attempting to encourage the belief that I thought
that that should drive the result.
Senator Sessions. Judge, I think it is consistent in the
comments I have quoted to you and your previous statements that
you do believe that your background will affect the result in
cases, and that is troubling me. So that is not impartiality.
Don't you think that is not consistent with your statement that
you believe your role as a judge is to serve the larger
interest of impartial justice?
Judge Sotomayor. No, sir. As I've indicated, my record
shows that at no point or time have I ever permitted my
personal views or sympathies to influence an outcome of a case.
In every case where I have identified a sympathy, I have
articulated it and explained to the litigant why the law
requires a different result----
Senator Sessions. Well, Judge----
Judge Sotomayor. I do not permit my sympathies, personal
views, or prejudices to influence the outcome of my cases.
Senator Sessions. Well, you said something similar to that
yesterday, that ``in each case I have applied the law to the
facts at hand.'' But you have repeatedly made this statement:
``I accept the proposition''--``I accept the proposition that a
difference there will be by the presence of women and people of
color on the bench and that my experiences affect the facts I
choose to see as a judge.''
First, that is troubling to me as a lawyer. When I present
evidence, I expect the judge to hear and see all the evidence
that gets presented. How is it appropriate for a judge ever to
say that they will choose to see some facts and not others?
Judge Sotomayor. It's not a question of choosing to see
some facts or another, Senator. I didn't intend to suggest
that, and in the wider context, what I believe I was--the point
that I was making was that our life experiences do permit us to
see some facts and understand them more easily than others. But
in the end, you are absolutely right; that's why we have
appellate judges that are more than one judge, because each of
us from our life experiences will more easily see different
perspectives argued by parties. But judges do consider all of
the arguments of litigants. I have. Most of my opinions, if not
all of them, explain to parties why the law requires what it
does.
Senator Sessions. Well, do you stand by your statement that
``My experiences affect the facts I choose to see'' ?
Judge Sotomayor. No, sir. I don't stand by the
understanding of that statement that I will ignore other facts
or other experiences because I haven't had them. I do believe
that life experiences are important to the process of judging;
they help you to understand and listen; but that the law
requires a result, and it will command you to the facts that
are relevant to the disposition of the case.
Senator Sessions. Well, I would just note you made that
statement in individual speeches about seven times over a
number-of-years' span, and it is concerning to me. So I would
just say to you I believe in Judge Cedarbaum's formulation, and
she said--and you disagreed, and this was really the context of
your speech, and you used her statement as sort of a beginning
of your discussion. And you said she believes that a judge, no
matter what their gender or background, should strive to reach
the same conclusion, and she believes that is possible. You
then argued that you do not think it is possible in all, maybe
even most cases. You deal with the famous quote of Justice
O'Connor in which she says, ``A wise old man should reach the
same decision as a wise old woman.'' And you push back from
that. You say you do not think that is necessarily accurate,
and you doubt the ability to be objective in your analysis.
So how can you reconcile your speeches, which repeatedly
assert that impartiality is a mere aspiration which may not be
possible in all or even most cases with your oath that you have
taken twice, which requires impartiality?
Judge Sotomayor. My friend Judge Cedarbaum is here this
afternoon, and we are good friends, and I believe that we both
approach judging in the same way, which is looking at the facts
of each individual case and applying the law to those facts.
I also, as I explained, was using a rhetorical flourish
that fell flat. I knew that Justice O'Connor couldn't have
meant that if judges reached different conclusions, legal
conclusions, that one of them wasn't wise. That couldn't have
been her meaning because reasonable judges disagree on legal
conclusions in some cases.
So I was trying to play on her words. My play was--fell
flat. It was bad, because it left an impression that I believed
that life experiences commanded a result in a case. But that's
clearly not what I do as a judge. It's clearly not what I
intended. In the context of my broader speech, which was
attempting to inspire young Hispanic, Latino students and
lawyers to believe that their life experiences added value to
the process.
Senator Sessions. Well, I can see that perhaps as a lay
person's approach to it, but as a judge who has taken this
oath, I am very troubled that you would repeatedly over a
decade or more make statements that consistently--any fair
reading of these speeches consistently argues that this ideal
and commitment--I believe every judge is committed, must be, to
put aside their personal experiences and biases and make sure
that that person before them gets a fair day in court.
Judge, so philosophy can't impact your judging. I think it
is much more likely to reach full flower if you sit on the
Supreme Court than it will on a lower court where you are
subject to review by your colleagues on the higher Court. So
with regard to how you approach law and your personal
experiences, let's look at the New Haven firefighters case, the
Ricci case.
In that case, the city of New Haven told firefighters that
they would take an exam, set for the process for it, that would
determine who would be eligible for promotion. The city spent a
good deal of time and money on the exam to make it a fair test
of a person's ability to serve as a supervisory fireman, which,
in fact, has the awesome responsibility at times to send their
firemen into a dangerous building that is on fire. And they had
a panel that did oral exams--it was not all written--consisting
of one Hispanic and one African American and one white. And
according to the Supreme Court--this is what the Supreme Court
held: The New Haven officials were careful to ensure broad
racial participation in the design of the test and its
administration. The process was open and fair. There was no
genuine dispute that the examinations were job related and
consistent with business purposes, business necessity. But
after the city saw the results of the exam, it threw out those
results because ``not enough of one group did well enough on
the test.''
The Supreme Court then found that the city, and I quote,
``rejected the test results solely because the higher scoring
candidates were white. After the tests were completed, the raw
racial results became the predominant rationale for the city's
refusal to certify the results.''
So you have stated that your background affects the facts
that you choose to see. Was the fact that the New Haven
firefighters had been subject to discrimination one of the
facts you chose not to see in this case?
Judge Sotomayor. No, sir. The panel was composed of me and
two other judges. In a very similar case, the Seventh Circuit,
in an opinion authored by Judge Easterbrook--I'm sorry. I
misspoke. It wasn't Judge Easterbrook. It was Judge Posner--saw
the case in an identical way. And neither judge--I have
confused some statements that Senator Leahy made with this
case, and I apologize.
In a very similar case, the Sixth Circuit approached a very
similar issue in the same way. So a variety of different judges
on the appellate court were looking at the case in light of
established Supreme Court and Second Circuit precedent and
determined that the city, facing potential liability under
Title VII, could choose not to certify the test if it believed
an equally good test could be made with a different impact on
affected groups.
The Supreme Court, as it is its prerogative in looking at a
challenge, established a new consideration or a different
standard for the city to apply, and that is, was there
substantial evidence that they would be held liable under the
law?
That was a new consideration. Our panel didn't look at that
issue that way because it wasn't argued to us in the case
before us and because the case before us was based on existing
precedent. So it is a different test----
Senator Sessions. Judge, there was apparently unease within
your panel. I was really disappointed--and I think a lot of
people have been--that the opinion was so short, it was per
curiam, it did not discuss the serious legal issues that the
case raised. And I believe that is a legitimate criticism of
what you did. But it appears, according to Stuart Taylor, the
respected legal writer for the National Journal, that--Stuart
Taylor concluded that it appears that Judge Cabranes was
concerned about the outcome of the case, was not aware of it
because it was a per curiam unpublished opinion, but it began
to raise the question of whether rehearing should be granted.
You say you are bound by the superior authority, but the
fact is when the question of rehearing that Second Circuit
authority that you say covered the case--some say it didn't
cover so clearly--but that was up for debate. And the circuit
voted, and you voted not to reconsider the prior case. You
voted to stay with the decision of the circuit and, in fact,
your vote was the key vote. Had you voted with Judge Cabranes,
himself of Puerto Rican ancestry, had you voted with him, you
could have changed that case. So, in truth, you weren't bound
by that case had you seen it a different way. You must have
agreed with it and agreed with the opinion and stayed with it
until it was reversed by the Court.
Let me just mention this: In 1997----
Chairman Leahy. Was that a question or----
Senator Sessions. Well, that was a response to some of what
you said, Mr. Chairman, because you misrepresented factually
the posture of the case. In 19----
Chairman Leahy. Well, I obviously will disagree with that,
but we will have a chance to vote on this issue.
Senator Sessions. In 1997, when you came before the Senate
and I was a new Senator, I asked you this: ``In a suit
challenging a Government racial preference, quota, or set-
aside, will you follow the Supreme Court decision in Adarand
and subject racial preferences to the strictest judicial
scrutiny? ''
In other words, I asked you would you follow the Supreme
Court's binding decision in Adarand v. Pena? In Adarand, the
Supreme Court held that all governmental discrimination,
including affirmative action programs, that discriminated by
race of an applicant must face strict scrutiny in the courts.
In other words, this is not a light thing to do. When one race
is favored over another, you must have a really good reason for
it, or it is not acceptable.
After Adarand, the Government agencies must prove there is
a compelling state interest in support of any decision to treat
people differently by race.
This is what you answer: ``In my view, the Adarand Court
correctly determined that the same level of scrutiny, strict
scrutiny, applies for the purpose of evaluating the
constitutionality of all government classifications, whether at
the State or Federal level, based on race.'' So that was your
answer, and it deals with the government being the city of New
Haven.
You made a commitment to this Committee to follow Adarand.
In view of this commitment, you gave me 12 years ago, why are
the words ``Adarand,'' ``equal protection,'' and ``strict
scrutiny'' completely missing from any of your panel's
discussion of this decision?
Judge Sotomayor. Because those cases were not what was at
issue in this decision, and, in fact, those cases were not what
decided the Supreme Court's decision. The Supreme Court parties
were not arguing the level of scrutiny that would apply with
respect to intentional discrimination. The issue is a different
one before our court and the Supreme Court, which is, What is a
city to do when there is proof that its test disparately
impacts a particular group?
And the Supreme Court decided, not on the basis of strict
scrutiny, that what it did here was wrong, what the city did
here was wrong, but on the basis that the city's choice was not
based on a substantial basis in evidence to believe it would be
held liable under the law.
Those are two different standards, two different questions
that a case would present.
Senator Sessions. This case was recognized pretty soon as a
big case. I noticed what perhaps kicked off Judge Cabranes'
concern was a lawyer saying it was the most important
discrimination case that the circuit had seen in 20 years. They
were shocked. They got a, basically, one paragraph decision,
per curiam, unsigned, back on that case.
Judge Cabranes apparently raised this issue within the
circuit, asked for a rehearing. Your vote made the difference
in not having a rehearing en banc. And he said, ``Municipal
employers could reject the results''--and talking about the
results of your test, the impact of your decision. ``Municipal
employers could reject the results of an employment examination
whenever those results failed to yield a desirable outcome,
i.e., failed to satisfy a racial quota.''
So that was Judge Cabranes' analysis of the impact of your
decision. And he thought it was very important. He wanted to
review this case. He thought it deserved a full and complete
analysis and opinion. He wanted the whole circuit to be
involved in it. And to the extent that some prior precedent in
the circuit was different, the circuit could have reversed that
precedent had they chose to do so.
Don't you think--tell us how it came to be that this
important case was dealt with in such a cursory manner?
Judge Sotomayor. The panel decision was based on a 78-page
District Court opinion. The opinion referenced it. In its per
curiam, the Court incorporated it directly, but it was
referenced by the circuit. And it relied on that very
thoughtful, thorough opinion by the District Court. And that
opinion discussed Second Circuit precedent in its fullest--to
its fullest extent.
Justice Cabranes had one view of the case; the panel had
another. The majority of the vote--it wasn't just my vote--the
majority of the Court, not just my vote, denied the petition
for rehearing.
The court left to the Supreme Court the question of how an
employer should address what no one disputed, was prima facie
evidence that its test disparately impacted on a group. That
was undisputed by everyone, but the case law did permit
employees that had been disparately impacted to bring a suit.
The question was, for the city, was it racially
discriminating when it didn't accept those tests or was it
attempting to comply with the law.
Senator Sessions. Well, Your Honor, I think it is not fair
to say that a majority--I guess it is fair to say a majority
voted against rehearing, but it was 6 to 6, unusual that one of
the judges had to challenge a panel decision. And your vote
made the majority not to rehear it.
Ricci did deal with some important questions, some of the
questions that we have got to talk about as a nation. We have
to work our way through. I know there is concern on both sides
of this issue, and we should do it carefully and correctly.
But do you think that Frank Ricci and the other
firefighters, whose claims you dismissed, felt that their
arguments and concerns were appropriately understood and
acknowledged by such a short opinion from the Court?
Judge Sotomayor. We were very sympathetic and expressed our
sympathy to the firefighters who challenged the city's
decision, Mr. Ricci and the others. We understood the efforts
that they had made in taking the test; we said as much.
They did have before them a 78-page thorough opinion by the
District Court. They obviously disagreed with the law as it
stood under Second Circuit precedent. That's why they were
pursuing their claims and did pursue them further.
In the end, the body that had the discretion and power to
decide how these tough issues should be decided, that along the
precedent that had been recognized by our circuit court and
another at least, the Sixth Circuit, but along what the Court
thought would be the right test or standard to apply. And
that's what the Supreme Court did. It answered that important
question because it had the power to do that. Not the power,
but the ability to do that because it was faced with the
arguments that suggested that. The panel was dealing with
precedent and arguments that relied on our precedent.
Senator Sessions. Thank you, Judge, and I appreciate this
opportunity. I would just say, though, had the per curiam
opinion stood without a rehearing requested by one of the
judges in the whole circuit and kicked off the discussion, it
is very, very unlikely that we would have heard about this case
or the Supreme Court would have taken it up.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Obviously, we can talk about your speeches, but,
ultimately, will it determine how you act as a judge and how
you make decisions? And I will put into the record the American
Bar Association, which has unanimously given you the highest
rating.
I put into the record the New York City Bar, which said you
are extremely well credentialed to sit on the Supreme Court. I
will put that in there.
I will put in the Congressional Research Service report
analyzing your cases and found that you consistently deal with
the law and with stare decisis, upholding past judicial
precedents.
I will put in that the nonpartisan Brennan Center found you
solidly in the mainstream. And then in another analysis of more
than 800 of your cases, which found you called a traditional
consensus judge on criminal justice issues.
[The statements appear as a submission for the record.]
Chairman Leahy. I thought I would put those in. It is one
thing to talk about speeches you might give. I am more
interested about cases you might decide.
Senator Kohl.
Senator Kohl. Thank you very much, Mr. Chairman, and good
morning, Judge Sotomayor.
Judge Sotomayor. Good morning.
Senator Kohl. Just spent a great deal of time on the New
Haven case, so I would like to see if we can put it into some
perspective.
Isn't it true that Ricci was a very close case? Isn't it
true that 11 of the 22 judges that reviewed the case did agree
with you, and that it was only reversed by the Supreme Court by
a one vote 5 to 4 margin?
Do you agree, Judge, that it was a close case and that
reasonable minds could have seen it in one way or another and
not be seen as prejudiced or unable to make a clear decision?
Judge Sotomayor. To the extent that reasonable minds can
differ on any case, that's true as to what the legal conclusion
should be in a case. But the panel, at least as the case was
presented--was relying on the reasonable views that Second
Circuit precedent had established.
And so, to the extent that one, as a judge, adheres to
precedents, because it is that which dies and gives stability
to the law, then those reasonable minds, who decided the
precedent and the judges who apply it, are coming to the legal
conclusion they think the facts and laws require.
Senator Kohl. All right.
Judge, we have heard several of our colleagues, now,
particularly on the other side, criticize you because they
believe some things that you have said in speeches show that
you will not be able to put your personal views aside. But I
believe rather than pulling lines out of speeches, oftentimes
out of context, there are better ways to examine your record as
a judge.
In fact, when I ask now Justice Alito what sort of a
justice he was going to make, he said, ``If you want to know
what sort of justice I would make, look at what sort of judge
I've been.''
So you have served now as a Federal judge for the past 17
years, the last 11 as an appellate court judge. We examined the
record. I believe it is plain that you are a careful jurist,
respectful of precedent, and author of dozens of moderate and
carefully reasoned decisions.
The best evidence I believe is the infrequency with which
you have been reversed. You have authored over 230 majority
opinions in your 11 years on the Second Circuit Court of
Appeals. But in only three out of those 230 plus cases have
your decisions been reversed by the Supreme Court, a very, very
low reversal rate of 2 percent.
Doesn't this very low reversal rate indicate that you do
have, in fact, an ability to be faithful to the law and put
your personal opinions and background aside when deciding
cases, as you have in your experience as a Federal judge?
Judge Sotomayor. I believe what my record shows is that I
follow the law, and that my small reversal rate, vis-a-vis the
vast body of cases that I have examined--because you've
mentioned only the opinions I've authored. But I've been a
participant in thousands more that have not been either
reviewed by the Supreme Court or reversed.
Senator Kohl. Well, I agree with what you are saying. And I
would like to suggest that this constant criticism of you in
terms of your inability to be an impartial judge is totally
refuted by the record that you have compiled as a Federal judge
up to this point.
We have heard much recently about Chief Justice Roberts'
view that judges are like umpires simply calling balls and
strikes. So finally, would you like to take the opportunity to
give us your view about this sort of an analogy?
Judge Sotomayor. Few judges could claim they love baseball
more than I do, for obvious reasons. But analogies are always
imperfect, and I prefer to describe what judges do, like
umpires, is to be impartial and bring an open mind to every
case before them. And by an open mind, I mean a judge who looks
at the facts of each case, listens and understands the
arguments of the parties, and applies the law as the law
commands.
It's a refrain I keep repeating because that is my
philosophy of judging, applying the law to the facts at hand.
And that's my description of judging.
Senator Kohl. Thank you.
Judge, which current one or two Supreme Court justices do
you most identify with and which ones might we expect you to be
agreeing with most of the time in the event that you are
confirmed?
Judge Sotomayor. Senator, to suggest that I admire one of
the sitting Supreme Court justices would suggest that I think
of myself as a clone of one of the justices. I don't. Each one
of them brings integrity, their sense of respect for the law,
and their sense of their best efforts and hard work to come to
the decisions they think the law requires.
Going further than that would put me in the position of
suggesting that by picking one justice, I was disagreeing or
criticizing another, and I don't wish to do that. I wish to
describe just myself.
I'm a judge who believes that the facts drive the law and
the conclusion that the law will apply to that case. And when I
say drives the law, I mean determines how the law will apply in
that individual case.
If you would ask me--instead, if you permit me to tell you
a justice from the past that I admire for applying that
approach to the law, it would be Justice Cardozo.
Now, Justice Cardozo didn't spend a whole lot of time on
the Supreme Court; he had an untimely passing. But he had been
a judge on the New York Court of Appeals for a very long time.
And during his short tenure on the bench, one of the factors
that he was so well known for was his great respect for
precedent, and his great respect for respect and deference to
the legislative branch, and to the other branches of government
and their powers under the Constitution.
In those regards, I do admire those parts of Justice
Cardozo, which he was most famous for, and think that that is
how I approach the law, as a case-by-case application of law to
facts.
Senator Kohl. Thank you. Appreciate that.
Judge Sotomayor, many of us are impressed with you in your
nomination and we hold you in great regard. But I believe we
have a right to know what we are getting before we give you a
lifetime appointment to the highest court in the land.
In past confirmation hearings, we have seen nominees who
tell us one thing during our private meetings and in the
confirmation hearings, and then go to the Court and become a
justice that is quite different from the way they portrayed
themselves at the hearing.
So I would like to ask you questions about a few issues
that have generated much discussion. First, affirmative action.
Judge, I would like to discuss the issue of affirmative
action. We can all agree that it is good for our society when
employers, schools and government institutions encourage
diversity. On the other hand, the consideration of ethnicity or
gender should not trump qualifications or turn into a rigid
quota system.
Without asking you how you would rule in any particular
case, what do you think of affirmative action?
Do you believe that affirmative action is a necessary part
of our society to date?
Do you agree with Justice O'Connor that she expects in 25
years the use of racial preferences will no longer be necessary
to promote diversity?
Do you believe affirmative action is more justified in
education than in employment or do you think it makes no
difference?
Judge Sotomayor. The question of whether affirmative action
is necessary in our society or not and what form it should take
is always first a legislative determination in terms of
legislative or government employer determination in terms of
what issue it is addressing and what remedy it is looking to
structure.
The Constitution promotes and requires the equal protection
of law of all citizens in its Fourteenth Amendment. To ensure
that protection, there are situations in which race in some
form must be considered. The courts have recognized that.
Equality requires effort, and so there are some situations in
which some form of race has been recognized by the Court.
It is firmly my hope, as it was expressed by Justice
O'Connor in her decision involving the University of Michigan
Law School admissions criteria, that in 25 years, race in our
society won't be needed to be considered in any situation.
That's the hope, and we've taken such great strides in our
society to achieve that hope.
But there are situations in which there are compelling
state interests. And the admissions case that Justice O'Connor
was looking at, the Court recognized that in the education
field. And the state is applying a solution that is very
narrowly tailored. And there the Court determined that the law
school's use of race as only one factor among many others, with
no presumption of admission whatsoever, was appropriate under
the circumstances.
In another case, companion case, the Court determined that
a more fixed use of race that didn't consider the individual
was inappropriate, and it struck down the undergraduate
admissions policy.
That is what the Court has said about the educational use
of race in a narrow way.
The question, as I indicated, of whether that should apply
in other contexts has not been looked at by the Supreme Court
directly. The holdings of that case have not been applied or
discussed in another case. That would have to await another
state action that would come before the Court, where the state
would articulate its reasons for doing what it did, and the
Court would consider if those actions were constitutional or
not.
Senator Kohl. Thank you.
Judge, Bush v. Gore. Many critics saw the Bush v. Gore
decision as an example of the judiciary improperly injecting
itself into a political dispute.
In your opinion, should the Supreme Court even have decided
to get involved in Bush v. Gore?
Judge Sotomayor. That case took the attention of the
nation, and there's been so much discussion about what the
Court did or didn't do.
I look at the case, and my reaction as a sitting judge is
not to criticize it or to challenge it, even if I were disposed
that way, because I don't take a position on that; that the
Court took and made the decision it did.
The question for me as I look at that sui generis
situation--it's only happened once in the lifetime of our
country--is that some good came from that discussion. There's
been and was enormous electoral process changes in many states
as a result of the flaws that were reflected in the process
that went on.
That is a tribute to the greatness of our American system,
which is whether you agree or disagree with a Supreme Court
decision, that all of the branches become involved in the
conversation of how to improve things. And as I indicated, both
Congress, who devoted a very significant amount of money to
electoral reform in its legislation--and states have looked to
address what happened there.
Senator Kohl. Judge, in a 5:4 decision in 2005, the Supreme
Court ruled in Kelo v. City of New London, that it was
constitutional for local government to seize private property
for private, economic development.
Many people, including myself, were alarmed about the
consequences of this landmark ruling because, in the words of
dissenting Justice O'Connor, under the logic of the Kelo case,
``Nothing is to prevent the state from replacing any Motel 6
with a Ritz Carlton, any home with a shopping mall, or any farm
with a factory.''
This decision was a major shift in the law. It said that
private development was a permissible ``public use,'' according
to the Fifth Amendment, as long as it provided economic growth
for the community.
What is your opinion of the Kelo decision, Judge Sotomayor?
What is an appropriate ``public use'' for condemning private
property?
Judge Sotomayor. Kelo is now a precedent of the Court. I
must follow it. I am bound by a Supreme Court decision as a
Second Circuit judge. As a Supreme Court judge, I must give it
the deference that the doctrine of the stare decisis would
suggest.
The question of the reach of Kelo has to be examined in the
context of each situation. And the Court did in Kelo note that
there was a role for the courts to play in ensuring that
takings by a state did, in fact, intend to serve the public--a
public purpose and public use.
I understand the concern that many citizens have expressed
about whether Kelo did or did not honor the importance of
property rights, but the question in Kelo was a complicated one
about what constituted public use. And there the Court held
that a taking to develop an economically blighted area was
appropriate.
Senator Kohl. Yes. That is what they decided in Kelo. I
asked you your opinion, and apparently you feel that you are
not in a position to offer an opinion because it is precedent,
and now you are required to follow precedent as an appellate
court judge.
But I asked you if you would express your opinion, assuming
that you became a Supreme Court justice, and assuming that you
might have a chance someday to review the scope of that
decision.
Judge Sotomayor. I don't prejudge issues.
Senator Kohl. All right.
Judge Sotomayor. That is actually--I come to every case
with an open mind.
Senator Kohl. All right.
Judge Sotomayor. Every case is a new for me.
Senator Kohl. That is good. All right. Let's leave that.
As you know, Judge, the landmark case of Griswold v.
Connecticut guarantees that there is a fundamental
constitutional right to privacy as it applies to contraception.
Do you agree with that? In your opinion, is that settled
law?
Judge Sotomayor. That is the precedent of the Court, so it
is settled law.
Senator Kohl. Is there a general constitutional right to
privacy, and where is the right to privacy, in your opinion,
found in the Constitution?
Judge Sotomayor. There is a right of privacy. The Court has
founded in various places in the Constitution, has recognized
rights under those various provisions of the Constitution. It's
founded in the Fourth Amendment's right and prohibition against
unreasonable search and seizures.
Most commonly, it's considered--I shouldn't say most
commonly because search and seizure cases are quite frequent
before the Court. But it's also found in the Fourteenth
Amendment of the Constitution when it is considered in the
context of the liberty interest protected by the due process
clause of the Constitution.
Senator Kohl. All right.
Judge, the Court's ruling about the right to privacy in
Griswold laid the foundation for Roe v. Wade. In your opinion,
is Roe settled law?
Judge Sotomayor. The Court's decision in Planned Parenthood
v. Casey reaffirmed the core holding of Roe. That is the
precedent of the Court and settled in terms of the holding of
the Court.
Senator Kohl. Do you agree with Justices Souter, O'Connor
and Kennedy in their opinion in Casey, which reaffirmed the
core holding in Roe?
Judge Sotomayor. As I said, Casey reaffirmed the holding in
Roe. That is the Supreme Court's settled interpretation of what
the core holding is and its reaffirmance of it.
Senator Kohl. All right. Let's talk a little bit 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 has 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
the Supreme Court decides with respect to our Constitution, our
rights and our future?
Judge Sotomayor. I have had positive experiences with
cameras. When I have been asked to join experiments using
cameras in the courtroom, I have participated. I have
volunteered.
Perhaps it would be useful if I explained to you my
approach to collegiality on a court.
[Laughter.]
Judge Sotomayor. 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 prejudgments, 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
procedures on the Court, including the question of cameras in
the courtroom.
Senator Kohl. No. I appreciate the fact that if you cannot
convince them, it will not happen. But how do you feel----
[Laughter.]
Senator Kohl [continuing]. How do you feel about permitting
cameras in the Supreme Court, recognizing that you cannot
decree it by fiat?
Judge Sotomayor. You know, I'm pretty good----
Senator Kohl. Do you think it is a good idea?
Judge Sotomayor [continuing]. I'm a pretty good litigator.
I was a really good litigator. And I know that when I work hard
at trying to convince my colleagues of something after
listening to them, they'll often try it for a while. I mean,
we'll have to talk together. We'll have to figure out that
issue together.
Senator Kohl. All right.
Judge Sotomayor. 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 consider
taking new approaches.
Senator Kohl. All right.
Judge, all of us in public office, other than Federal
judges, have specific fixed terms, and we must periodically run
for reelection if you want to remain in office. Even most state
court judges have fixed terms of office. The Federal Judiciary,
as you know, is very different. You have no term of office;
instead, you serve for life.
So I would like to ask you, would you support term limits
for Supreme Court justices, for example, 15, 20 or 25 years?
Would this help ensure that justices do not become victims of a
cloistered, ivory tower existence, and that you will be able to
stay in touch with the problems of ordinary Americans?
Term limits for Supreme Court justices?
Judge Sotomayor. All questions of policy are within the
providence of Congress first. And so, that particular question
would have to be considered by Congress first. But it would
have to consider it in light of the Constitution and then of
statutes that govern these issues. And so, that first step and
decision would be Congress'.
I can only note that there was a purpose to the structure
of our Constitution, and it was a view by the Founding Fathers
that they wanted justices who would not be subject to political
whim or to the emotions of a moment. And they felt that by
giving them certain protections, that that would ensure their
objectivity and their impartiality over time.
I do know, having served with many of my colleagues who
have been members of the court, sometimes for decades, I had
one colleague who was still an active member of the court in
his nineties. And at close to 90, he was learning the Internet
and encouraging my colleagues of a much younger age to
participate in learning the Internet.
So I don't think that it's service or the length of time. I
think there's wisdom that comes to judges from their experience
that helps them in the process over time. I think in the end,
it is a question of, one, of what the structure are of our
government is best served by. And as I said, the policy
question will be considered first by Congress and the processes
set forth by the Constitution. But I do think there is a value
in the services of judges for long periods of time.
Senator Kohl. All right, Judge. Finally, I would like to
turn to antitrust law. Antitrust law is not some mysterious
legal theory, as you know, that only lawyers can understand.
Antitrust is just an old-fashioned word for fair competition,
Judge, and it is a law we use to protect consumers and
competitors alike from unfair and illegal trade practices.
A prominent antitrust lawyer named Carl Hittinger was
quoted in an AP story recently as saying that, ``Judge
Sotomayor has surprisingly broke the pro-business record in the
area of antitrust. In nearly every case in which she was one of
the three judges considering a dispute, the court ruled against
the plaintiff bringing an antitrust complaint.''
I would like you to respond to that and to one other thing
I would like to raise.
In 2007, Leegin case, in a 5-4 decision. Supreme Court
overturned a 97-year-old precedent and held that vertical price
fixing no longer automatically violated antitrust law. In
effect, this means that a manufacturer is now free to set
minimum prices at retail for its products, and thereby,
prohibit discounting of its products.
What do you think of this decision? Do you think it was
appropriate for the Supreme Court, by judicial fiat, to
overturn a nearly century-old decision, on the meaning of this
Sherman Act, that businesses and consumers had come to rely on
and which had been never altered by Congress?
Those two things, antitrust.
Judge Sotomayor. I cannot speak, Senator, to whether
Leegins was right or wrong; it's now the established law of the
Court. That case in large measure centered around the justices,
different views of the effects of stare decisis on a question
which none of them seemed to dispute, that there were a basis
to question the economic assumptions of the Court in this field
of law.
Leegins is the Court's holding, its teachings and holding.
And I will have to apply in new cases, so I can't say more than
what I know about it and what I thought the Court was doing
there.
With respect to my record, I can't speak for why someone
else would view my record as suggesting a pro or anti approach
to any series of cases. All of the business cases, as with all
of the cases, my structure of approaching is the same; what is
the law requiring?
I would note that I have cases that have upheld antitrust
complaints and upheld those cases going forward. I did it in my
Visa/MasterCard antitrust decision, and that was also a major
decision in this field.
All I can say is that with business and the interest of any
party before me, I will consider and apply the law as it is
written by Congress and informed by precedent.
Senator Kohl. Thank you very much, Judge Sotomayor, and
thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Judge Sotomayor, this is probably an appropriate place to
take a short break, and we will. And then we will come back. At
some point, we will break for both the Republicans and the
Democrats to be in caucus lunch, but also gives you a chance to
have lunch.
So we will take a 10-minute, flexible 10-minute, break. And
I thank you for your patience here, Judge Sotomayor, and we
will be back.
[Whereupon, at 11:08 a.m., the hearing was recessed.]
After Recess [11:27 a.m.]
Chairman Leahy. There has been some question during the
break from the press about what our schedule will be, and I
fully understand that they have to work out their own
schedules. What I would suggest--Senator Kohl asked questions.
We will go to--next is Senator Hatch, a former chairman of this
committee. Following Senator Hatch, we will go to Senator
Feinstein. And that will bring us to roughly 12:30.
Because of the caucuses, we will break at 12:30, but then
resume right at 2, which will mean--I have talked to
Republicans and Democrats. It means everybody that wants to
come back will leave their caucus a few minutes early. But I
think everybody will understand that.
Senator Hatch is a former chairman of this committee and a
friend of many years. I recognize Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Welcome, again, and to your lovely family. We are grateful
to have you all here.
Now, let me ask you a question about settled law. If a
holding in the Supreme Court means that it is settled, you
believe that Gonzalez v. Carhart, upholding the partial birth
abortion ban, is settled law.
Judge Sotomayor. All precedents of the Supreme Court I
consider settled law subject to the deference with doctrine of
stare decisis would counsel.
Senator Hatch. Now, I want to begin here today by looking
at your cases in an area that is very important to many of us,
and that is the Second Amendment, the right to keep and bear
arms, and your conclusion that the right is not fundamental.
Now, in the 2004 case entitled United States v. Sanchez-
Villar, you handled the Second Amendment issue in a short
footnote. You cited the Second Circuit's decision in United
States v. Toner for the proposition of the right to possess a
gun is not a fundamental right.
Toner in turn relied on the Supreme Court's decision in
United States v. Miller. Last year, in the District of Columbia
v. Heller, the Supreme Court examined Miller and concluded
that, ``The case did not even purport to be a thorough
examination of the Second Amendment,'' and that Miller provided
``no explanation of the content of the right.''
You are familiar with that.
Judge Sotomayor. I am, sir.
Senator Hatch. Okay. So let me ask you, doesn't the Supreme
Court's treatment of Miller at least cast doubts on whether
relying on Miller, as the Second Circuit has done for this
proposition, is proper?
Judge Sotomayor. The issue----
Senator Hatch. Remember, I am saying at least cast doubts.
Judge Sotomayor [continuing]. Well, that is 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. It's not that I
considered it unfunda-mental, but that the Supreme Court didn't
consider it fundamental so as to be incorporated against the
states.
Senator Hatch. Well, it did not decide that point.
Judge Sotomayor. Well, it not only didn't 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.
Senator Hatch. Well, if Heller had already been decided,
would you have addressed that issue differently than Heller or
would you take the position that the doctrine of incorporation
is inapplicable with regard to state issues?
Judge Sotomayor. That's the very question that the Supreme
Court is more than likely to be considering. There are three
cases addressing this issue, at least I should say three cases
addressing this issue in the circuit courts. And so, it's not a
question that I can address. As I said, bring an open mind to
every case.
Senator Hatch. I accept that.
In Sanchez-Villar, you identified the premise that a right
to possess a gun is not fundamental, and the conclusion that
New York's ban on gun possession was permissible under the
Second Amendment, but it is not a word actually 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?
Judge Sotomayor. No, sir, because that's not--I'm not
taking an opinion on that issue because it's an open question.
Sanchez is----
Senator Hatch. So you admit it is an open question.
Judge Sotomayor. Well, I admit that Justice--I admit--I--
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 am just
attempting to explain that U.S. v. Sanchez was using
fundamental in its legal sense, that whether or not it had been
incorporated against the states.
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 am--I believe that the question there was whether
or not a prohibition against felons possessing firearms was at
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.
Senator Hatch. Well, in the District of Columbia v. Heller,
the Supreme Court observed that, ``It has always been widely
understood that the Second Amendment, like the First and Fourth
Amendments, codified a preexisting right.'' And the Court also
observed this, ``By the time of the founding, the right to have
arms had become fundamental for English subjects.''
Now, the Court also described the right to bear arms is a
natural right.
Do you recall that from that decision?
Judge Sotomayor. I do remember that discussion.
Senator Hatch. All right.
In what way does the Court's observation that the Second
Amendment codified the preexisting, fundamental right to bear
arms affect your conclusion that the Second Amendment does not
protect a fundamental right?
Judge Sotomayor. My conclusion in the Maloney case or in
the U.S. Sanchez-Villar was based on precedence and the holding
of precedence that the Second Circuit did not apply to the
states.
Senator Hatch. Well, what is--excuse me. I am sorry. I did
not mean to interrupt you.
What is your understanding of the test or standard the
Supreme Court has used to determine whether a right should be
considered fundamental? I am not asking a hypothetical here. I
am only 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 an Anglo-American regime of ordered
liberty or that it is an enduring American tradition.
I think I have cited that pretty accurately on what the
Court has held with regard to what is a fundamental right. Now,
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?
Judge Sotomayor. The Supreme Court's decision with respect
to the Second Circuit incorporation--Second Amendment
incorporation doctrine is reliant on old precedent of the
Court.
Senator Hatch. Right.
Judge Sotomayor. 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 a different framework. And whether that framework and
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----
Senator Hatch. Sure.
Judge Sotomayor [continuing]. That description.
My point is, however, that once there's 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
Easterbrook, has agreed that once you have settled precedent in
an area, 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.
Senator Hatch. All right. As I noted, the Supreme Court put
the Second Amendment in the same category as the First and the
Fourth Amendments as preexisting 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?
Judge Sotomayor. Those rights have been incorporated
against the states. The states must comply with them. So to the
extent that the Court has held that, then they are--they have
been deemed fundamental as that term is understood legally.
Senator Hatch. What about the Fourth Amendment about
unreasonable searches and seizures?
Judge Sotomayor. As well.
Senator Hatch. Same?
Judge Sotomayor. But with respect to the holding as it
relates to that particular amendment.
Senator Hatch. I understand.
Let me turn to your decision in Maloney v. Cuomo. And this
is the first post-Heller decision about the Second Amendment to
reach any Federal court, or 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 and not to the states. And this
was after Heller. And am I right that your authority for that
proposition was the Supreme Court's 1886 decision in Presser v.
Illinois?
Judge Sotomayor. That plus some Second Circuit precedent
that had held that it had not--that the amendment had not
been----
Senator Hatch. But Plesser was definitely one of the cases
you relied on.
Judge Sotomayor. It was.
Senator Hatch. All right. In that case--or I should say,
that case involved the Fourteenth Amendment's privileges and
immunities clause.
Now, is that correct? Are you aware of that?
Judge Sotomayor. It may have. I haven't read it recently
enough to remember exactly.
Senator Hatch. You can take my word on it.
Judge Sotomayor. Okay. I'll accept----
Senator Hatch. Thank you.
Last year's decision in Heller involved the District of
Columbia, so it did not decide the issue of 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 to the states ``did not engage the sort of
Fourteenth Amendment inquiry required by our later cases.''
Now, here is my question.
Am I right that those later cases to which the Court
referred involved the Fourteenth Amendment's due process clause
rather than its privileges and immunities clause?
Judge Sotomayor. As I said, I haven't examined those cases
recently enough to be able to answer your question, Senator.
But what I can say is that regardless of what those pieces
address or didn't address, the Second Circuit had very directly
addressed the question of whether the Second--whether it viewed
the Second Amendment as applying against the states.
To that extent, if that precedent got the Supreme Court's
teachings wrong, it still would bind my court.
Senator Hatch. I understand that.
Judge Sotomayor. And to the extent that----
Senator Hatch. I am talking about something beyond that. I
am talking about what should be done here.
Isn't the Presser case that 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 have used the privileges
and immunities clause, not the Fourteenth Amendment due process
clause, to incorporate--see, the late cases have all used the
Fourteenth Amendment, as far as I can recall.
Judge Sotomayor. As I said, Senator, I just haven't looked
at those cases to analyze it. I know what Heller said about
them. In Maloney, we were addressing a very, very narrow
question.
Senator Hatch. Right.
Judge Sotomayor. And in the end, the issue of whether that
precedent should be followed or not is a question the Supreme
Court's going to address if it accepts certiorari in one of the
three cases in which courts have looked at this question, the
Court of Appeals has.
Senator Hatch. The reason I am going over this is I believe
you applied the wrong line of cases in Maloney, because you
were applying cases that used the privileges and immunities
clause and not cases that used the Fourteenth Amendment due
process clause.
Let me just clarify your decision in Maloney. As I read it,
you held that the Second Amendment does not apply to the state
or local governments. You also held that since the right to
bear arms is not fundamental, all that is required to justify a
weapons restriction is some reasonably conceivable state of
facts that could provide a rational basis for it.
Now, am I right that this is a very permissive standard
that would be easily met, the rational basis standard?
Judge Sotomayor. Well, all standards of the Court are
attempting to ensure that government action has a basis.
Senator Hatch. Right.
Judge Sotomayor. In some situations, the Court looks at the
action and applies a stricter scrutiny 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 standard of review is of rational basis.
Senator Hatch. And my point is, it is a permissive standard
that can be easily met; isn't that correct?
Judge Sotomayor. Well, the government can remedy a social
problem that it is identifying or difficulty--it's identifying
in conduct, 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 in the
definition.
Senator Hatch. Maybe I can use the words ``more easily
met'' ? How is that?
Judge Sotomayor. As I said, the rational basis does look
more broadly than strict scrutiny may----
Senator Hatch. That is my point. That is my point.
As a result of this very permissive legal standard, and it
is permissive, doesn't your decision in Maloney mean that
virtually any state or local weapons ban would be permissible?
Judge Sotomayor. Sir, in Maloney we were talking about
nunchuck sticks.
Senator Hatch. I understand.
Judge Sotomayor. Those are martial art sticks.
Senator Hatch. Two sticks bound together by rawhide or some
sort of a----
Judge Sotomayor. Exactly. And when the sticks are swung,
which is what you do with them, if there's anybody near you,
you're going to be seriously injured because that swinging
mechanism can break arms, it can bust someone's skull----
Senator Hatch. Sure.
Judge Sotomayor [continuing]. It can 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--legislative findings as to why a remedy is needed.
And that statute would then be subject to rational basis
review.
Senator Hatch. Well, the point that I am really making is,
is that the decision was based upon a 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 that is just an important consideration for you as
you see these cases in the future.
But let me just change the subject. In the Ricci case--and
I am very concerned about that because of a variety of
reasons--the Court split 5 to 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 other reason that Judge Cabranes raised the issue is
that he read it in the newspaper, and then said I want to see
that case. Then he got it, and he realized, my gosh, this is a
case of first impression.
So the Court split 5 to 4 on whether to grant summary
judgment to the firefighters. Now, even the four dissenters
said that the firefighters deserved their day in court to find
more facts. But all nine justices disagreed with your handling
of that particular case.
Now, thus, your decision in--I mean, even though it was a 5
to 4 decision, all nine of them disagreed with your handling.
All right. But, as you know, your decision in Ricci v.
DeStefano has become very controversial. People all over the
country are tired of courts imposing their will against one
group or another without justification.
Now, the primary response or defense so far seems to be
that you have no choice because you were bound by clear and
longstanding precedent. Most say you were bound by Second
Circuit precedent; some say it was Supreme Court precedent.
So I need to ask you about this. To be clear, this case
involved not only disparate impact discrimination, but both
disparate treatment and disparate impact. That is what made it
a case of first impression. The city says that they had to
engage in disparate treatment or they would have been sued for
disparate impact. So it was how these two concepts of
discrimination, disparate treatment and disparate impact,
relate in the same case?
The fact of the issue of whether you were bound by clear,
longstanding precedent, as I recall your opinion in this case,
whether it was the summary order or the per curiam opinion, did
not cite any Supreme Court or Second Circuit Court precedent at
all.
Is that right?
Judge Sotomayor. I believe they cited the Bushey case.
Senator Hatch. All right. 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 am wrong. I would be happy
to be corrected.
But didn't the District Court say that this was actually a
very unusual case? This is how the District Court put it.
``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.''
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 did not two of them, the Kirkland and the Bushey cases--
didn't they deal with race norming of test scores, which did
not occur in this case?
Judge Sotomayor. They dealt with when employees could prove
a disparate impact of a case, and it would be----
Senator Hatch. But based upon race norming.
Judge Sotomayor [continuing]. But the principles underlying
when employees could bring a case are the same when they
establish a prima facie case, which is can an employee be
sued--employer be sued by employees who can prove a disparate
impact. And the basic principles of those cases were the same
regardless of what form the practice at issue took.
Senator Hatch. All right. Well, the third case, the Hayden
case, didn't it present a challenge to the design of the
employment test rather than the results of the test?
Judge Sotomayor. I'm sorry. Say this again.
Senator Hatch. The Hayden case, didn't it actually present
a challenge to the design of the case rather than the results
of the--design of the employment test rather than the results
of the test?
Judge Sotomayor. Again, regardless of what the challenge is
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 an employer,
then that employee had a prima facie case of liability under
Title VII.
So the question is, was the city subject to potential
liability because the employees, the city of New Haven, because
the employees could bring a suit under established law
challenging that the city of New Haven had violated Title VII.
So that was the question.
Senator Hatch. All right, as one of the reasons why. It is
a very important case.
When the Second Circuit considered whether to review the
decision en banc, didn't you join an opinion admitting that the
case presents ``difficult issues? ''
Judge Sotomayor. 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 my 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--disparate--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 let them look at this in the first
instance.
Senator Hatch. Well, as I understand it, Judge Cabranes
basically did not 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 en banc review, opens
with these words, ``This appeal raises important questions of
first impression in our circuit, and, indeed, in the Nation,
regarding the implication of the Fourteenth Amendment and Title
VII's prohibition on discriminatory employment practices.''
Was he wrong?
Judge Sotomayor. That was his view. He expressed it in his
opinion on his vote. I can't speak for him. I know that the
panel----
Senator Hatch. I am just asking you to speak for you.
Look, when the Supreme Court reversed you, Justice Kennedy
wrote, ``This action presents two provisions of Title VII to be
interpreted and reconciled with few, if any, precedents in the
Courts of Appeals discussing the issue.''
He was referring to the lack of precedent anywhere in the
country, not just the Second Circuit.
Was he wrong?
Judge Sotomayor. He was talking about whether--I understood
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 non-disparate impact have been
recognized by the courts.
Senator Hatch. Even the District Court felt that this was
an unusual case. And if there was little or no Second Circuit
precedent directly on point for a case like this--one of the
questions I had is why did your panel not just do your own
analysis and your own opinion?
Judge Cabranes pointed out that the per curiam approach
that simply adopts the District Court's reasoning is reserved
for cases that involve only ``straightforward questions that do
not require explanation.''
As I asked you about a minute ago, you yourself joined an
opinion regarding rehearing, saying the case raised difficult
questions.
Now, the issue I am 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--I just can't understand
the claim that you were just sticking to binding, clear,
longstanding precedent when all of that was part of the total
decision and all nine justices found it to be a flaw that you
did not give serious, adequate consideration to what really
turned out to be a case at first impression.
It is easy always to look at these things in retrospect,
and you are under a lot of pressure here. But I just wanted to
cover that case because I think it is important that that case
be covered. And I think it is also important for you to know
how I feel about these type of cases, and I think many here in
the U.S. Senate. These are important cases. These are cases
where people are discriminated against.
Let me just make one last point here. You have nothing to
do with this, I know. But there is a rumor that people for the
American Way, that this organization has been smearing Frank
Ricci, who is only one of 20 plaintiffs in this case, because
he may be willing to be a witness in these proceedings.
I hope that is not true, and I know you have nothing to do
with it. So don't think I am trying to make a point against
you. I am not. I am making a point that that is the type of
stuff that does not belong in Supreme Court nomination
hearings, and I know you would agree with me on that.
Judge Sotomayor. Absolutely, Senator. I would never, ever
endorse, approve or tolerate, if I had any control over
individuals, that kind of conduct.
Senator Hatch. I believe that, and I want you to know I
have appreciated this little time we have had together.
Judge Sotomayor. Thank you, Senator.
Senator Feinstein. Thank you very much, Mr. Chairman. I'm
puzzled why Mr. Estrada keeps coming up.
Mr. Estrada had no judicial experience. The nominee before
us has considerable judicial experience. Mr. Estrada wouldn't
answer questions presented to him. This nominee I think has
been very straightforward. She has not used catchy phrases, she
has answered the questions directly the best she could, and to
me that gets points.
I must say that if there is a test for judicial
temperament, you pass it with an A++. I want you to know that
because I wanted to respond and my adrenaline was moving along
and you have just sat there very quietly and responded to
questions that in their very nature are quite provocative. So I
want to congratulate you about that.
Now, it was just said that all nine Justices disagreed with
you in the Ricci case. But I want to point out that Justice
Ginsburg and three other Justices stated in the dissent that
the Second Circuit decision should have been affirmed. Is that
correct?
Judge Sotomayor. Yes.
Senator Feinstein. Thank you very much. Also a Senator made
a comment about the Second Circuit not being bound in the Ricci
case that I wanted to follow up on because I think what he said
was not correct.
You made the point that the unanimous Ricci panel was bound
by Second Circuit precedent, as we have said. The Senator said
that you easily could have overruled that precedent by voting
for the case to be heard en banc.
First, my understanding is that a majority of the Second
Circuit voted not to rehear the case. Is that correct?
Judge Sotomayor. That's correct.
Senator Feinstein. Second, it took a significant change in
disparate impact law to change the result of the Second Circuit
reached in this case. The Supreme Court itself in Ricci
recognized that it was creating a new standard. Is my
understanding correct?
Judge Sotomayor. Yes, Senator.
Senator Feinstein. You see? So what is happening here,
ladies and gentlemen and members, is that this very reserved
and very factual and very considered nominee is being
characterized as being an activist when she is anything but.
I have a problem with this because some of it is getting
across out there, calls begin to come into my office. Wow,
she's an activist. In my view because you have agreed with your
Republican colleagues on constitutional issues some 98 percent
of the time, I don't see how you can possibly be construed to
be an activist.
By your comments here, and as I walked in the room earlier,
somebody asked you how you see your role and you said, `to
apply the law as it exists with the cases behind it.' That's a
direct quote. It's a very clear statement. It does not say oh,
I think it's a good idea or it does not say any other cliche.
It states a definitive statement.
Later you said, `Precedent is that which gives stability to
the law.' I think that's a very important statement.
What we are talking about here is following precedent. So
let me ask you in a difficult area of the law a question.
The Supreme Court has decided on more than seven occasions
that the law cannot put a woman's health at risk. It said it in
Rowe in `73, in Danforth in `76, in Planned Parenthood in `83,
in Thornburg in `86, in Casey in `92, in Carhart in 2000 and in
Ayotte in 2006.
With both Justices Roberts and Alito on the court, however,
this rule seems to have changed because in 2007 in Carhart 2,
the court essentially removed this basic constitutional right
from women.
Now here is my question. When there are multiple precedents
and a question arises, are all the previous decisions discarded
or should the court reexamine all the cases on point?
Judge Sotomayor. It is somewhat difficult to answer that
question because before the court in any one case is a
particular factual situation. So how the court's precedent
applies to that unique factual situation because often what
comes before the court is something that's different than its
prior decision. Not always, but often.
In the Carhart case, the court looked to its precedence,
and as I understood that case, it was deciding a different
question which was whether there were other means, safer means
and equally effective means for a woman to exercise her right,
the procedure at issue in the case.
That was, I don't believe, a rejection of its prior
precedence. Its prior precedence are still the precedence of
the court. The health and welfare of a woman must be a
compelling consideration.
Senator Feinstein. So you believe that the health of the
woman still exists?
Judge Sotomayor. You mentioned many cases. It has been a
part of the court's jurisprudence and a part of its precedence.
Those precedents must be given deference in any situation that
arises before the court.
Senator Feinstein. Thank you very much. I appreciate that.
I'd also like to ask you your thoughts on how a precedent
should be reviewed. In a rare rebuke of his colleagues, Justice
Scalia has sharply criticized Chief Justice Roberts and Justice
Alito for effectively overruling the court's precedence without
acknowledging that they were doing so.
Scalia wrote in the Hein case, `Overruling prior precedent
is a serious undertaking and I understand the impulse to take a
minimalist approach. But laying just claim to be honoring Stare
Decisis requires more than beating a prior precedent to a pulp
and then sending it out to the lower courts weakened,
denigrated, more incomprehensible than ever and yet somehow
technically alive.'
In Wisconsin, Right to Life v. FEC, he said that Chief
Justice Roberts' opinion, `Effectively overruled a 2003
decision without saying so,' and said this kind of quote follow
judicial restraint was really `judicial obfuscation.'
Here is the question. When the court decides to overrule a
previous decision, is it important that it do so outright and
in a way that is clear to everyone?
Judge Sotomayor. The Doctrine of Starry Decisis which means
stand by a decision, stand by a prior decision, has a basic
premise. That basic premise is that there is a value in society
to predictability, consistency, fairness, evenhandedness in the
law.
This society has an important expectation that judges won't
change the law based on personal whim or not. But they will be
guided by a humility they should show and the thinking of prior
judges who have considered weighty questions and determined as
best as they could given the tools that they had at the time to
establish precedent.
There are circumstances under which a court should
reexamine precedent and perhaps change its direction or perhaps
reject it. But that should be done very, very cautiously and I
keep emphasizing the verys because the presumption is in favor
of deference to precedent.
The question then becomes what are the factors you use to
change it, and then courts have looked at a variety of
different factors, applying each in a balance in determining
where that balance falls at a particular moment.
It is important to recognize, however, that the development
of the law is step by step, case by case. There are some
situations in which there is a principled way to distinguish
precedent from application to a new situation.
No, I do not believe a judge should act in an unprincipled
way, but I recognize that both the Doctrine of Starry Decisis
starts from a presumption that deference should be given to
precedence and that the development of the law is case by case.
It is always a very fine balance.
Senator Feinstein. Thank you very much. I appreciate that.
I wanted to ask a question on Executive Power and national
security. We have seen the executive branch push the boundaries
of power claiming sweeping authority, to disregard acts of
Congress. That's one way to collect communications of Americans
without warrants and to detain people indefinitely without due
process.
Now, the President and literally hundreds of signing
statements affixed to a signature on a bill indicated part of a
bill that he would in essence disregard. He didn't veto the
bill, he signed the bill and said but there are sections that
I--in so many words, will disregard.
Most egregiously in 2005 when Congress passed a bipartisan
bill banning torture, President Bush signed it. But he also
issued a signing statement saying he would only enforce the
law, `Consistent with the Constitutional authority of the
President to supervise the unitary executive branch consistent
with the Constitutional limitations on the judicial power.'
In other words, although he signed the bill, it was widely
interpreted that he was asserting the right not to follow it.
Does the Constitution authorize the President to not follow
parts of laws duly passed by the Congress that he is willing to
sign that he believes are an unconstitutional infringement on
executive authority.
Judge Sotomayor. That's a very broad question.
Senator Feinstein. It is one that we are grappling with,
though.
Judge Sotomayor. And that is why I have to be very cautious
in answering it.
Senator Feinstein. That's fine.
Judge Sotomayor. Because not only is Congress grappling
with this issue, but so are courts by claims being raised by
many litigants who are asserting whether they are right or
wrong would need to be addressed in each individual case that
the President in taking some activity against the individual
has exceeded Congress' authorizations or his powers.
The best I can do in answering your question because there
is so many pending cases addressing this issue in such a
different variety of ways is to say that the best expression of
how to address this in a particular situation was made by
Justice Jackson in his concurrence in the Youngstown seizure
cases. That involved President Truman's seizure of seal
factories.
There, Justice Jackson has sort of set off the framework
and articulation that no one has thought of a better way to
make it.
He says that you always have to look at an assertion by the
president that he or she is acting within executive power in
the context of what Congress has done or not done. He always
starts with first you look at whether Congress has expressly or
implicitly addressed or authorized the president to act in a
certain way.
If the President has, then he is acting at his highest
statute of power.
If the President is acting in prohibition of an express or
implied act of Congress, then he is working at his lowest edge.
If he is acting where Congress hasn't spoken, then we are in
what Justice Jackson called the Zone of Twilight.
The issue in any particular case is always starting with
what Congress says or has not said and then looking at what the
Constitution has, what it says about the powers of the
President minus Congress' powers in that area.
You can't speak more specifically than that in response to
your statement that we are part of your question, other than to
say the President can't act in violation of the Constitution.
No one is above the law.
But what that is in a particular situation has to be looked
at in the factual scenario before the court.
Senator Feinstein. Thank you very much. This is really very
relevant to what we do and we have often discussed this Jackson
case or the steel case. But we just recently passed a Foreign
Intelligence Surveillance Act and one of the amendments,
because I did the amendment, was to strengthen the exclusivity
clause of the law which has been in the bill since the
beginning but that there are no exceptions from which the
President can leave the four corners of this bill. So it will
remain to be seen how that works out over time.
But I can certainly say to you that it's a most important
consideration as we've looked at these matters of national
security.
So let me ask you this. You joined a second circuit opinion
last year that held that the executives should not forbid
companies that received national security letters to tell the
public about those letters.
The panel's opinion in the case said, `The national
security context in which NSL are authorized imposes on courts
a significant obligation to defer to the judgments of executive
branch officials.' But also that under no circumstance should
the judiciary become the hand maiden of the executive. That's
Doe v. Mukasey.
Given that the executive branch has responsibility of
protecting the national security, how should courts balance the
executive branch's expertise in national security matters with
the judicial branches constitutional duty to enforce the
Constitution and prevent abuse of power.
Judge Sotomayor. I can talk about what we did in Doe as
reflective of the approach that we used in that case. It is
difficult to talk about an absolute approach in any case.
Senator Feinstein. I understand.
Judge Sotomayor. Because each case presets its own actions
by parties in its own set of competing considerations often.
In Doe, the District Court had invalidated the
Congressional statute all together, reasoning that the statute
violated the Constitution in a number of different ways and
that those violations did not authorize Congress to act in the
manner it did.
As the panel said that decision recognizing that deference
to the executive is important in national security questions.
In deference to Congress because the District Court was
validating an Act of Congress. We had, as an appellate court,
to be very cautious about what we were doing in this area and
to balance and keep consistent with constitutional requirements
the actions that were being taken.
Giving back due deference, we upheld most of the statute.
What we did was address two provisions of the statute that
didn't pass in our judgment, constitutional muster.
One of them was that the law as Supreme Court precedence
had commanded required that if the government was going to stop
an individual from speaking in this particular context, that
the government had to come to court immediately to get court
approval of that step.
The statute instead required the individual who was
restricted to come and challenge the restriction. We said no,
government is acting. You have a right to speak. If you have a
right to speak, you should know what the grounds for that right
are and you should be told or brought to court to be given an
opportunity to have that restriction lifted.
The other was a question of who wore the burden of
supporting that restriction and the statute held that it was
the individual who was being burdened who had to prove that
there wasn't a reason for it.
The government agreed with our court that that burden
violated Supreme Court precedent and the premises of freedom of
speech and agreed that the burden should not be that way and we
read the statute to explain what the proper burden was.
There is in all of these cases a balance and deference that
is needed to be given to the executive and to Congress in
certain situations. But we are a court that protects the
Constitution and the rights of individuals under it and we must
ensure and act with caution whenever reviewing a claim before
us.
Senator Feinstein. Thank you very much. One question on the
Commerce clause in the Constitution.
That clause as you well know is used to pass laws in a
variety of contexts, from protecting schools from guns to
highway safety to laws on violent crime, child pornography,
laws to prevent discrimination and to protect the environment,
to name just a few examples.
When I questioned now Chief Justice Roberts, I talked about
how for 60 years the court did not strike down a single Federal
law for exceeding Congressional power under the Commerce
clause.
In the last decade, however, the court has changed its
interpretation of the Commerce clause and struck down more than
three dozen case.
My question to the Chief Justice and now to you is do you
agree with the direction the Supreme Court has moved in more
narrowly interpreting Congressional authority to enact laws
under the Commerce clause? General, not relating to any one
case.
Judge Sotomayor. No, I know. But the question assumes a
prejudgment by me of what is an appropriate approach or not in
a new case that may come before me as a Second Circuit judge or
again if I'm fortunate enough to be a Justice on the Supreme
Court. So it is not a case I can answer in a broad statement.
I can say that the court in reviewing congressional acts as
it relates to an exercise of powers under the Commerce clause
has looked at a wide variety of factors and considered that in
different areas.
But there is a framework that those cases have addressed,
and that framework would have to be considered with respect to
each case that comes before the court.
Now, I know that you mentioned a number of different cases
and if you have one in particular that concerns you, perhaps I
could talk about what the framework is that the court
established in those cases.
Senator Feinstein. I will give you one very quickly.
Restricting the distance that somebody could bring a gun close
to a school.
Judge Sotomayor. The Gun Free Zone School Act which the
court struck down with Lopez.
Senator Feinstein. Right, Lopez.
Judge Sotomayor. In that case and in some of its subsequent
cases, the court was examining as I mentioned a wide variety of
factors. They included whether the activity that the government
was attempting to regulate was economic or non-economic,
whether it was an area in which states traditionally regulated,
whether the statute at issue had an interstate commerce
provision as an element of the crime and then considered
whether there was a substantial effect on commerce.
It looked at the congressional findings on that last
element, the court did, and determined that there weren't
enough in the factors that it was looking at to find that that
particular statute was within Congress' powers.
That is the basic approach it has used to other statutes it
has looked at. I would note that its most recent case in this
area, the Raich case. The court did uphold a crime that was
non-economic in the sense of that it involved just the
possession of marijuana.
There it looked at the broader statute in which that
provision was passed and the intent of Congress to regulate a
market in illegal drugs.
So the broad principles established in those cases have
been the court's precedent. Its most recent holding suggests
that another factor purports to look at and each situation will
provide a unique factual setting that the court will apply
those principles to.
Senator Feinstein. One last question on that point. One of
the main concerns is that this interpretation which is much
more restrictive now could impact important environmental laws,
whether it be the Endangered Species Act, the Clean Air Act,
the Clean Water Act or anything that we might even do with cap
and trade.
Judge Sotomayor. In fact there are cases pending before the
courts raising those arguments. So those are issues that the
courts are addressing. I can't speak much more further than
that because of the restrictions on me.
Senator Feinstein. I understand. It is just that Congress
has to have the ability to legislate. In those general areas it
is the Commerce clause that enables that legislation.
Now as you pointed out, you did revise the Lopez case and
make specific findings and perhaps with more care toward the
actual findings that bring about the legislative conclusion
that we might be able to continue to legislate in these areas,
but my hope is that you would go to the court with the
sensitivity that this body has to be able to legislate in those
areas. They involve all of the states and they are very
important questions involving people's well being, control of
the environment, the air, the water, et cetera.
Judge Sotomayor. I do believe that in all of the cases the
court has addressed this issue that it pays particular
attention to congressional findings.
I know that individuals may disagree with what the court
has done in individual cases, but it has never disavowed the
importance of deference to legislative findings with respect to
legislation that it is passing within its powers under the
Constitution.
Senator Feinstein. Thank you. I wish you best of luck.
Thank you very much.
Senator Sessions. Mr. Chairman, I want to correct one
thing. I said I had a letter earlier from Miguel Estrada. That
was not correct. It wasn't a letter.
Chairman Leahy. If we could have a copy of whatever you put
in the record. I did send Mr. Estrada a note last night about
my earlier statement.
Senator Sessions. Well, we both made an error talking about
it.
Chairman Leahy. We should remember that Mr. Estrada is not
the nominee here, just as with all the statements made about
President Obama's philosophy, his confirmation hearing was last
November, not now. It is just you, Judge Sotomayor, and have a
good lunch and we will come back. Who is next? Senator Grassley
will be recognized when we come back in and we will start right
at 2:00.
[Whereupon, at 12:32 p.m., the hearing was recessed.]
After Recess [2 p.m.]
Chairman Leahy. Judge, I once, on a television interview,
said if I could do anything I wanted to do in life, I said,
well, if I ever have to work for a living I want to be a
photographer, because I do. At which point, 2 minutes after the
interview, the phone rings. My mom was still alive. She called.
She said, don't you ever say that. They'll think you don't
work!
[Laughter.]
Chairman Leahy. Actually, I don't. I just recognize
Senators here. You're doing all the work, and I appreciate how
well you're doing it.
I turn, next, to Senator Grassley, and then after Senator
Grassley, to Senator Feingold.
Senator Grassley.
Senator Grassley. Yes. Welcome once again, Judge. I hope
you had a good break. I appreciate very much the opportunity to
ask you some questions.
I'd like to start off my round with some questions about
your understanding of individual property rights and how
they're protected by the Constitution. And let me say, as I
observe property rights around the world, there's a big
difference between developed nations and developing nations,
and respect for private property has a great deal to do with
the advancement of societies.
So I believe all Americans care about this right. They want
to protect their homes and anything they own from unlawful
taking by government. But this is also a right that is
important for agricultural interests. As you know, besides
being a Senator, I come from an agricultural State in Iowa and
am a farmer as well. I'm sure that ordinary Americans, besides
the economic interests that might be involved, are all very
well concerned about where you stand on property rights.
So some of these issues have been discussed, but I want to
go into a little more depth on Kelo, as an example. Could you
explain what your understanding is of the state of the Fifth
Amendment's Taking Clause jurisprudence after the Supreme Court
decision in Kelo? Senator Brownback said this, aptly, when
Chief Justice Roberts was before this committee: ``Isn't it now
the case that it is much easier for one man's home to become
another man's castle? '' Your general understanding of the
Taking Clause.
Judge Sotomayor. Good afternoon, Senator Grassley. And it's
wonderful to see you again.
Senator Grassley. Thank you.
Judge Sotomayor. I share your view of the importance of
property rights under the Constitution. As you know, I was a
commercial litigator that represented national and
international companies, and it wasn't even the case that it
was a difference between developed and under-developed
countries. Many of my clients who were from developed countries
chose to, in part, to invest in the United States because of
the respect that our Constitution pays to property rights in
its various positions, in its various amendments.
With respect to the Kelo question, the issue in Kelo, as I
understand it, is whether or not a State who had determined
that there was a public purpose to the takings under the
Takings Clause of the Constitution that requires the payment of
just compensation when something is--is condemned for use by
the government, whether the Takings Clause permitted the State,
once it's made a proper determination of public purpose and use
according to the law, whether the State could then have a
private developer do that public act, in essence. Could they
contract with a private developer to effect the public purpose?
And so the holding, as I understood it in Kelo, was a question
addressed to that issue.
With respect to the importance of property rights and the
process that the State must use, I just point out to you that
in another case involving that issue that came before me in a
particular series of cases that I had involving a village in
New York, that I--I ruled in favor of the property rights--the
property owner's rights to challenge the process that the State
had followed in his case and to hold that the State had not
given him adequate notice of their intent to use the property--
well, not adequate notice not to use the property, but to be
more precise, that they hadn't given him an adequate
opportunity to express his objection to the public taking in
that case.
Senator Grassley. Could I zero in on two words in the Kelo
case? The Constitution uses the word ``use'', ``public use'',
whereas the Kelo case talked about taking private property for
public purpose. In your opinion, is public use and public
purpose the same thing?
Judge Sotomayor. Well, as I understood the Supreme Court's
decision in Kelo, it was looking at the court's precedents over
time and determining that its precedents had suggested that the
two informed each other, that public purpose in terms of
developing an area that would have a public improvement and
use, that the two would inform each other.
Senator Grassley. Do you believe that the Supreme Court
overstepped their constitutional authorities when they went
beyond the words of the Constitution, in other words, to the
word ``purpose'', and thus expanded the ability of government
to take an individual's private property? Because I think
everybody believes that Kelo was an expansion of previous
precedent there.
Judge Sotomayor. I know that there are many litigants who
have expressed that view, and in fact there's been many State
legislators that have passed State legislation not permitting
State governments to take in the situation that the Supreme
Court approved of in Kelo.
The question of whether the Supreme Court overstepped the
Constitution, as I've indicated, the court--at least my
understanding of the majority's opinion--believed and explained
why it thought not. I have to accept, because it is precedent,
that as precedent and so I can't comment further than to say
that I understand the questions and I understand what State
legislatures have done----
Senator Grassley. Okay.
Judge Sotomayor. And would have to await another situation,
or the court would, to apply the holding in that case.
Senator Grassley. Then I think that answers my next
question, but it was going to be to ask you whether you think
that Kelo improperly undermines the constitutionally protected
private property rights. I presume you're saying that you
believe that's what the court said and it doesn't undermine
property rights?
Judge Sotomayor. I can only talk about what the--the court
said in the context of that particular case and to explain that
it is the court's holding, and so it's entitled to stare
decisis effect and deference.
Senator Grassley. Okay. Okay.
Judge Sotomayor. But the extent of that has to await the
next step, the next cases.
Senator Grassley. Okay. Well, then maybe it would be fair
for me to ask you, what is your understanding of the
constitutional limitations then on government entity--any
government entity taking land for a public purpose?
Judge Sotomayor. Well, that was the subject of much
discussion in the Kelo case among the Justices, and with
certain Justices in the dissent, hypothesizing that the limits
were difficult to see, the majority taking the position that
there were limits. As I've indicated to you, opining on a
hypothetical is very, very difficult for a judge to do.
Senator Grassley. Okay.
Judge Sotomayor. And as a potential--as a potential Justice
on the Supreme Court, but more importantly as a Second Circuit
Judge still sitting, I can't engage in a question that involves
hypotheses.
Senator Grassley. Let me ask you a couple obvious, then.
Does the--does the Constitution allow for takings without any
compensation?
Judge Sotomayor. Well, it--the Constitution provides that
when the government takes it has to pay compensation. As you
know, the question of what constitutes an actual taking is a
very complex one because there is a difference between taking a
home and regulation that may or may not constitute a taking. So
I'm not at all trying to not answer your question, Senator.
Senator Grassley. Okay. Well, then let me ask you another
question that maybe you can answer. Would you strike down a
takings that provided no compensation at all?
Judge Sotomayor. Well, as I explained, if the taking
violates the Constitution, I would be required to--to strike it
down.
Senator Grassley. Okay. Let me move on to the Didden case
v. Village of Port Chester. It raised serious concerns about
whether you understand the protection provided by the
Constitution for individual property rights. In this case, Mr.
Didden alleged that his local village government violated his
Fifth Amendment rights when it took his property to build a
national-chain drugstore. At a meeting with a government
agency, another developer, Mr. Didden was told that he could
give the developer $800,000 or a 50 percent interest in his
pharmacy project, and if Mr. Didden did not accept either
condition, the government would simply take his property.
Two days after Mr. Didden refused to comply with these
demands, the government began proceeding to take his land. The
District Court denied Mr. Didden his day in court, and your
panel affirmed that decision in a five-paragraph opinion.
Why did you deny Mr. Didden his day in court? How can these
facts--in essence, allegations of extortion--at least not
warrant the opportunity to call witnesses to see if Mr. Didden
was telling an accurate story?
Judge Sotomayor. The Didden case presented a narrow issue
that the court below----
[Interruption by the audience.]
Chairman Leahy. Officer, remove that man immediately. We
will stand in order. We will stand in order. Officers will
remove that man.
[Laughter.]
Chairman Leahy. Again, both Senator Sessions and I have
said, as all previous Chairs and Ranking Members of this have
said, this is a hearing of the U.S. Senate. The judge deserves
respect. Senators asking questions deserve respect. I will
order the removal of anyone who disrupts it, whether they are
supportive of the nominee or opposed to the nominee, whether
they are supportive of a position I take, or opposed to it. We
will have the respect that should be accorded to both the
nominee and to the U.S. Senate.
Senator Sessions. Thank you, Mr. Chairman. I think you've
handled this well throughout, and I support you 100 percent.
Chairman Leahy. Thank you.
Senator Grassley, we did stop the clock there so it did not
take from your time.
Senator Grassley. Thank you. People always say I have the
ability to turn people on.
[Laughter.]
Senator Grassley. Maybe you could start over again with
your--with your sentence, please.
Judge Sotomayor. Yes.
Chairman Leahy. Now, where were we?
Judge Sotomayor. I hope I remember where we were.
[Laughter.]
Senator Grassley. Okay.
Judge Sotomayor. Senator, the right of property owners to
have their day in court is a very important one, but there is a
corollary to the right to have your day in court, which is that
you have to bring it to court in a timely manner.
Senator Grassley. Okay.
Judge Sotomayor. Because people who are relying on your
assertion of rights should know when you're going to make them.
And so there's a doctrine called the Statute of Limitations
that says if a party knows, or has reason to know, of their
injury, then that party has to come in to court and raise their
arguments within that statute that sets the limits of the
action.
Senator Grassley. I----
Judge Sotomayor. In the Didden case--oh, I'm sorry.
Senator Grassley. No. No, no, no.
Judge Sotomayor. No, no, no.
Senator Grassley. Please, I interrupted you. I shouldn't
have interrupted you.
Judge Sotomayor. No. I--I----
Senator Grassley. Please go----
Judge Sotomayor. In the Didden case----
Senator Grassley. Yeah.
Judge Sotomayor [continuing]. The question was whether Mr.
Didden knew that the State was intending to take his property,
and for what it, the State, claimed was a public use and that
it had plans to have a private developer take his--they take
his property and the private developer develop the land.
So there was a full hearing by the village on this question
of whether there was a public use of the land. Mr. Didden
didn't claim in the action before the courts that he didn't
have notice of that hearing, he did not raise a challenge in
that hearing to the public taking, and he didn't raise a
challenge to the State's intent to have a private developer
develop the land.
Now, in that case the developer was developing not just Mr.
Didden's property, it was one piece of property in a larger
development project and that larger development project had
been based on the village's conclusions, from its very lengthy
hearings in accordance with New York law, that the area was
blighted and that the area needed economic development.
So, too, that issue became the issue before the court in
the sense of, had Mr. Didden, knowing that he could be injured
by the State's finding of public use and the State's decision
to let a private developer develop this land, did he bring his
lawsuit in a timely manner?
Senator Grassley. Well----
Judge Sotomayor. And the court below, and our court, ruled
on that basis, that he hadn't because he had reason to know
about the injury that could occasion--that could come to him.
Senator Grassley. Well, since Mr. Didden's claim was based
on conduct of the developer, how could he ever have filed a
successful claim under the standard that you just mentioned?
Judge Sotomayor. Mr. Didden alleged in his complaint that
the private developer had extorted him. Extortion, under the
law, is defined as ``an unlawful demand for money''. On this
one piece of property within a larger development that the
private developer was actively engaged in doing what he had
contracted with the State to do, to revive the economic base by
making investments in it, the private developer knew that Mr.
Didden has his claims.
The private developer had his agreement with the State, and
so he was doing, in--at least this was the private developer's
argument--what he was entitled to do, which is to say, we
disagree. I'm claiming that I have a right under contract,
you're claiming that you have a right under the Takings Clause.
Let's settle this. I am going to lose X amount of money, so you
pay me back for me not to do what I'm entitled to do under the
law.
That, however, was--those were the claims of the parties in
the action. In the end, the decision of the court was, if you
believe that the takings of your property were not proper under
the public use, under the Takings Clause, and you knew that the
State had entered a contract with this private developer, then
you had knowledge that you could be injured and you should have
come to court earlier.
Senator Grassley. Why was the situation in Didden not the
kind of prohibited pretextual taking articulated in Kelo? How
was this not some sort of form of extortion? And if there
wasn't a pretext in the Didden case where the developer says
``give me the money personally or we'll take your land'', then
what is a pretext?
Judge Sotomayor. Well, as I--as I have described the case--
--
Senator Grassley. Yes, I understand.
Judge Sotomayor. The question comes up in the context of,
what did Mr. Didden know? Did he have enough to know he could
be injured? Was there no public use to which the property would
apply, and what rights did the private developer have with the
State? And so the extortion question came up in a legal context
surrounding the relative rights of the parties. So as I said,
extortion is a term, a legal term, which is someone demanding
money with no lawful claim to it. I'm simplifying this because
there's different definitions of extortion that apply to
different situations.
Senator Grassley. Sure.
Judge Sotomayor. But in the context of this case, that's
the simplest description of the case, I believe.
Senator Grassley. The Second Circuit panel in Didden took
over a year to issue its ruling, suggesting that you understood
the novelty and importance of this case. Yet your opinion dealt
with Mr. Didden's Fifth Amendment claim in just one paragraph.
Did you believe that this was an ordinary takings case?
Judge Sotomayor. Well, cases present claims by parties, and
to the extent that Mr. Didden was raising claims that sounded
in the issues the court was looking at in Kelo, certainly if
Kelo had not come out and the court had to--for whatever
reason, determined that somehow the Kelo decision affected the
Statute of Limitations question, it may have had to reach the
question.
But courts do often wait for Supreme Courts to act on cases
that are pending in order to see if some form of its analysis
changes or not, or inform whether a different look should be
given to the case. But on the bottom-line issue, Kelo didn't
change, in the judgment of the panel, the Statute of
Limitations question.
Senator Grassley. Okay. Regardless of the Statute of
Limitations, I am curious why you didn't elaborate on your Kelo
analysis, and why wasn't this opinion published?
Judge Sotomayor. Well, Kelo didn't control the outcome, the
Statute of Limitations did, so there was no basis to go into an
elaborate discussion of Kelo. The discussion of Kelo, really,
was to say that we had understood the public taking issue that
Mr. Didden had spent a lot of time in his argument about, but
the ruling was based on the narrow Statute of Limitations
ground so the Kelo discussion didn't need to be longer because
it wasn't the holding of the case. The holding of the case was
the Statute of Limitations.
Senator Grassley. Okay. This--on another case, the Supreme
Court reversed you 6:3 just 3 months ago in Entergy Corporation
v. Riverkeeper. You had held that the Environmental Protection
Agency, which is the agency with expertise, could not use a
cost-benefit analysis in adopting regulations from the
construction of water structures that had an impact on fish.
Rather, you interpreted the Clean Water Act to hold that EPA
had to require upgrades to technology that achieved the
greatest reduction in adverse environmental impact, even when
the cost of those upgrades were disproportionate to benefit.
Following long-established precedent, the Supreme Court
held that the EPA was reasonable in applying a cost-benefit
analysis when adopting regulations under the Clean Water Act.
In reversing, the Supreme Court questioned your proper
application of subtle law that agency regulations should be
upheld so long as they're reasonable.
Under Chevron, agency interpretation of statutes are
entitled to deference so long as they are reasonable, in other
words, if they aren't capricious and arbitrary. Do you find it
unreasonable that the EPA was willing to allow money to be
spent in a cost-effective manner by not requiring billions of
additional dollars to be spent to save a minimal number of
additional fish?
Judge Sotomayor. To be able to answer your question I would
need to explain a little bit more about the background.
The Supreme Court has now ruled in that case that the
conclusion of the Second Circuit would not be upheld on this
narrow question, but the question the Second Circuit was
looking at is, what did Congress intend or mean when, in the
statute at issue, it said that the agency had to use the ``best
technology available to minimize an adverse environmental
impact''. Those were the statute's words. In looking at that,
the Circuit applied general statutory construction principles,
which is, in our judgment, what was the ordinary meaning of
that? And----
Senator Grassley. Are you saying you're not bound by
Chevron, then?
Judge Sotomayor. Oh, no. Absolutely not.
Senator Grassley. Okay. Okay. Go ahead.
Judge Sotomayor. Chevron speaks to agency action or
interpretation, but ultimately the task of a court is to give
deference to what Congress wants. That's the very purpose of
Congress' legislation. And so what the court was trying to do
there was to see if the agency's interpretation, in light of
the words of the statute and how Congress has used cost-benefit
analysis in other statutes in this area, and determine what
Congress intended. And so we looked at the language and it said
just what it said, ``best technology available to minimize
adverse environmental impact''.
We looked at how Congress used cost-benefit in similar
statutes and similar provisions--or I shouldn't say similar, in
other provisions. We noted that under the statutes at issue
when Congress wanted the agency to use cost-benefit analysis,
it said so. In this provision, Congress was silent but the
language, in the panel's judgment, was the language.
And so in trying to discern what Congress' intent was, we
came to the conclusion not that cost had no role in the
agency's evaluation, but that Congress had specified a more
limited role that cost-benefit. We described it as cost-
effectiveness. And, in fact, we voted to--voted past our
decision, asked and sent the case back to describe to us
exactly what the agency had done, and why. Had it used cost-
benefit? Had it used cost-effectiveness? But cost was always
going to be a part of what the agency could consider. The issue
was more, in what approach did Congress' words intend? And so
agency deference is important, but Congress is the one who
writes the statutes so you have to start as a court with, what
did Congress intend?
Senator Grassley. It seems to me like you're saying, in
ignoring the expertise of the statute, that the agency was
being arbitrary and capricious in----
Judge Sotomayor. Not--not at all, sir. We were trying to
look at the statute as a whole and determine what Congress
meant by words that appeared to say that ``best technology
available had to minimize environmental effect''.
Senator Grassley. Okay.
Judge Sotomayor. As I said, that does have--and as our
opinion said--considerations of cost. But given that Congress
didn't use the cost-benefit--give the agency cost-benefit
approval in the terms of this particular provision while it had
in others, we determined that the agency and precedent
interpreting provisions limited the use of cost-benefit
analysis.
Senator Grassley. In another 2004 administrative law case
dealing with environmental issues, NRDC v. Abraham, you voted
to strike down a Bush administration regulation and reinstate a
Clinton administration environmental rule that had never even
become final. In this case it appears you also fairly narrowly
interpreted Chevron deference when striking down EPA adoptions
of reasonable regulations.
If you are elevated to the Supreme Court, do you intend to
replace an agency's policy decisions with your own personal
policy opinions as it appears you did in both--in the Abraham
case?
Judge Sotomayor. No, sir. In that case we were talking
about, and deciding, an issue of whether the agency had
followed its own procedures in changing policy. We weren't
substituting our judgment for that of the agency, we were
looking at the agency's own regulations as to the procedure
that it had to follow in order to change an approach by the
agency. So, that was a completely different question. With
respect to deference to administrative bodies, in case after
case where Chevron deference required deference, I have voted
in favor of upholding administrative--executive and
administrative decisions.
Senator Grassley. Okay. This will probably have to be my
last question.
Since 2005, you have been presiding judge on the panel of
an appeal filed by eight States and environmental groups,
arguing that greenhouse gases are a public nuisance that
warrant a court-imposed injunction to reduce emissions. Your
panel, in Connecticut v. American Electric Power, has sat on
that case for 45 months, or nearly three times the average of
the Second Circuit. Why, after 4 years, have you failed to
issue a decision in this case?
Judge Sotomayor. The American Bar Association rule on Code
of Conduct does not permit me to talk about a pending case. I
can talk to you about one of the delays for a substantial
period of time in that decision, and it was that the Supreme
Court was considering a case, the Massachusetts case, that had
some relevancy, or at least had relevancy to the extent that
the panel asked the parties to brief further the applicability
of that case to that decision.
Senator Grassley. Okay. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Grassley.
Senator Feingold.
Senator Feingold. Judge, let me first say I don't mind
telling you how much I'm enjoying listening to you, both your
manner and your obvious tremendous knowledge and understanding
of the law. In fact, I am enjoying it so much that I hope when
you go into these deliberations about cameras in the courtroom,
that you consider the possibility that I, and other Americans,
would like the opportunity to observe your skills for many
years to come in the comfort of our family rooms and living
rooms. I think it's a----
[Laughter.]
Judge Sotomayor. You were a very good lawyer, weren't you,
Senator?
[Laughter.]
Senator Feingold. But I'm not going to ask you about that
one now; others have covered it. Let me get into a topic that I
discussed at length with the two most recent Supreme Court
nominees, Chief Justice Roberts and Justice Alito, and that's
the issue of executive power.
In 2003, you spoke at a law school class about some of the
legal issues that have arisen since 9/11. You started your
remarks with a moving description of how Americans stood
together in the days after those horrific events, and how
people from small Midwestern towns and people from New York
City found ``their common threads as Americans,'' you said.
As you said in that speech, while it's hard to imagine that
something positive could ever result from such a tragedy, there
was a sense in those early days of coming together as one
community that we would all help each other get through this.
It was something that none of us had ever experienced before,
and something I've often discussed as well.
But what I have also said is that, in the weeks and months
that followed, I was gravely disappointed that the events of
that awful day, the events that had brought us so close
together as one nation, were sometimes used, Judge, to justify
policies that departed so far from what America stands for.
So I'm going to ask you some questions that I asked now-
Chief Justice Roberts at his hearing. Did that day, 9/11,
change your view of the importance of individual rights and
civil liberties and how they can be protected?
Judge Sotomayor. September 11th was a horrific tragedy, for
all of the victims of that tragedy and for the nation. I was in
New York. My home is very close to the World Trade Center. I
spent days not being able to drive a car into my neighborhood
because my neighborhood was used as a staging area for
emergency trucks.
The issue of the country's safety and the consequences of
that great tragedy are the subject of continuing discussion
among not just Senators, but the whole nation. In the end, the
Constitution, by its terms, protects certain individual rights.
That protection is often fact-specific. Many of its terms are
very broad: so what's an unreasonable search and seizure? What
are other questions are fact-specific.
But in answer to your specific question, did it change my
view of the Constitution, no, sir. The Constitution is a
timeless document. It was intended to guide us through decades,
generation after generation, to everything that would develop
in our country. It has protected us as a nation, it has
inspired our survival. That doesn't change.
Senator Feingold. I appreciate that answer, Judge.
Are there any elements of the government's response to
September 11th that you think, maybe 50 or 60 years from now,
we as a nation will look back on with some regret?
Judge Sotomayor. I'm a historian by undergraduate training.
I also love history books. It's amazing how difficult it is to
make judgments about one's current positions. That's because
history permits us to look back and to examine the actual
consequences that have arisen, and then judgments are made. As
a Judge today, all I can do, because I'm not part of the
legislative branch--it's the legislative branch who has the
responsibility to make laws consistent with that branch's view
of constitutional requirements in its powers. It's up to the
President to take his actions, and then it's up to the court to
just examine each situation as it arises.
Senator Feingold. I can understand some hesitance on this.
But the truth is that courts are already dealing with these
very issues. The Supreme Court itself has now struck down a
number of post-9/11 policies, and you yourself sat on a panel
that struck down one aspect of the National Security Letter
statutes that were expanded by the PATRIOT Act.
So I'd like to hear your thoughts a bit on whether you see
any common themes or important lessons in the court's decisions
in Rasul, Hamdi, Hamdan, and Boumediene. What is your general
understanding of that line of cases?
Judge Sotomayor. That the court is doing its task as
judges. It's looking, in each of those cases, at what the
actions are of either the military, and what Congress has done
or not done, and applied constitutional review to those
actions.
Senator Feingold. And is it fair to say, given that line of
cases, that we can say that, at least as regards the Supreme
Court, it believes mistakes were made with regard to post-9/11
policies? Because in each of those cases there was an
overturning of a decision made either by the Congress or the
executive.
Judge Sotomayor. I smiled only because that's not the way
that judges look at that issue. We don't decide whether
mistakes were made, we look at whether action was consistent
with constitutional limitations or statutory limitations.
Senator Feingold. And in each of those cases there was a
problem with either a constitutional violation or a problem
with a congressional action, right?
Judge Sotomayor. Yes.
Senator Feingold. That's fine.
As I'm sure you are aware, many of us on the Committee
discussed at length with the prior Supreme Court nominees the
framework for evaluating the scope of executive power in the
national security context. You already discussed this at some
length with Senator Feinstein, including Justice Jackson's test
in the Youngstown case.
And I and others on the Committee are deeply concerned
about the very broad assertion of executive power that has been
made in recent years--an interpretation that has been used to
authorize the violation of clear statutory prohibitions--from
the Foreign Intelligence Surveillance Act, to the anti-torture
statute.
You discussed with Senator Feinstein the third category,
the lowest ebb category in the Youngstown framework, and that's
where, as Justice Jackson said, the President's power is at its
lowest ebb because Congress has, as you well explained it,
specifically prohibited some action.
I take the point of careful scholars who argue that,
hypothetically speaking, Congress could conceivably pass a law
that is plainly unconstitutional. For example, if Congress
passed a law that said that somebody other than the President
would be the Commander-in-Chief of a particular armed conflict
and not subject to Presidential direction, presumably that
would be out of bounds.
But setting aside such abstract hypotheticals, as far as
I'm aware--and I'm pretty sure this is accurate--the Supreme
Court has never relied on the Youngstown framework to conclude
that the President may violate a clear statutory prohibition.
In fact, in Youngstown itself, the court rejected President
Truman's plan to seize the steel mills.
Now, is that your understanding of the Supreme Court
precedent in this area?
Judge Sotomayor. I haven't had cases--or a sufficient a
number of cases--in this area to say that I can remember every
Supreme Court decision on a question related to this topic. As
you know, in the Youngstown case, the court held that the
President had not acted within his powers in seizing the steel
mills in the particular situation existing before him at the
time.
But the question or the framework doesn't change, which is,
each situation would have to be looked at individually because
you can't determine ahead of time with hypotheticals what a
potential constitutional conclusion will be. As I may have said
to an earlier question, academic discussion is just that. It's
presenting the extremes of every issue and attempting to debate
about, on that extreme of the legal question, how should the
judge rule?
Senator Feingold. I'll concede that point, Judge. I mean,
given your tremendous knowledge of the law and your
preparation, I'm pretty sure you would have run into any
example of where this had happened. And I just want to note
that I am unaware of--and if anybody is aware of an example of
where something was justified under the President's power under
the lowest ebb, I'd love to know about it. But I think that's
not a question of a hypothetical, that's a factual question
about what the history of the case law is.
Judge Sotomayor. I can only accept your assumption. As I
said, I--I have not had sufficient cases to--to--to have looked
at what I know in light of that particular question that you're
posing.
Senator Feingold. All right.
In August 2002, the Office of Legal Counsel at the
Department of Justice issued two memoranda considering the
legal limits on interrogation of terrorism detainees. One of
these contained a detailed legal analysis of the criminal law
prohibiting torture. It concluded, among other things, that
enforcement of the anti-torture statute would be an
unconstitutional infringement on the President's Commander-in-
Chief authority.
Judge, that memo did not once cite to the Youngstown case
or to Justice Jackson's opinion in Youngstown. We just learned
on Friday, in a new Inspector General report, that a November
2001 OLC memo providing the legal basis for the so-called
Terrorist Surveillance Program also did not cite Youngstown.
Now, I don't think you would have to be familiar with those
memos to answer my question. Does it strike you as odd that a
complex legal analysis of the anti-torture statute, or the FISA
Act, that considers whether the President could violate those
statutes would not even mention the Youngstown case?
Judge Sotomayor. I have never been an advisor to a
President. That's not a function I have served, so I don't want
to comment on what was done or not done by those advisors in
that case. And it's likely that some question--and I know some
are pending before the court in one existing case, so I can't
comment. All I can--on whether that's surprising or not. I can
only tell you that I would be surprised if a court didn't
consider the Youngstown framework in a decision involving this
question because it is--that case's framework is how these
issues are generally approached.
Senator Feingold. Good. I appreciate that answer.
Let me go to a topic that Senator Leahy and Senator Hatch
discussed with you at some length: the Second Amendment.
I have long believed that the Second Amendment grants
citizens an individual right to own firearms. Frankly, I was
elated when the court ruled in Heller last year, and unified
what I think had been a mistake all along and recognized it as
an individual right.
The question of whether Second Amendment rights are
incorporated in the Fourteenth Amendment's guarantee of due
process of law, and therefore applicable to the states, as you
pointed out, was not decided in Heller. A Supreme Court
decision in 1886 specifically held that the Second Amendment
applies only to the federal government.
So in my view, it is unremarkable that, as a Circuit Court
judge in the Maloney case, you would follow applicable Supreme
Court precedent that directly controlled the case rather than
apply your own guess of where the court may be headed after
Heller. In other words, I think that's would be an unfair
criticism of a case, and I think you needed to rule that way,
given the state of the law.
But let me move on from that, because many of my
constituents would like to know more about how you would make
such a decision as a member of the highest court, so I want to
follow up on that. First of all, am I right that if you're
confirmed and the court grants cert in the Maloney case, you
would have to recuse yourself from its consideration?
Judge Sotomayor. Yes, sir. My own judgment is that it would
seem odd, indeed, if any Justice would sit in review of a
decision that they authored. I would think that the Judicial
Code of Ethics that govern recusals would suggest and command
that that would be inappropriate.
Senator Feingold. Fair enough.
What about if one of the other pending appeals comes to the
court, such as the Seventh Circuit decision in NRA v. Chicago,
which took the same position as your decision in Maloney? Would
you have to recuse yourself from that one as well?
Judge Sotomayor. There are many cases in which a Justice, I
understand, has decided cases as a Circuit Court judge that are
not the subject of review that raise issues that the Supreme
Court looks at later. What I would do in this situation, I
would look at the practices of the Justices to determine
whether or not I--that would counsel to--to recuse myself. I
would just note that many legal issues, once they come before
the court, present a different series of questions than the one
one addresses as a Circuit Court.
Senator Feingold. Well, let's assume you were able to sit
on one of these cases or a future case that deals with this
issue of incorporating the right to bear arms as applied to the
states.
How would you assess whether the Second Amendment, or any
other amendment that has not yet been incorporated through the
Fourteenth Amendment, should be made applicable to the States?
What's the test that the Supreme Court should apply?
Judge Sotomayor. That's always the issue that litigants are
arguing in litigation. So to the extent that the Supreme Court
has not addressed this question yet, and there's a strong
likelihood it may in the future, I can't say to you that I've
prejudged the case and decided this is exactly how I'm going to
approach it in that case.
Senator Feingold. But what would be the general test for
incorporation?
Judge Sotomayor. Well----
Senator Feingold. I mean, what is the general principle?
Judge Sotomayor. One must remember that the Supreme Court's
analysis in its prior precedent predated its principles of--or
the development of cases discussing the incorporation doctrine.
Those are newer cases, and so the framework established in
those cases may well inform.
Senator Feingold. Okay.
Judge Sotomayor. As I said, I--I am hesitant of prejudging
and saying they will or won't, because that will be what the
parties are going to be arguing in the litigation.
Senator Feingold. Well, it----
Judge Sotomayor. But it is--I'm sorry.
Senator Feingold. No, no. Go ahead.
Judge Sotomayor. No. I was just suggesting that I do
recognize that the court's more recent jurisprudence in
incorporation with respect to other amendments has taken--has
been more recent, and those cases, as well as stare decisis and
a lot of other things, will inform the court's decision on how
it looks at a new challenge to a State regulation.
Senator Feingold. And, of course, it is true that despite
that trend that you just described, the Supreme Court has not
incorporated several constitutional amendments as against the
states, but most of those are covered by constitutional
provisions and state constitutions, and the Supreme Court
decisions that refuse to--incorporate the federal
constitutional protections like the case involving the Second
Amendment, a 19th century case, date back nearly a century.
So after Heller, doesn't it seem almost inevitable that
when the Supreme Court again considers whether the Second
Amendment applies to the states, it will find the individual
right to bear arms to be fundamental, which is a word that
we've been talking about today? After all, Justice Scalia's
opinion said this: ``By the time of the founding, the right to
have arms--bear arms had become fundamental for English
subjects.''
Blackstone, whose works we have said constituted the
preeminent authority on English law for the founding
generation, cited the arms provision in the Bill of Rights as
one of the fundamental rights of Englishmen. ``It was,'' he
said, ``the natural right of resistance and self-preservation
and the right of having and using arms for self-preservation
and defense.''
Judge Sotomayor. As I said earlier, you are a very eloquent
advocate. But a decision on what the Supreme Court will do and
what's inevitable will come up before the Justices in great
likelihood in the future, and I feel that I'm threading the
line----
Senator Feingold. Okay.
Judge Sotomayor [continuing]. Of answering a question about
what the court will do in a case that may likely come before it
in the future.
Senator Feingold. Let me try it in a more--less lofty way
then.
[Laughter.]
Senator Feingold. You talked about nunchucks before.
Judge Sotomayor. Okay.
[Laughter.]
Senator Feingold. That's an easier kind of case. But what
Heller was about, was that there was a law here in DC that said
you couldn't have a handgun if you wanted to have it in your
house to protect yourself. It is now protected under the
Constitution that the citizens of the District of Columbia can
have a handgun.
Now, what happens if we don't incorporate this right and
the people of the State of Wisconsin--let's say we didn't have
a constitutional provision in Wisconsin. We didn't have one
until the 1980s, when I and other State Senators proposed that
we have a right to bear arms provision. But isn't there a
danger here that if you don't have this incorporated against
the States, that we'd have this result where the citizens of DC
have a constitutional right to have a handgun, but the people
of Wisconsin might not have that right? Doesn't that make it
almost inevitable that you would have to apply this to the
states?
Judge Sotomayor. It's a question the court will have to
consider.
Senator Feingold. I appreciate your patience.
Judge Sotomayor. And it's meaning----
[Laughter.]
Judge Sotomayor. Senator, the Supreme Court did hold that
there is, in the Second Amendment, an individual right to bear
arms, and that is its holding and that is the court's decision.
I fully accept that. In whatever new cases come before me that
don't involve incorporation as a Second Circuit judge, I would
have to consider those--those issues in the context of a
particular State regulation of firearms or other instruments.
Senator Feingold. I accept that answer.
I'm going to move on to another area, what I'd like to call
``secret law'', that is, the development of controlling legal
authority that has direct effects on the rights of Americans
but that is done entirely in secret. There are two strong
examples of that. First, the FISA court often issues rulings
containing substantive interpretation of the Foreign
Intelligence Surveillance Act, or FISA, that with very few
exceptions have been kept from the public, and until a recent
change in the law, many of them were not available to the full
Congress either, meaning that members had been called upon to
vote on statutory changes without knowing how the court had
interpreted the existing statute. Second, the Office of Legal
Counsel at the Justice Department issues legal opinions that
are binding on the executive branch, but are also often kept
from the public and Congress.
Now, I understand that these legal documents may sometimes
contain classified operational details that would need to be
redacted, but I'm concerned that the meaning of a law like
FISA, which directly affects the privacy rights of Americans,
could develop entirely in secret. I think it flies in the face
of our traditional notion of an open and transparent American
legal system.
Does this concern you at all? Can you say a little bit
about the importance of the law itself being public?
Judge Sotomayor. Well, the question for a judge as a judge
would look at it, is to examine, first, what policy choices the
Congress is making in its legislation. It is important to
remember that some of the issues that you are addressing were
part of congressional legislation as to how FISA would operate.
And as you just said, there's been amendments subsequent to
that, and so a court would start with what Congress has--what
Congress has done and whether the acts of the other branch of
government is consistent with that or not.
The issue of whether, and how, a particular document would
affect national security or affect questions of that nature
would have to be looked at in--with respect to an individual
case. And as I understand it, there are review processes in the
FISA procedure. I'm not a member of that court, so I am not
intimately familiar with those procedures, but I know that this
is part of the review process there, in part.
And so when you ask concern, there is always some attention
paid to the issue of--of the public reviewing or looking at the
actions that a court is taking, but that also is tempered with
the fact that there are situations in which complete openness
can't be had, for a variety of different reasons.
So courts--I did as a District Court judge and I have as a
Circuit Court judge--looked at situations in which judges have
to have determined whether juries should be empaneled
anonymously, and in those situations we do consider the need
for public actions, but we also consider that there may be, in
some individual situations, potential threats to the safety of
jurors that require an anonymous jury.
I am attempting to speak about this as--it's always a
question of balance----
Senator Feingold. What most concerns----
Judge Sotomayor [continuing]. And you have to look at,
first, what Congress says about that.
Senator Feingold. The concerns you just raised, don't they
have to do more with the facts that shouldn't be revealed than
the legal basis? It's sort of hard for me to imagine a threat
to national security by revealing properly redacted documents
as simply referred to the legal basis for something. Isn't
there a distinction between those two things?
Judge Sotomayor. I can't--it's difficult to speak from the
abstract, in large measure, because as I explained, I've never
been a part of the FISA court and so I've never had the
experience of reviewing what those documents are and whether
they, in fact, can be redacted or not without creating risk to
national security. One has to think about what the--what
explanations the government has. There's so many issues a court
would have to look at.
Senator Feingold. Let me go to something completely
different. There's been a lot of talk about this concept of
empathy. In the context of your nomination, a judge's ability
to feel empathy does not mean the judge should rule one way or
another, as you well explained. But I agree with President
Obama that it's a good thing for our country for judges to
understand the real-world implications of their decisions and
the effects on regular Americans, and to seek to understand
both sides of an issue.
Judge, your background is remarkable. As you explained
yesterday, your parents came to New York from Puerto Rico
during World War II, and after your father died your mother
raised you on her own in a housing project in the South Bronx.
You are a lifelong New Yorker and a Yankee fan, as I understand
it. But many Americans don't live in big cities. Many of my
constituents live in rural areas and small towns--and they root
for the Brewers and the Packers. Some might think that you
don't have a lot in common with them.
What can you tell me about your ability as a judge to
empathize with them--to understand the everyday challenges of
rural and small-town Americans and how Supreme Court decisions
might affect their lives?
Judge Sotomayor. Yes, I live in New York City and it is a
little different than other parts of the country, but I spend a
lot of time in other parts of the country. I've visited a lot
of States. I've stayed with people who do all types of work.
I've lived on--not lived, I've visited and vacationed on farms.
I've lived and vacationed in mountaintops. I've lived and
vacationed in all sorts--not lived. I'm using the wrong word.
I've visited all sorts of places.
In fact, one of my habits is, when I travel somewhere new,
I try to find a friend I know to stay with them.
And it's often not because I can't afford a hotel--usually
the people who are inviting me would be willing to pay--but
it's because I do think it's important to know more than what I
live and to try to stay connected to people and to different
experiences.
I don't think that one needs to live an experience without
appreciating it, listening to it, watching it, reading about
it, all of those things, experiencing it for a period of time,
help judges in appreciating the concerns of other experiences
that they don't personally have. And as I said, I try very,
very hard to ensure that, in my life, I introduce as much
experience with other people's lives as I can.
Senator Feingold. I realize I'm jumping back and forth to
these issues, but the last one I want to bring up has to do
with wartime Supreme Court decisions like Korematsu that we
look back at with some bewilderment. I'm referring, of course,
Korematsu v. United States, the decision in which the Supreme
Court upheld the government policy to round up and detain more
than 100,000 Japanese-Americans during World War II.
It seems inconceivable that the U.S. Government would have
decided to put huge numbers of citizens in detention centers
based on their race, and yet the Supreme Court allowed that to
happen. I asked Chief Justice Roberts about this, and I'll ask
you as well: Do you believe that Korematsu was wrongly decided?
Judge Sotomayor. It was, sir.
Senator Feingold. Does a judge have a duty to resist the
kind of war-time fears that people understandably felt during
World War II, which likely played a role in the 1944 Korematsu
decision?
Judge Sotomayor. A judge should never rule from fear. A
judge should rule from law and the Constitution. It is
inconceivable to me today that a decision permitting the
detention/arrest of an individual solely on the basis of their
race would be considered appropriate by our government.
Senator Feingold. Now, some of the great justices in the
history of our country were involved in that decision. How does
a judge resist those kind of fears?
Judge Sotomayor. One hopes, by having the wisdom of a
Harlan in Plessy, by having the wisdom to understand, always,
no matter what the situation, that our Constitution has held us
in good stead for over 200 years and that our survival depends
on upholding it.
Senator Feingold. Thank you, Judge.
Chairman Leahy. Thank you. Thank you very much, Senator
Feingold.
Senator Kyl. Thank you, Mr. Chairman.
Could I return briefly to a series of questions that
Senator Feingold asked at the very beginning relating to the
Maloney decision relating to the Second Amendment?
Judge Sotomayor. Sure. Good afternoon, by the way.
Senator Kyl. I am sorry?
Judge Sotomayor. Good afternoon, by the way.
Senator Kyl. Yes, good afternoon. You had indicated, of
course, if that case were to come before the Court, under the
recusal statute you would recuse yourself from participating in
the decision.
Judge Sotomayor. In that case, yes.
Senator Kyl. Yes, and you are aware that--or maybe you are
not, but there are two other decisions both dealing with the
same issue of incorporation, one in the Ninth Circuit and one
in the Seventh Circuit. The Seventh Circuit decided the case
similarly to your circuit. The Ninth Circuit has decided it
differently, although that case is on rehearing.
If the Court should take all three--let's assume the Ninth
Circuit stays with its decision so you do have the conflict
among the circuits, and the Court were to take all three
decisions at the same time, I take it the recusal issue would
be the same. You would recuse yourself in that situation.
Judge Sotomayor. I haven't actually been responding to that
question, and I think you're right proposing it. I clearly
understand that recusing myself from Maloney would be
appropriate. The impact of the joint hearing by the Court would
suggest that I would have to apply the same principle, but as I
indicated, issues of recusal are left to the discretion of
Justices because their participation in cases is so important.
It is something that I would discuss with my colleagues and
follow their practices with respect to a question like this.
Senator Kyl. Sure. I appreciate that, and I agree with your
reading of the law; 28 U.S.C. Section 455 provides, among other
things, and I quote, ``Any justice, judge, or magistrate judge
of the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.'' And
that, of course, raises the judge's desire to consult with
others and ensure that impartiality is not questioned by
participating in a decision.
I would think--and I would want your responses. I would
think that there would be no difference if the Maloney case is
decided on its own or if it is decided as one of two or three
other cases all considered by the Court at the same time.
Judge Sotomayor. As I said, that is an issue that is
different than the question that was posed earlier----
Senator Kyl. Would you not be willing to make an
unequivocal commitment on that at this time?
Judge Sotomayor. It's impossible to say I will recuse
myself on any case involving Maloney. How the other cert. is
granted and whether joint argument is presented or not, I would
have to await to see what happened.
Senator Kyl. Let me ask you this: Suppose that the other
two cases are considered by the Court, your circuit is not
involved; or that the Court takes either the Seventh or Ninth
Circuit and decides the question of incorporation of the Second
Amendment. I gather that in subsequent decisions you would
consider yourself bound by that precedent or that you would
consider that to be the decision of the Court on the
incorporation question.
Judge Sotomayor. Absolutely. The decision of the Court in
Heller is--its holding has recognized an individual right to
bear arms as applied to the Federal Government.
Senator Kyl. If as a result--I mean, that was the matter
before your circuit, and if as a result of the fact that the
Court decided one of the other or both of the other two circuit
cases and resolved that issue so that the same matter would
have been before the Court, would it not also make sense for
you to indicate to this Committee now that should that same
matter come before the Court and you are on the Court, that you
would necessarily recuse yourself from its consideration?
Judge Sotomayor. I didn't quite follow the start of your
question, Senator. I want to answer precisely.
Senator Kyl. Sure.
Judge Sotomayor. But I'm not quite sure----
Senator Kyl. You agreed with me that if the Court
considered either the Seventh or Ninth Circuit or both
decisions and decided the issue if incorporation of the Second
Amendment to make it applicable to the States, you would
consider that binding precedent of the Court. That, of course,
was the issue in Maloney. As a result, since it is the same
matter that you resolved in Maloney, wouldn't you have to, in
order to comply with the statute, recuse yourself if either or
both or all three of those cases came to the Court?
Judge Sotomayor. Senator, as I indicated, clearly the
statute would reach Maloney. How I would respond to the Court
taking certiorari in what case and whether it held--it took
certiorari in one or all three is a question that I would have
to await to see what the Court decides to do and what issues it
addresses in its grant of certiorari.
There is also the point that whatever comes before the
Court will be on the basis of a particular State statute, which
might involve other questions. It's hard to speak about recusal
in the abstract because there's so many different questions
that one has to look at.
Senator Kyl. And I do appreciate that, and I appreciate
that you should not commit yourself to a particular decision in
a case. If the issue is the same, however, it is simply the
question of incorporation, that is a very specific question of
law. It does not depend upon the facts. I mean, it did not
matter that in your case you were dealing with a very dangerous
arm but not a firearm, for example. You still considered the
question of incorporation.
Well, let me just try to help you along here. Both Justice
Roberts and Justice Alito made firm commitments to this
Committee. Let me tell you what Justice Roberts said. He said
that he would recuse him, and I am quoting now, ``from matters
in which he participated while a judge on the court of appeals
matters.'' And since you did acknowledge that the incorporation
decision was the issue in your Second Circuit case, and the
question that I asked was whether if that is the issue from the
Ninth and Seventh Circuits, you would consider yourself bound
by that. It would seem to me that you should be willing to make
the same kind of commitment that Justice Roberts and Justice
Alito did.
Judge Sotomayor. I didn't understand their commitment to be
broader than what I have just said, which is that they would
certainly recuse themselves from any matter. I understood it to
mean any case that they had been involved in as a circuit
judge. If their practice was to recuse themselves more broadly,
then obviously I would take counsel from what they did. But I
believe, if my memory is serving me correctly--and it may not
be, but I think so--that Justice Alito as a Supreme Court
Justice has heard issues that were similar to ones that he
considered as a circuit court judge.
So as I have indicated, I will take counsel from whatever
the practices of the Justices are with the broader question of
what----
Senator Kyl. I appreciate that. ``Issues which are
similar'' is different, though, from ``an issue which is the
same.'' And I would just suggest that there would be an
appearance of impropriety. If you have already decided the
issue of incorporation one way, that is the same issue that
comes before the Court, and then you, in effect, review your
own decision, that to me would be a matter of inappropriate--
and perhaps you would recuse yourself. I understand your
answer.
Let me ask you about what the President said and I talked
about in my opening statement, whether you agree with him. He
used two different analogies. He talked once about the 25
miles, the first 25 miles of a 26-mile marathon, and then he
also said in 95 percent of the cases, the law will give you the
answer, and the last 5 percent, legal process will not lead you
to the rule of decision; the critical ingredient in those cases
is supplied by what is in the judge's heart.
Do you agree with him that the law only takes you the first
25 miles of the marathon and that that last mile has to be
decided what's in the judge's heart?
Judge Sotomayor. No, sir. That's--I don't--wouldn't
approach the issue of judging in the way the President does. He
has to explain what he meant by judging. I can only explain
what I think judges should do, which is judges can't rely on
what's in their heart. They don't determine the law. Congress
makes the laws. The job of a judge is to apply the law. And so
it's not the heart that compels conclusions in cases. It's the
law. The judge applies the law to the facts before that judge.
Senator Kyl. I appreciate that. And has it been your
experience that every case, no matter how tenuous it has been,
and every lawyer, no matter how good their quality of advocacy,
that in every case every lawyer has had a legal argument of
some quality to make, some precedent that he cited. It might
not be the Supreme Court. It might not be the court of appeals.
It might be a trial court somewhere. It might not even be a
court precedent. It may be a law review article or something.
But have you ever been in a situation where a lawyer said, ``I
don't have any legal argument to make, Judge. Please go with
your heart on this, or your gut'' ?
Judge Sotomayor. Well, I've actually had lawyers say
something very similar to that.
[Laughter.]
Judge Sotomayor. I have had lawyers where questions have
been raised about the legal basis of their argument. I had one
lawyer throw up his hands and say, ``But it's just not right.''
``But it's just not right'' is not what judges consider.
What judges consider is what the law says.
Senator Kyl. You have always been able to find a legal
basis for every decision that you have rendered as a judge.
Judge Sotomayor. Well, to the extent that every legal
decision has--this is what I do in approaching legal questions,
is I look at the law that's being cited. I look at how
precedent informs it. I try to determine what those principles
are of precedent to apply to the facts in the case before me
and then do that.
And so one--that is a process. You use----
Senator Kyl. Right, and all I am asking--this is not a
trick question.
Judge Sotomayor. No. I wasn't----
Senator Kyl. I can't imagine that the answer would be
otherwise than, yes, you have always found some legal basis for
ruling one way or the other, some precedent, some reading of a
statute, the Constitution, or whatever it might be. You haven't
ever had to throw up your arms and say, ``I can't find any
legal basis for this opinion, so I am going to base it on some
other factor.''
Judge Sotomayor. When you say, use the words ``some legal
basis,'' it suggests that a judge is coming to the process by
saying I think the result should be here----
Senator Kyl. No, no. I----
Judge Sotomayor.--and so I'm going to use something to get
there.
Senator Kyl. No. I am not trying to infer that any of your
decisions have been incorrect or that you have used an
inappropriate basis. I am simply confirming what you first said
in response to my question about the President; that in every
case the judge is able to find a basis in law for deciding the
case. Sometimes there are not cases directly on point. That is
true. Sometimes it may not be a case from your circuit.
Sometimes it may be somewhat tenuous, and you may have to rely
upon authority like scholarly opinions in law reviews or
whatever.
But my question was really very simple to you: Have you
always been able to have a legal basis for the decisions that
you have rendered and not have to rely upon some extra-legal
concept such as empathy or some other concept other than a
legal interpretation or precedent?
Judge Sotomayor. Exactly, sir. We apply law to facts. We
don't apply feelings to facts.
Senator Kyl. Right. Now--thank you for that.
Let me go back to the beginning. I raise this issue about
the President's interpretation because he clearly is going to
seek nominees to this Court and other courts that he is
comfortable with, and that would imply who have some
commonality with his view of the law and judging. It is a
concept that I also disagree with, but in this respect, it is--
the speeches that you have given and some of the writings that
you have engaged in have raised questions because they appear
to fit into what the President has described as this group of
cases in which the legal process or the law simply doesn't give
you the answer. And it is in that context that people have read
these speeches and have concluded that you believe that gender
and ethnicity are an appropriate way for judges to make
decisions in cases. That is my characterization.
I want to go back through the--I have read your speeches,
and I have read all of them several times. The one I happened
to mark up here is the Seton Hall speech, but it was virtually
identical to the one at Berkeley. You said this morning that
the point of those speeches was to inspire young people, and I
think there is some in your speeches that certainly is
inspiring. In fact, it is more than that. I commend you on
several of the things that you talked about, including your own
background, as a way of inspiring young people. Whether they
are minority or not, and regardless of their gender, you said
some very inspirational things to them. And I take it that,
therefore, in some sense your speech was inspirational to them.
But in reading these speeches, it is inescapable that your
purpose was to discuss a different issue, that it was to
discuss--in fact, let me put it in your words. You said, ``I
intend to talk to you about my Latina identity, where it came
from, and the influence I perceive gender, race, and national
origin representation will have on the development of the
law.''
And then after some preliminary and sometimes inspirational
comments, you got back to the theme and said, ``The focus of my
speech tonight, however, is not about the struggle to get us
where we are and where we need to go, but instead to discuss
what it will mean to have more women and people of color on the
bench.''
You said, ``No one can or should ignore asking and
pondering what it will mean or not mean in the development of
the law.''
You cited some people who had a different point of view
than yours, and then you came back to it and said, ``Because I
accept the proposition that, as Professor Resnick explains, to
judge is an exercise of power; and because, as Professor Martha
Minow of Harvard Law School explains, there is no objective
stance but only a series of perspectives. No neutrality, no
escape from choice in judging,'' you said. ``I further accept
that our experiences as women and people of color will in some
way affect our decisions.''
Now, you are deep into the argument here. You have agreed
with Resnick that there is no objective stance, only a series
of perspectives, no neutrality--which, just as an aside, it
seems to me is relativism run amok. But then you say, ``What
Professor Minow's quote means to me is not all women or people
of color or all in some circumstances or me in any particular
case or circumstance, but enough women and people of color in
enough cases will make a difference in the process of
judging.'' You are talking here about different outcomes in
cases. And you go on to substantiate your case by, first of
all, citing a Minnesota case in which three women judges ruled
differently than two male judges in a father's visitation case.
You cited two excellent studies which tended to demonstrate
differences between women and men in making decisions in cases.
You said, ``As recognized by legal scholars, whatever the cause
is, not one woman or person of color in any one position, but
as a group, we will have an effect on the development of law
and on judging.''
So you develop the theme. You substantiated it with some
evidence to substantiate your point of view. Up to that point,
you had simply made the case, I think, that judging could
certainly reach--or judges could certainly reach different
results and make a difference in judging depending upon their
gender or ethnicity. You hadn't rendered a judgment about
whether they would be better judgments or not.
But then you did. You quoted Justice O'Connor to say that a
wise old woman and a wise old man would reach the same
decision. And then you said, ``I am also not sure I agree with
that statement.'' And that is when you made the statement that
is now relatively famous: ``I would hope that a wise Latina
woman with the richness of her experiences would more often
than not reach a better conclusion.''
So here you are reaching a judgment that not only will it
make a difference but that it should make a difference. And you
went on--and this is the last thing that I will quote here. You
said, ``In short, I''--well, I think this is important. You
note that some of the old white guys made some pretty good
decisions eventually--Oliver Wendell Holmes, Cardozo, and
others--and you acknowledged that they made a big difference in
discrimination cases. But it took a long time, to understand
takes time and effort, something not all people are willing to
give, and so on. And then you concluded this: ``In short, I
accept the proposition that difference will be made by the
presence of women and people of color on the bench and that my
experiences will affect the facts that I choose to see.'' You
said, ``I don't know exactly what the difference will be in my
judging, but I accept that there will be some based on gender
and my Latina heritage.''
As you said in your response to Senator Sessions, you said
that you weren't encouraging that, and you talked about how we
need to set that aside. But you didn't in your speech say that
this is not good, we need to set this aside. Instead, you
seemed to be celebrating it. The clear inference is it is a
good thing that this is happening.
So that is why some of us are concerned, first with the
President's elucidation of his point of view here about
judging, and then these speeches, several of them, including
speeches that were included in law review articles that you
edited that all say the same thing, and that would certainly
lead one to a conclusion that, A, you understand it will make a
difference and, B, not only are you not saying anything
negative about that, but you seem to embrace that difference in
concluding that you will make better decisions.
That is the basis of concern that a lot of people have.
Please take the time you need to respond to my question.
Judge Sotomayor. Thank you. I have a record for 17 years.
Decision after decision, decision after decision, it is very
clear that I don't base my judgments on my personal experiences
or my feelings or my biases. All of my decisions show my
respect for the rule of law, the fact that, regardless about if
I identify a feeling about a case, which was part of what that
speech did talk about, there are situations where one has
reactions to speeches, to activities.
It's not surprising that in some cases the loss of a victim
is very tragic. A judge deals with those situations, and
acknowledging that there is a hardship to someone doesn't mean
that the law commands the result. I have any number of cases
where I have acknowledged a particular difficulty to a party or
disapproval of a party's action and said, no, but the law
requires this. So my views, I think, are demonstrated by what I
do as a judge.
I am grateful that you took notice that much of my speech,
if not all of it, was intended to inspire, and my whole message
to those students--and that is the very end of what I said to
them--was, ``I hope I see you in the courtroom someday.'' I
don't know if I said it in that speech, but I often end my
speeches with saying, ``And I hope someday you're sitting on
the bench with me.''
And so the intent of the speech, its structure, was to
inspire them to believe, as I do, as I think everyone does,
that life experiences enrich the legal system. I used the words
``process of judging,'' that experience that you look for in
choosing a judge, whether it is the ABA rule that says the
judge has to be a lawyer for X number of years, or it's the
experience that your Committee looks for in terms of what's the
background of the judge. Have they undertaken serious
consideration of constitutional questions?
All of those experiences are valued because our system is
enriched by a variety of experiences. And I don't think that
anybody quarrels with the fact that diversity on the bench is
good for America. It's good for America because we are the land
of opportunity, and to the extent that we are pursuing and
showing that all groups can be lawyers and judges, that's just
reflecting the values of our society.
Senator Kyl. And if I could just interrupt you right now,
to me that is the key. It is good because it shows these young
people that you are talking to that, with a little hard work,
it doesn't matter where you came from; you can make it. And
that is why you hope to see them on the bench. I totally
appreciate that.
The question, though, is whether you leave them with the
impression that it's good to make different decisions because
of their ethnicity or gender, and it strikes me that you could
have easily said in here, ``Now, of course, Blind Lady Justice
doesn't permit us to base decisions in cases on our ethnicity
or gender. We should strive very hard to set those aside when
we can.'' I found only one rather oblique reference in your
speech that could be read to say that you warned against that.
All of the other statements seem to embrace it, or certainly to
recognize it and almost seem as if you are powerless to do
anything about it. ``I accept that this will happen,'' you
said.
So while I appreciate what you are saying, it still doesn't
answer to me the question of whether you think that these--that
ethnicity or gender should be making a difference.
Judge Sotomayor. There are two different, I believe, issues
to address and to look at because various statements are being
looked at and being tied together. But the speech, as it is
structured, didn't intend to do that and didn't do that. Much
of the speech about what differences there will be in judging
was in the context of my saying or addressing an academic
question, all the studies that you reference I cited in my
speech, which is that studies, they were suggesting that there
could be a difference. They were raising reasons why I was
inviting the students to think about that question. Most of the
quotes that you had and reference say that.
We have to ask this question: Does it make a difference?
And if it does, how? And the study about differences in
outcomes was in that context. There was a case in which three
women judges went one way and two men went the other, but I
didn't suggest that that was driven by their gender. You can't
make that judgment until you see what the law actually said.
And I wasn't talking about what law they were interpreting in
that case. I was just talking about the academic question that
one should ask.
Senator Kyl. If I could just interrupt, I think you just
contradicted your speech, because you said in the line before
that, ``Enough women and people of color in enough cases will
make a difference in the process of judging.'' Next comment:
``The Minnesota Supreme Court has given us an example of
that.''
So you did cite that as an example of gender making a
difference in judging.
Now, look, I am not--I do not want to be misunderstood here
as disagreeing with a general look into the question of whether
people's gender, ethnicity, or background in some way affects
their judging. I suspect you can make a very good case that
that is true in some cases. You cite a case here for that
proposition. Neither you nor I probably know whether for sure
that was the reason, but one could infer it from the decision
that was rendered. And then you cite two other studies.
I am not questioning whether the studies are not valuable.
In fact, I would agree with you that it is important for us to
be able to know these things so that we are on guard to set
aside prejudices that we may not even know that we have,
because when you do judge a case--let me just go back in time.
I tried a lot of cases, and it always depended on the luck
of the draw what judge you got. Ninety-nine times out of a
hundred, it didn't matter. So what? We got Judge Jones. Fine.
We got Judge Smith. Fine. It didn't matter because you knew
they would all apply the law.
In the Federal district court in Arizona, there was one
judge you didn't want to get. All of the lawyers knew that,
because they knew he had predilections that were really
difficult for him to set aside. It is a reality. And I suspect
you have seen that on some courts, too.
So it is a good thing to examine whether or not those
biases and prejudices exist in order to be on guard and to set
them aside. The fault I have with your speech is that you not
only do not let these students know that you need to set it
aside. You don't say that that is what you need this
information for. But you almost celebrate it. You say if there
are enough of us, we will make a difference--inferring that it
is a good thing if we begin deciding cases differently.
Let me just ask you one last question here. Have you ever
seen a case where, to use your example, the wise Latina made a
better decision than non-Latina judges?
Judge Sotomayor. No. What I've seen----
Senator Kyl. I mean, I know you like all of your decisions,
but----
[Laughter.]
Chairman Leahy. Let her answer the----
Senator Kyl. I was just saying that I know that she
appreciates her own decisions, and I don't mean to denigrate
her decisions, Mr. Chairman.
Judge Sotomayor. I was using a rhetorical riff that
harkened back to Justice O'Connor, because her literal words
and mine have a meaning that neither of us, if you were looking
at it, in their exact words make any sense. Justice O'Connor
was a part of a Court in which she greatly respected her
colleagues, and yet those wise men--I am not going to use the
other word--and wise women did reach different conclusions in
deciding cases. I never understood her to be attempting to say
that that meant those people who disagreed with her were unwise
or unfair judges.
As you noted, my speech was intending to inspire the
students to understand the richness that their backgrounds
could bring to the judicial process in the same way that
everybody else's background does the same. I think that's what
Justice Alito was referring to when he was asked questions by
this Committee, and he said, ``You know, when I decide a case,
I think about my Italian ancestors and their experiences coming
to this country.'' I don't think anybody thought that he was
saying that that commanded the result in the case. These were
students and lawyers who I don't think would have been misled
either by Justice O'Connor's statement or mine in thinking that
we actually intended to say that we could really make wiser and
fairer decisions. I think what they could think and would think
is that I was talking about the value that life experiences
have, in the words I used, in the process of judging. And that
is the context in which I understood the speech to be doing.
The words I chose, taking the rhetorical flourish, it was a
bad idea. I do understand that there are some who have read
this differently, and I understand why they might have concern.
But I have repeated more than once, and I will repeat
throughout, if you look at my history on the bench, you will
know that I do not believe that any ethnic, gender, or race
group has an advantage in sound judging. You noted that my
speech actually said that. And I also believe that every
person, regardless of their background and life experiences,
can be good and wise judges.
Chairman Leahy. In fact----
Senator Kyl. Excuse me, if I may, just for the record. I
don't think it was your speech that said that, but that is what
you said in response to Senator Sessions' question this
morning.
Chairman Leahy. When we get references made to Justice
Alito, that was on January 11, 2006. When he said, ``When I get
a''--this is Justice Alito speaking. ``When I get a case about
discrimination, I have to think about people in my own family
who suffered discrimination because of their ethnic background
or because of religion or because of gender, and I do take that
into account.''
We will take a 10-minute break.
[Whereupon, at 3:37 p.m., the committee was recessed.]
After Recess [3:52 p.m.]
The Chairman. First off, Judge, I compliment your family.
You cannot see them sitting behind you, because they have all
been sitting there very attentively, and I have to think that
after a while, they would probably rather just be home with
you. But I do appreciate it.
So we are going to go to Senator Schumer, who did such a
good job introducing you yesterday. Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman. And thank all of
my colleagues. First, I am going to follow-up on some of the
line of questioning of Senators Sessions and Kyl, but I would
like to, first, thank my Republican colleagues. I think the
questioning has been strong, but respectful.
I would also like to compliment you, Judge. I think you
have made a great impression on America today. The American
people have seen today what we have seen when you have met with
us one-on-one. You are very smart and knowledgeable, but down
to earth. You are a strong person, but also a very nice person.
And you have covered the questions thoughtfully and modestly.
So now I am going to go on to that line of questions. We
have heard you asked about snippets of statements that have
been used to criticize you and challenge your impartiality, but
we have heard precious little about the body and totality of
your 17-year record on the bench, which everybody knows is the
best way to evaluate a nominee.
In fact, no colleague has pointed to a single case in which
you said the court should change existing law, in which you
have attempted to change existing law, explicitly or otherwise,
and I had never seen such a case anywhere in your long and
extensive record.
So if a questioner is focusing on a few statements or
``those few words'' and does not refer at all to the large body
of cases where you have carefully applied the law, regardless
of sympathies, I do not think that is balanced or down the
middle.
By focusing on these few statements rather than your
extensive record, I think some of my colleagues are attempting
to try and suggest that you might put your experiences and
empathies ahead of the rule of law. But the record shows
otherwise and that is what I now want to explore.
Now, from everything I have read in your judicial record
and everything I have heard you say, you put rule of law first.
But I want to clear it up for the record, so I want to talk to
you a little bit about what having empathy means and then I
want to turn to your record on the bench, which I believe is
the best way to get a sense of what your record will be on the
bench in the future.
Now, I believe that empathy is the opposite of
indifference, the opposite of, say, having ice water in your
veins rather than the opposite of neutrality, and I think that
is the mistake, in concept, that some have used.
But let us start with the basics. Will you commit to us
today that you will give every litigant before the court a fair
shake and that you will not let your personal sympathies toward
any litigant overrule what the law requires?
Judge Sotomayor. That commitment I can make and have made
for 17 years.
Senator Schumer. Okay. Well, good. Let us turn to that
record. I think your record shows extremely clearly that even
when you might have sympathy for the litigants in front of you,
as a judge, your fidelity is first and foremost to the rule of
law, because as you know, in the courtroom of a judge who ruled
based on empathy, not law, one would expect that the most
sympathetic plaintiffs would always win.
But that is clearly not the case in your courtroom. I am
going to take a few cases here and go over them with you. For
example, in In re: Air Crash Off Long Island, which is sort of
a tragic, but interesting name for a case, you heard the case
of families of the 213 victims of a tragic TWA crash, which we
all know about in New York.
The relatives of the victims sued manufacturers of the
airplane, which spontaneously combusted in midair, in order to
get some modicum of relief, though, of course, nothing a court
could do would make up for the loss of the loved ones.
Did you have sympathy for those families?
Judge Sotomayor. All of America did. That was a loss of
life that was traumatizing for New York State, because it
happened off the shores of Long Island. And I know, Senator,
that you were heavily involved in ministering to the families
during that case.
Senator Schumer. I was, right.
Judge Sotomayor. Everyone had sympathy for their loss. It
was absolutely tragic.
Senator Schumer. Many of them were poor families, many of
them from your borough in the Bronx. I met with them. But,
ultimately, you ruled against them, did you not?
Judge Sotomayor. I didn't author the majority opinion in
that case. I dissented from the majority's conclusion, but my
dissent suggested that the court should have followed what I
viewed as existing law and reject their claims or at least a
portion of their claim.
Senator Schumer. Right. Your dissent said that, ``The
appropriate remedial scheme for deaths occurring off the United
States coast is clearly a legislative policy choice which
should not be made by the courts.'' Is that correct?
Judge Sotomayor. Yes, sir.
Senator Schumer. That is exactly, I think, the point that
my colleague from Arizona and others were making about how a
judge should rule. How did you feel ruling against individuals
who had clearly suffered a profound personal loss and tragedy
and were looking to the courts and to you for a sense of
justice?
Judge Sotomayor. One, in a tragic, tragic, horrible
situation like that, can't feel anything but personal sense of
regret, but those personal senses can't command a result in a
case. As a judge, I serve the greater interest and that greater
interest is what the rule of law supplies.
As I mentioned in that case, it was fortuitous that there
was a remedy and that remedy, as I noted in my case, was
Congress and, in fact, very shortly after the second circuit's
opinion, Congress amended the law, giving the victims the
remedies that they had sought before the court. And my dissent
was just pointing out that despite the great tragedy, that the
rule of law commanded a different result.
Senator Schumer. And it was probably very hard, but you had
to do it. Here is another case, Washington v. County of
Rockland, Rockland is a county, a suburb of New York, which was
a case involving black corrections officers who claimed that
they were retaliated against after filing discrimination
claims. Remember that case?
Judge Sotomayor. I do.
Senator Schumer. Did you have sympathy for the officers
filing that case?
Judge Sotomayor. Well, to the extent that anyone believes
that they had been discriminated on the basis of race, that not
only violates the law, but one would have--I wouldn't use the
word ``sympathy,'' but one would have a sense that this claim
is of some importance and one that the court should very
seriously consider.
Senator Schumer. Right, because I am sure, like Judge Alito
said and others, you had suffered discrimination in your life,
as well. So you could understand how they might feel, whether
they were right or wrong in the outcome, in filing.
Judge Sotomayor. I've been more fortunate than most. The
discrimination that I have felt has not been as life-altering
as it has for others. But I certainly do understand it, because
it is a part of life that I'm familiar with and have seen
others suffer so much with, as I have in my situation.
Senator Schumer. Now, let me ask you, again, how did you
feel ruling against law enforcement officers, the kind of
people you have told us repeatedly you have spent your career
working with, DA's office and elsewhere, and for whom you have
tremendous respect?
Judge Sotomayor. As with all cases where I might have a
feeling of some identification with because of background of
because of experiences, one feels a sense of understanding what
they have experienced. But in that case, as in the TWA case,
the ruling that I endorsed against them was required by law.
Senator Schumer. Here is another one. It was called Boykin
v. Keycorp. It was a case in which an African-American woman
filed suit after being denied a home equity loan, even after
her loan application was conditionally approved based on her
credit report.
She claimed that she was denied the opportunity to own a
home because of her race, her sex, and the fact that her
prospective home was in a minority-concentrated neighborhood.
She did not even have a lawyer or anyone else to interpret the
procedural rules for her. She filed the suit on her own.
Did you have sympathy for the woman seeking a home loan
from the bank?
Judge Sotomayor. Clearly, everyone has sympathy for an
individual who wants to own their own home. That's the typical
dream and aspiration, I think, of most Americans. And if
someone is denied that chance for a reason that they believe is
improper, one would recognize and understand their feeling.
Senator Schumer. Right. In fact, you ruled that her claim
was not timely. Rather than overlooking the procedural problems
with the case, you held fast to the complicated rules that keep
our system working efficiently, even if it meant that claims of
discrimination could not be heard. We never got to whether she
was actually discriminated against, because she did not file in
a timely manner.
Is my summation there accurate? Do you want to elaborate?
Judge Sotomayor. Yes, in terms of the part of the claim
that we held was barred by the statute of limitation. In a
response to the earlier question--to an earlier question, I
indicated that the law requires some finality and that's why
Congress passes or a state legislature passes statutes of
limitations that require people to bring their claims within
certain timeframes. Those are statutes and they must be
followed if a situation--if they apply to a particular
situation.
Senator Schumer. Finally, let us look at a case that cuts
the other way, with a pretty repugnant litigant. This is the
case called Pappas v. Giuliani, and you considered claims of a
police employee who was fired for distributing terribly bigoted
and racist materials.
First, what did you think of the speech in question that
this officer was distributing?
Judge Sotomayor. Nobody, including the police officer, was
claiming that the speech wasn't offensive, racist and
insulting. There was a question about what his purpose was in
sending the letter. But my opinion dissent in that case pointed
out that offensiveness and racism of the letter, but I issued a
dissent from the majority's affirmance of his dismissal from
the police department because of those letters.
Senator Schumer. Right. As I understand it, you wrote that
the actual literature that the police officer was distributing
was ``patently offensive, hateful and insulting.'' But you also
noted that, and this is your words in a dissent, where the
majority was on the other side, ``Three decades of
jurisprudence and the centrality of First Amendment freedom in
our lives,'' that is your quote, the employee's right to speech
had to be respected.
Judge Sotomayor. In the situation of that case, that was
the decision that I took, because that's what I believe the law
commanded.
Senator Schumer. Even though, obviously, you would not have
much sympathy or empathy for this officer or his actions. Is
that correct?
Judge Sotomayor. I don't think anyone has sympathy for what
was undisputedly a racist statement, but the First Amendment
commands that we respect people's rights to engage in hateful
speech.
Senator Schumer. Right. Now, I am just going to go to a
group of cases here rather than one individual case. We could
do this all day long, where sympathy, empathy would be on one
side, but you found rule of law on the other side and you sided
with rule of law.
So, again, to me, analyzing a speech and taking words maybe
out of context does not come close to analyzing the cases as to
what kind of judge you will be, and that is what I am trying to
do here.
Now, this one, my office conducted an analysis of your
record in immigration cases, as well as the record of your
colleagues. In conducting this analysis, I came across a case
entitled Chen v. Board of Immigration Appeals, where your
colleague said something very interesting. This was Judge Jon
Newman. He is a very respected judge on your circuit.
He said something very interesting when discussing asylum
cases. Specifically, he said the following, this is Judge
Newman, ``We know of no way to apply precise calipers to all
asylum cases so that any particular finding would be viewed by
any three of the 23 judges of this court as either sustainable
or not sustainable. Panels will have to do what judges always
do in similar circumstances--apply their best judgment, guided
by the statutory standard governing review in the holdings of
our precedents to the administrative decision and the record
assembled to support it.''
In effect, what Judge Newman is saying is these cases would
entertain more subjectivity, let us say, because as he said,
you could decide many of them as sustainable or not
sustainable.
So given the subjectivity that exists in the asylum cases,
it is clear that if you had wanted to be ``an activist judge,''
you could certainly have found ways to rule in favor of
sympathetic asylum-seekers, even when the rule of law might
have been more murky and not have dictated an exact result.
Yet, in the nearly 850 cases you have decided in the second
circuit, you ruled in favor of the government, that is, against
the petitioner seeking asylum, immigrant seeking asylum, 83
percent of the time. That happens to be the exact statistical
median rate for your court. It is not one way or the other.
This means that with regard to immigration, you were
neither more liberal nor more conservative than your
colleagues. You simply did what Judge Newman said. You applied
your best judgment to the record at hand.
Now, can you discuss your approach to immigration cases,
explain to this panel and the American people the flexibility
that judges have in this context, and your use of this
flexibility in a very moderate manner?
Judge Sotomayor. Reasonable judges look at the same set of
facts and may disagree on what those facts should result in. It
harkens back to the question of wise men and wise women being
judges. Reasonable people disagree. That was my understanding
of Judge Newman's comment in the quotation you made.
In immigration cases, we have a different level of review,
because it's not the judge making the decision whether to grant
or not grant asylum. It's an administrative body.
And I know that I will--I'm being a little inexact, but I
think using old terminology is better than using new
terminology. And by that, I mean the agency that most people
know as the Bureau of Immigration has a new name now, but that
is more descriptive than its new name.
Senator Schumer. Some people think the new name is
descriptive, but that is okay.
Judge Sotomayor. In immigration cases, an asylum-seeker has
an opportunity to present his or her case before an immigration
judge. They then can appeal to the Bureau of Immigration and
argue that there was some procedural default below or that the
immigration judge or the bureau itself has committed some error
or law.
They then are entitled by law to appeal directly to the
second circuit. In those cases, because they are administrative
decisions, we are required, under the Chevron Doctrine and
other tests in administrative law, to give deference to those
decisions.
But like with all processes, there are occasions when
processes are not followed and an appellate court has to ensure
that the rights of the asylum-seeker have been--whatever those
rights may be--have been given. There are other situations in
which an administrative body hasn't adequately explained its
reasoning. There are other situations where administrative
bodies have actually applied erroneous law.
No institution is perfect. And so that accounts for why,
given the deference--and I'm assuming you're statistic is
right, Senator, because I don't add up the numbers. Okay? But I
do know that in immigration cases, the vast majority of the
Bureau of Investigation cases are--the petitions for review are
denied. So that means that----
Senator Schumer. Right. The only point I am making here, if
some are seeking to suggest that your empathy or sympathy
overrules rule of law, this is a pretty good body of law to
look at. A, it is a lot of cases, 850; B, one would think--I am
not going to ask you to state it, but you will have sympathy
for immigrants and immigration; and, third, there is some
degree of flexibility here, as Judge Newman said, just because
of the way the law is.
Yet, you were exactly in the middle of the second circuit.
If empathy were governing you, I do not think you would have
ended up in that position, but I will let everybody judge
whether that is true. But the bottom line here, in the Air
Crash case, in Washington, in Boykin, in this whole mass of
asylum cases, you probably had sympathy for many of the
litigants, if not all of them, ruled against them.
The cases we just discussed are just a sampling of your
lengthy record, but they do an effective job of illustrating
the fact that in your courtroom, rule of law always triumphs.
Would you agree? That seems to me, looking at your record,
you know it much better than I do, that rule of law triumphing
probably best characterizes your record in your 17 years as a
judge.
Judge Sotomayor. I firmly believe in the fidelity to the
law. In every case I approach, I start from that working
proposition and apply the law to the facts before it.
Senator Schumer. Has there ever been a case in which you
ruled in favor of a litigant simply because you were
sympathetic to their plight, even if rule of law might not have
led you in that direction?
Judge Sotomayor. Never.
Senator Schumer. Thank you. Let us go on here a little bit
to foreign law, which is an issue that has also been discussed.
Your critics have tried to imply that you will improperly
consider foreign law and sources in cases before you.
You gave a speech in April that has been selectively
quoted, discussing whether it is permissible to use foreign law
or international law to decide cases. You stated clearly that,
``American analytic principles do not permit us,'' that is your
quote, to do so.
Just so the record is 100 percent clear, what do you
believe is the appropriate role of any foreign law in the U.S.
courts?
Judge Sotomayor. American law does not permit the use of
foreign law or international law to interpret the Constitution.
That's a given, and my speech explained that, as you noted,
explicitly.
There is no debate on that question. There is no issue
about that question. The question is a different one, because
there are situations in which American law tells you to look at
international or foreign law, and my speech was talking to the
audience about that.
In fact, I pointed out that there are some situations in
which courts are commanded by American law to look at what
others are doing. So, for example, if the U.S. is a party to a
treaty and there's a question of what the treaty means, then
courts routinely look at how other courts of parties who are
signatories are interpreting that.
There are some U.S. laws that say you have to look at
foreign law to determine the issue. So, for example, if two
parties have signed a contract in another country that's going
to be done in that other country, then American law would say
you may have to look at that foreign law to determine the
contract issue.
The question of use of foreign law then is different than
considering the idea that it may, on an academic level,
provide. Judges--and I'm not using my words. I'm using Justice
Ginsberg's words. You build up your story of knowledge as a
person, as a judge, as a human being with everything you read.
For judges, that includes law review articles and there are
some judges who have opined negatively about that. You use
decisions from other courts. You build up your story of
knowledge.
It is important, in the speech I gave, I noted and agreed
with Justices Scalia and Thomas that one has to think about
this issue very carefully, because there are so many
differences in foreign law from American law. But that was the
setting of my speech and the discussion that my speech was
addressing.
Senator Schumer. And you have never relied on a foreign
court to interpret U.S. law nor would you.
Judge Sotomayor. In fact, I know that in my 17 years on the
bench, other than applying it in treaty interpretation or
conflicts of law situations, that I have not cited to foreign
law.
Senator Schumer. Right, and it is important. American
judges consider many non-binding sources when reaching a
determination. For instance, consider Justice Scalia's well
known regard for dictionary definitions in determining the
meaning of words or phrases or statutes being interpreted by a
court.
In one case, MCI v. AT&T, that is a pretty famous case,
Justice Scalia cited not one, but five different dictionaries
to establish the meaning of the word ``modify'' in a statute.
Would you agree that dictionaries are not binding on
American judges?
Judge Sotomayor. They are a tool to help you in some
situations to interpret what is meant by the words that
Congress or a legislature uses.
Senator Schumer. Right. So it was not improper for Justice
Scalia to consider dictionary definitions, but they are not
binding, same as citing of foreign law, as long as you do not
make it binding on the case.
Judge Sotomayor. Yes. Well, foreign law, except in the
situation----
Senator Schumer. Of treaties.
Judge Sotomayor.--which we spoke about and even then is not
binding. It's American principles of construction that are
binding.
Senator Schumer. Right. Okay. Good. Now, we will go to a
little easier topic, since we are close to the end here. That
is a topic that you like and I like and, that is, we have heard
a lot of discussions about baseball in metaphorical terms,
judges as umpires. We had a lot of that yesterday, a little of
that today.
But I want to talk about baseball a little more concretely.
First, am I correct you share my love for America's past-time?
Judge Sotomayor. It's often said that I grew up in the
shadow of Yankee Stadium. To be more accurate, I grew up
sitting next to my dad, while he was alive, watching baseball
and it's one of my fondest memories of him.
Senator Schumer. So given that you lived near Yankee
Stadium and you are from the Bronx, I was going to ask you, are
you a Mets or a Yankee fan, but I guess you have answered that.
Right?
Chairman Leahy. Be careful. You want to keep the Chairman
on your side.
[Laughter.]
Senator Schumer. No, no. As much as Judge Scalia might want
to be nominated, I do not think she would adopt the Red Sox as
her team as you have, Mr. Chairman. Judge Sotomayor, I am
sorry. What did I say? I do not know who Judge Scalia roots
for, but I know who Judge Sotomayor roots for.
Judge Sotomayor. I know many residents of Washington, D.C.
have asked me to look at the Senators for----
Senator Schumer. Anyway, I do want to ask you just about
the 1995 players strike case, which comes up, but it is an
interesting case for everybody. You will not have to worry
about talking about it, because I do not think the Mets v.
Yankees will come up or the Red Sox v. the Yankees will come up
before the court, although the Yankees could use all the help
they can get right now.
But could you tell us a little bit about the case and why
you listed it in your questionnaire that you filled out as one
of your 10 most important cases?
And that will be my last question, Mr. Chairman.
Judge Sotomayor. That was and people often forget how
important some legal challenges seem before judges decide the
case. Before the case was decided, all of the academics and all
of newspapers and others talking about the case were talking
about the novel theory that the baseball owners had developed
in challenging the collective bargaining rights of players and
owner.
In that case, as with all the cases that I approach, I look
at what the law is, what precedent says about it, and I try to
discern it a new factual challenge how the principles apply,
and that's the process I used in that case.
And it became too clear to me, after looking at that case,
that that process led to affirming the decision of the National
Labor Relationships Board, that it could and should issue an
injunction on the grounds that it claimed.
So that, too, was a case where there's a new argument, a
new claim, but where the application of the law came from
taking the principles of the law and applying it to that new
claim.
Chairman Leahy. Thank you very much, Senator Schumer.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
Chairman Leahy. And then we will go to Senator Durbin.
Senator Graham. Okay. Thank you, Judge. I know it's been a
long day, and we'll try to keep it moving here. I think you're
one Senator after me away from taking a break.
My problem, quite frankly, is that, as Senator Schumer
indicated, the cases that you've been involved in, to me, are
left of center, but not anything that jumps out at--at me, but
the speeches really do. I mean, the speech you gave to the ACLU
about foreign law--we'll talk about that probably in the next
round--was pretty disturbing. And I keep talking about these
speeches because what I'm trying--and I listen to you today,
and I think I'm listening to Judge Roberts. I mean, I'm, you
know, listening to a strict constructionist here.
So we've got to reconcile in our minds here to put the
puzzle together to go that last line, is that you've got Judge
Sotomayor, who has come a long way and done a lot of things
that every American should be proud of. You've got a judge who
has been on a Circuit Court for a dozen years. Some of the
things trouble me, generally speaking, left of center, but
within the mainstream, and you have these speeches that just
blow me away. Don't become a speech writer if this law thing
doesn't work out, because these speeches really throw a wrinkle
into everything. And that's what we're trying to figure out:
who are we getting here? You know, who are we getting, as a
Nation?
Now, legal realism. Are you familiar with that term?
Judge Sotomayor. I am.
Senator Graham. What does it mean, for someone who may be
watching the hearing?
Judge Sotomayor. To me it means that you are guided in
reaching decisions in law by the realism of the situation, of
the--the--it's less--it looks at the law through the----
Senator Graham. It's kind of touchy-feely stuff.
[Laughter.]
Judge Sotomayor. It's not quite words that I would use,
because there are many academics and judges who have talked
about being legal realists. I don't apply that label to myself
at all. I--as I said, I look at law and--and precedent and
discern its principles and apply it to the situation before me.
Senator Graham. So you would not be a disciple of the legal
realism school?
Judge Sotomayor. No.
Senator Graham. Okay. All right.
Would you be considered a strict constructionist, in your
own mind?
Judge Sotomayor. I don't use labels to describe what I do.
There's been much discussion today about what various labels
mean and don't mean.
Senator Graham. Uh-huh.
Judge Sotomayor. Each person uses those labels and gives it
their own sense of what----
Senator Graham. When Judge Rehnquist says he was a strict
constructionist, did you know what he was talking about?
Judge Sotomayor. I think I understood what he was
referencing.
Senator Graham. Uh-huh.
Judge Sotomayor. But his use----
Senator Graham. Uh-huh.
Judge Sotomayor.--is not how I go about looking at----
Senator Graham. What does ``strict constructionism'' mean
to you?
Judge Sotomayor. Well, it means that you look at the
Constitution as it's written, or statutes as is--as they are
written and you apply them exactly by the words.
Senator Graham. Right. Would you be an originalist?
Judge Sotomayor. Again, I don't use labels.
Senator Graham. Okay.
Judge Sotomayor. And--because----
Senator Graham. What is an originalist?
Judge Sotomayor. In my understanding, an originalist is
someone who looks at what the founding fathers intended and
what the situation confronting them was, and you use that to
determine every situation presented--not every, but most
situations presented by the Constitution.
Senator Graham. Do you believe the Constitution is a
living, breathing, evolving document?
Judge Sotomayor. The Constitution is a document that is
immutable to the sense that it's lasted 200 years. The
Constitution has not changed, except by amendment. It is a
process--an amendment process that is set forth in the
document. It doesn't live, other than to be timeless by the
expression of what it says. What changes, is society. What
changes, is what facts a judge may get presented.
Senator Graham. What's the--what's the best way for society
to change, generally speaking?
Judge Sotomayor. Well----
Senator Graham. What's the--what's the most legitimate way
for society to change?
Judge Sotomayor. I don't know if I can use the word
``change''. Society changes because there's been new
developments in technology, medicine, in--in society growing.
Senator Graham. Do you think judges----
Judge Sotomayor. There's----
Senator Graham. Do you think judges have changed society by
some of the landmark decisions in the last 40 years?
Judge Sotomayor. Well, in the last few years?
Senator Graham. Forty years.
Judge Sotomayor. I'm sorry. You said the----
Senator Graham. Forty. I'm sorry. Forty, 4-0. Do you think
Roe v. Wade changed American society?
Judge Sotomayor. Roe v. Wade looked at the Constitution and
decided that the Constitution, as applied to a claimed right,
applied.
Senator Graham. Is there anything in the Constitution that
says a State legislator or the Congress cannot regulate
abortion or the definition of life in the first trimester?
Judge Sotomayor. The holding of the court as----
Senator Graham. I'm asking, the Constitution. Does the
Constitution, as written, prohibit a legislative body at the
State or Federal level from defining life or regulating the
rights of the unborn, or protecting the rights of the unborn in
the first trimester?
Judge Sotomayor. The Constitution, in the Fourteenth
Amendment, has a----
Senator Graham. I'm talking about, is there anything in the
document written about abortion?
Judge Sotomayor. There--the word ``abortion'' is not used
in the Constitution, but the Constitution does have a broad
provision concerning a liberty provision under the due
process----
Senator Graham. And that gets us to the speeches. That
broad provision of the Constitution that has taken us from no
written prohibition protecting the unborn, no written statement
that you can't voluntarily pray in school, and on, and on, and
on, and on. And that's what drives us here, quite frankly.
That's my concern. And when we talk about balls and strikes,
maybe that's not the right way to talk about it.
But a lot of us feel that the best way to change society is
to go to the ballot box, elect someone, and if they're not
doing it right, get rid of them through the electoral process.
And a lot of us are concerned, from the left and the right,
that unelected judges are very quick to change society in a way
that's disturbing. Can you understand how people may feel that
way?
Judge Sotomayor. Certainly, sir.
Senator Graham. Okay.
Now, let's talk about you. I like you, by the way, for
whatever that matters. Since I may vote for you, that ought to
matter to you. One thing that stood out about your record is
that when you look at the almanac of the Federal judiciary,
lawyers anonymously rate judges in terms of temperament.
And here's what they said about you: ``she's a terror on
the bench''; ``she's temperamental, excitable''; ``she seems
angry''; ``she's overly aggressive, not very judicial''; ``she
does not have a very good temperament''; ``she abuses
lawyers''; ``she really lacks judicial temperament''; ``she
believes in an out-of-control--she behaves in an out-of-control
manner''; ``she makes inappropriate outbursts''; ``she is nasty
to lawyers''; ``she will attack lawyers for making an argument
she does not like''; ``she can be a bit of a bully''.
When you look at the evaluation of the judges on the Second
Circuit, you stand out like a sore thumb in terms of your
temperament. What is your answer to these criticisms?
Judge Sotomayor. I do ask tough questions at oral argument.
Senator Graham. Are you the only one that asks tough
questions in oral argument?
Judge Sotomayor. No. No, not at all. I can only explain
what I'm doing, which is, when I ask lawyers tough questions,
it's to give them an opportunity to explain their positions on
both sides and to persuade me that they're right. I do know
that in the Second Circuit, because we only give litigants 10
minutes of oral argument each, that the processes in the Second
Circuit are different than in most other circuits across the
country, and that some lawyers do find that our court--which is
not just me, but our court generally--is described as a ``hot
bench''. It's a term of art lawyers use. It means that they're
peppered with questions. Lots of lawyers who are unfamiliar
with the process in the Second Circuit find that tough bench
difficult and challenging.
Senator Graham. If I may interject, Judge, they find you
difficult and challenging more than your colleagues. And the
only reason I mention this is that it stands out when you--you
know, there are many positive things about you, and these
hearings are--are--are designed to talk--talk about the good
and the bad. And I--I never liked appearing before a judge that
I thought was a bully. It's hard enough being a lawyer, having
your client there to begin with, without the judge just beating
you up for no good reason.
Do you think you have a temperament problem?
Judge Sotomayor. No, sir. I can only talk about what I know
of my relationship with the judges of my court and with the
lawyers who appear regularly from our Circuit. And I believe
that my reputation is--is such that I ask the hard questions,
but I do it evenly for both sides.
Senator Graham. In fairness to you, there are plenty of
statements in the record in support of you as a person that--
that do not go down this line. But I would just suggest to you,
for what it's worth, Judge, as you go forward here, that these
statements about you are striking. They're not about your
colleagues; you know, the 10-minute rule applies to everybody.
Obviously you've accomplished a lot in your life, but maybe
these hearings are a time for self-reflection. This is pretty
tough stuff that you don't see from--about other judges on the
Second Circuit.
Let's talk about the ``wise Latino'' comment yet again. And
the only reason I want to talk about it yet again is that I
think what you said--let me just put my biases on the table
here. One of the things that I constantly say when I talk about
the war on terror is that one of the missing ingredients in the
Mideast is the rule of law that Senator Schumer talked about,
that the hope for the Mideast, Iraq and Afghanistan, is that
there will be a courtroom one day that, if you find yourself in
that court, it would be about what you allegedly did, not who
you are. It won't be about whether you're a Sunni, Shia, a
Khurd or a Pastune, it will be about what you did.
And that's the hope of the world, really, that our legal
system, even though we fail at times, will spread. And I hope
one day that there will be more women serving in elected
official and judicial offices in the Mideast, because I can
tell you this from my point of view: one of the biggest
problems in Iraq and Afghanistan is a mother's voice is seldom
heard about the fate of her children. And if you wanted to
change Iraq, apply the rule of law and have more women involved
in having a say about Iraq. And I believe that about
Afghanistan, and I think that's true here. I think for a long
time a lot of talented women were asked, ``Can you type,'' and
we're trying to get beyond that and improve as a Nation.
So when it comes to the idea that we should consciously try
to include more people in the legal process and the judicial
process from different backgrounds, count me in. But your
speeches don't really say that to me. They--along the lines of
what Senator Kyl was saying, they kind of represent the idea,
there's a day coming when there will be more of us, women and
minorities, and we're going to change the law. And what I hope
we'll take away from this hearing, is there needs to be more
women and minorities in the law to make a better America, and
the law needs to be there for all of us if, and when, we need
it.
And the one thing that I've tried to impress upon you,
through jokes and being serious, is the consequences of these
words in the world in which we live in. You know, we're talking
about putting you on the Supreme Court and judging your fellow
citizens, and one of the things that I need to be assured of is
that you understand the world as it pretty much really is, and
we've got a long way to go in this country. And I can't find
the quote, but I'll find it here in a moment, the ``wise
Latino'' quote. Do you remember it?
[Laughter.]
Judge Sotomayor. Yes.
Senator Graham. Okay. Say it to me. Can you recite it from
memory? I've got it. All right. ``I would hope that a wise
Latina woman, with the richness of her experience, would, more
often than not, reach a better conclusion than a white male.''
And the only reason I keep talking about this is that I'm in
politics, and you've got to watch what you say because, 1) you
don't want to offend people you're trying to represent. But do
you understand, ma'am, that if I had said anything like that,
and my reasoning was that I'm trying to inspire somebody, they
would have had my head? Do you understand that?
Judge Sotomayor. I do understand how those words could be
taken that way, particularly if read in isolation.
Senator Graham. Well, I don't know how else you could take
that. If Lindsey Graham said that I will make a better Senator
than X because of my experience as a Caucasian male, makes me
better able to represent the people of South Carolina, and my
opponent was a minority, it would make national news, and it
should.
Having said that, I am not going to judge you by that one
statement. I just hope you'll appreciate the world in which we
live in, that you can say those things meaning to inspire
somebody and still have a chance to get on the Supreme Court;
others could not remotely come close to that statement and
survive. Whether that's right or wrong, I think that's a fact.
Does that make sense to you?
Judge Sotomayor. It does. And I would hope that we've come,
in America, to the place where we can look at a statement that
could be misunderstood and consider it in the context of the
person's life and the work we have done.
Senator Graham. You know what? If that comes of this
hearing, the hearing has been worth it all, that some people
deserve a second chance when they misspeak, and you would look
at the entire life story to determine whether this is an
aberration or just a reflection of your real soul. If that
comes from this hearing, then we've probably done the country
some good.
Now, let's talk about the times in which we live in. You're
from New York. Have you grown up in New York all your life?
Judge Sotomayor. My entire life.
Senator Graham. What did September 11, 2001 mean to you?
Judge Sotomayor. It was the most horrific experience of my
personal life, and the most horrific experience in imagining
the pain of the families of victims of that tragedy.
Senator Graham. Do you know anything about the group that
planned this attack, who they are and what they believe? Have
you read anything about them?
Judge Sotomayor. I've followed the newspaper accounts, I've
read some books in the area. So, I believe I have an
understanding of that----
Senator Graham. What would a woman's life be in their world
if they can control a government or a part of the world? What
do they have in store for women?
Judge Sotomayor. I understand that some of them have
indicated that women are not equal to men.
Senator Graham. I think that's a very charitable statement.
Do you believe that we're at war?
Judge Sotomayor. We are, sir. We have--we have tens and
thousands of soldiers in the battlefields of Afghanistan and
Iraq. We are at war.
Senator Graham. Are you familiar with military law much at
all? And if you're not, that's Okay.
Judge Sotomayor. No, no, no, no. I--I'm thinking, because
I've never practiced in the area. I've only read the Supreme
Court decisions in this area.
Senator Graham. Right.
Judge Sotomayor. I've obviously examined, by referencing
cases, some of the procedures involved in military law. But I--
I'm not personally familiar with military law.
Senator Graham. From which----
Judge Sotomayor. I haven't participated.
Senator Graham. I understand.
From what you've read and what you understand about the
enemy that this country faces, do you believe there are people
out there right now plotting our destruction?
Judge Sotomayor. Given the announcements of certain groups
and the messages that have been sent with videotapes, et
cetera, announcing that intent, then the answer would be on--
based on that, yes.
Senator Graham. Under the Law of Armed Conflict--and this
is where I may differ a bit with my colleagues--it is an
international concept, the Law if Armed Conflict. Under the Law
of Armed Conflict, do you agree with the following statement,
that if a person is detained who is properly identified through
accepted legal procedures under the Law of Armed Conflict as a
part of the enemy force, there is no requirement based on a
length of time that they be returned to the battle or released.
In other words, if you capture a member of the enemy force, is
it your understanding of the law that you have to at some point
of time let them go back to the fight?
Judge Sotomayor. I--it's difficult to answer that question
in the abstract, for the reason that I indicated later. I've
not been a student of the law of war.
Senator Graham. Okay.
Judge Sotomayor. Other than to----
Senator Graham. We'll have another round. I know you'll
have a lot of things to do, but try to--try to look at that.
Look at that general legal concept. And the legal concept I'm
espousing is that, under the law of war, Article 5,
specifically, of the Geneva Convention, requires a detaining
authority to allow an impartial decisionmaker to determine the
question of status, whether or not you're a member of the enemy
force. And see if I'm right about the law, that if that
determination is properly had, there is no requirement under
the Law of Armed Conflict to release a member of the enemy
force that still presents a threat. I would like you to look at
that.
Judge Sotomayor. Senator----
Senator Graham. Now, let's talk about--thank you.
Let's talk about your time as a lawyer. The Puerto Rican
Legal Defense Fund. Is that right? Is that the name of the
organization?
Judge Sotomayor. It was then. I think it--I--I know it has
changed names recently.
Senator Graham. Okay. How long were you a member of that
organization?
Judge Sotomayor. Nearly 12 years.
Senator Graham. Okay.
Judge Sotomayor. If not 12 years.
Senator Graham. Right. During that time you were involved
in litigation matters. Is that correct?
Judge Sotomayor. The Fund was involved in litigations. I
was a board member of the Fund.
Senator Graham. Okay. Are you familiar with the position
that the Fund took regarding taxpayer-funded abortion, the
briefs they filed?
Judge Sotomayor. No. I never reviewed those briefs.
Senator Graham. Well, in their briefs they argued--and I
will submit the quotes to you--that if you deny a low-income
woman Medicaid funding, taxpayer funds to have an abortion, if
you deny her that, that's a form of slavery. And I can get the
quotes.
Do you agree with that?
Judge Sotomayor. I wasn't aware of what was said in those
briefs. Perhaps it might be helpful if I explain what the
function of a board member is and what the function of the
staff would be in an organization like the Fund.
Senator Graham. Okay.
Judge Sotomayor. In a small organization, as the Puerto
Rican Legal Defense Fund was back then, it wasn't the size of--
of other Legal Defense Funds, like the NAACP Legal Defense
Fund----
Senator Graham. Right.
Judge Sotomayor [continuing]. Or the Mexican-American Legal
Defense Fund, which are organizations that undertook very
similar work to PRLDF. In an organization like PRLDF, a board
member's main responsibility is to fund-raise, and I'm sure
that a review of the board meetings would show that that's what
we spent most of our time on. To the extent that we looked at
the organization's legal work, it was to ensure that it was
consistent with the broad mission statement of the Fund.
Senator Graham. Is the mission statement of the Fund to
include taxpayer-funded abortion?
Judge Sotomayor. Our mission----
Senator Graham. Was that one of the goals?
Judge Sotomayor. Our mission statement was broad like the
Constitution.
Senator Graham. Yeah.
Judge Sotomayor. Which meant that it--its focus was on
promoting the equal opportunities of Hispanics in the United
States.
Senator Graham. Well, Judge, I've got--and I'll share them
with you and we'll talk about this more--a host of briefs for a
12-year period where the Fund is advocating to the State court
and to the Federal courts that to deny a woman taxpayer funds,
low-income woman taxpayer assistance in having an abortion, is
a form of slavery, it's an unspeakable cruel--cruelty to the
life and health of a poor woman. Was it--was it or was it not
the position of the Fund to advocate taxpayer-funded abortions
for low-income women?
Judge Sotomayor. I wasn't, and I didn't as a board member,
review those briefs. Our lawyers were charged with----
Senator Graham. Would it bother you if that's what they
did?
Judge Sotomayor. Well, I know that the Fund, during the
years I was there, was involved in public health issues as it
affected the Latino community. It was involved----
Senator Graham. Is abortion a public health issue?
Judge Sotomayor. Well, it was certainly viewed that way
generally by a number of civil rights organizations at the
time.
Senator Graham. Do you personally view it that way?
Judge Sotomayor. It wasn't a question of whether I
personally viewed it that way or not. The issue was whether the
law was settled on what issues the Fund was advocating on
behalf of the community it represented. And----
Senator Graham. Well, the Fund--I'm sorry. Go ahead.
Judge Sotomayor. And so the question would become, was
there a good-faith basis for whatever arguments they were
making, as the Fund's lawyers were lawyers.
Senator Graham. Well, yeah.
Judge Sotomayor. They had an ethical obligation.
Senator Graham. And quite frankly, that's--you know,
lawyers are lawyers and people who have causes that they
believe in have every right to pursue those causes. And the
Fund, when you look--you may have been a board member, but I'm
here to tell you, that filed briefs constantly for the idea
that taxpayer-funded abortion was necessary and to deny it
would be a form of slavery, challenged parental consent as
being cruel, and I can go down a list of issues that the Fund
got involved in, that the death penalty should be stricken
because it has--it's a form of racial discrimination.
What's your view of the death penalty in terms of
personally?
Judge Sotomayor. The issue for me with respect to the death
penalty is that the Supreme Court, since Gregg, has determined
that the death penalty is constitutional under certain
situations.
Senator Graham. Right.
Judge Sotomayor. I have rejected challenges to the Federal
law and it's application in the one case I handled as a
District Court judge, but it's a reflection of what my views
are on the law.
Senator Graham. As an advocate--as an advocate, did you
challenge the death penalty as being an inappropriate
punishment because the effect it has on race?
Judge Sotomayor. I never litigated a death penalty case
personally. The Fund----
Senator Graham. Did you ever sign the memorandum saying
that?
Judge Sotomayor. I send the memorandum for the board to
take under consideration what position, on behalf of the Latino
community, the Fund should take on New York State reinstating
the death penalty in the State. You--it's hard to remember
because so much time has passed in the 30 years since I----
Senator Graham. Yeah. Well, we'll give you a chance to look
at some of the things I'm talking about because I want you to
be aware of what I'm talking about.
Let me ask you this. We've got 30 seconds left. If a lawyer
on the other side filed a brief in support of the idea that
abortion is the unnecessary and unlawful taking of an innocent
life and public money should never be used for such a heinous
purpose, would that disqualify them, in your opinion, from
being a judge?
Judge Sotomayor. An advocate advocates on behalf of the
client they have, and so that's a different situation than how
a judge has acted in the cases before him or her.
Senator Graham. Okay. And the only reason I mention this,
Judge, is that the positions you took, or this Fund took, I
think, like the speeches, tell us some things, and we'll have a
chance to talk more about your full life. But I appreciate the
opportunity to talk with you.
Judge Sotomayor. Thank you, sir.
Chairman Leahy. Thank you very much, Senator Graham.
Senator Durbin.
Senator Durbin. Thank you, Mr. Chairman. Judge, good to see
you again.
Judge Sotomayor. Hello, Senator. Thank you. And I thank you
again for letting me use your conference room when I was as
hobbled as I was.
Senator Durbin. You were more than welcome there and there
was more traffic of Senators in my conference room than I have
seen since I was elected to the Senate.
This has been an interesting exercise today for many of us
who have been on the Judiciary Committee for a while, because
the people new to it may not know, but there has been a little
bit of a role reversal here. The Democratic side is now,
largely speaking, in favor of our president's nominee. The
other side is asking questions more critical. In the previous
two Supreme Court nominees, the tables were turned. There were
more critical questions coming from the Democratic side.
There is also another obvious contrast. The two previous
nominees that were considered while I was on the committee,
Chief Justice Roberts and Justice Alito, are white males, and,
of course, you come to this as a minority woman candidate.
When we asked questions of the white male nominees of a
Republican president, we were basically trying to make sure
that they would go far enough in understanding the plight of
minorities, because, clearly, that was not in their DNA.
The questions being asked of you from the other side
primarily are along the lines of: will you go too far in siding
with minorities? It is an interesting contrast, as I watch this
play out.
Two things have really been the focus on the other side,
although a lot of questions have been asked. One was, your
speeches, one or two speeches. I took a look here at your
questionnaire. I think you have given hundreds of speeches. So
that they would only find fault in one or two to bring up is a
pretty good track record from this side of the table.
If, as politicians, all we had were one or two speeches
that would raise some questions among our critics, we would be
pretty fortunate. And when it came down to your cases, it
appears that you have been involved, at least as a Federal
judge, in over 3,000 cases and it appears that the Ricci case
really is the focus of more attention than almost any other
decision.
I think that speaks pretty well of you for 17 years on the
bench and I want to join, as others have said, in commending
the other side, because although the questions have sometimes
been pointed, I think they have been fair and I think you have
handled the responses well.
I would like to say that on the speech which has come up
time and again, the wise Latina speech, the next paragraph in
that speech, I do not know if it has been read to the members,
but it should be, because after you made the quote which has
been the subject of many inquiries here, you went on to say,
``Let us not forget that wise men like Oliver Wendell Holmes
and Justice Cardozo voted on cases which upheld both sex and
race discrimination in our society. Until 1972, no Supreme
Court case ever upheld the claim of a woman in a gender
discrimination case.''
You went on to say, ``I, like Professor Carter, believe
that we should not be so myopic as to believe that others of
different experiences or backgrounds are incapable of
understanding the values and needs of people from a different
group. Many are so capable.''
``As Judge Cedarbaum,'' who may still be here, ``pointed
out to me, nine white men on the Supreme Court in the past have
done so on many occasions and on many issues including Brown.''
That, to me, tells the whole story.
You are, of course, proud of your heritage, as I am proud
of my own. But to suggest that a special insight and wisdom
comes with it is to overlook the obvious. Wise men have made
bad decisions. White men have made decisions favoring
minorities. Those things have happened when people looked at
the law and looked at the Constitution.
So I would like to get into two or three areas, if I might,
to follow-up on, because they are areas of particular interest
to me. I will return to one that Senator Graham just touched on
and that is the death penalty.
A book, which I greatly enjoyed, I do not know if you ever
had a chance to read, is ``Becoming Justice Blackmun,'' a story
of Justice Blackmun's career and many of the things that
happened to him. Now, late in his career, he decided that he
could no longer support the death penalty and it was a long,
thoughtful process that brought him to this moment.
He made the famous statement, maybe the best known line
attributed to him, in a decision, Callins v. Collins, ``From
this day forward, I no longer shall tinker with the machinery
of death.'' The 1994 opinion said:
``Twenty years have passed since this court declared that
the death penalty must be imposed fairly and with reasonable
consistency, or not at all, see Furman v. Georgia, and despite
the effort of the States and courts to devise legal formulas
and procedural rules to meet this daunting challenge, the death
penalty remains fraught with arbitrariness, discrimination,
caprice and mistake.''
Judge Sotomayor, I know that you have thought about this
issue. Senator Graham made reference to the Puerto Rican Legal
Defense and Education Fund memo that you once signed on the
subject. What is your thought about Justice Blackmun's view
that despite our best legal efforts, the imposition of the
death penalty in the United States has not been handled fairly?
Judge Sotomayor. With respect to the position the fund took
in 1980-1981 with respect to the death penalty, that was, as I
noted, a question of being an advocate and expressing views on
behalf of the community on a policy choice New York State was
making: Should we or should we not reinstitute the death
penalty?
As a judge, what I have to look at and realize is that in
30 years or 40, actually, there has been--excuse me, Senator.
I'm sorry----
Senator Durbin. It is all right.
Judge Sotomayor [continuing]. Enormous changes in our
society, many, many cases looked at by the Supreme Court
addressing the application of the death penalty, addressing
issues of its application and when they're constitutional or
not.
The state of this question is different today than it was
when Justice Blackmun came to his views. As a judge, I don't
rule in an abstract. I rule in the context of a case that comes
before me and a challenge to a situation and an application of
the death penalty that arises in an individual case.
I've been and am very cautious about expressing personal
views since I've been a judge. I find that people who listen to
judges give--express their personal views on important
questions that the courts are looking at; that they have a
sense that the judge is coming into the process with a closed
mind; that their personal views will somehow influence how they
apply the law.
It's one of the reasons why, since I've been a judge, I've
always been very careful about not doing that and I think my
record speaks more loudly than I can----
Senator Durbin. It does.
Judge Sotomayor [continuing]. About the fact of how careful
I am about ensuring that I'm always following the law and not
my personal views.
Senator Durbin. Well, you handled one death penalty case as
a district court judge, United States v. Heatley, after, you
had signed on to the Puerto Rican Legal Defense and Education
Fund memo in 1981 recommending that the organization oppose
reinstituting the death penalty in New York.
After you had done that, some years later, you were called
on to rule on a case involving the death penalty. Despite the
policy concerns that you and I share, you denied the
defendant's motion to dismiss and you paved the way for the
first Federal death penalty case in Manhattan in more than 40
years.
Now, the defendant ultimately accepted a plea bargain to a
life sentence but you rejected his challenge to the death
penalty and found that he had shown no evidence of
discriminatory intent. So that makes your point. Whatever your
personal feelings, you, in this case at the district court
level, ruled in a fashion that upheld the death penalty.
I guess I am trying to take it a step beyond and maybe you
will not go where I want to take you, and some nominees do not,
but I guess the question that arises, in my mind, is how a man
like Justice Blackmun, after a life on the bench, comes to the
conclusion that despite all our best efforts, the premise of
your 1981 memo is still the same, that, ultimately, the
imposition of the death penalty in our country is too
arbitrary.
Minorities in America today have accounted for a
disproportionate 43 percent of executions, that is a fact,
since 1976. And while white victims account for about one-half
of all murder victims, 80 percent of death penalty cases
involve victims who are white.
This raises some obvious questions we have to face on this
side of the table. I am asking you if it raises questions of
justice and fairness on your side of the table.
Judge Sotomayor. In the Heatley case, it was the first
prosecution in the Southern District of New York of a death
penalty case in over 40 years. Mr. Heatley was charged with
being a gang leader of a crack and cocaine enterprise who
engaged in over--if the number wasn't 13, it was very close to
that--13 murders to promote that enterprise.
He did challenge the application of the death penalty,
charges against him, on the ground that the prosecutor had made
its decision to prosecute him and refused him a cooperation
agreement on the basis of his race.
The defense counsel, much as you have Senator, raised any
number of concerns about the application of the death penalty
and in response to his argument, I held hearings not on that
question, but on the broader question of what had--on the
specific legal question--what had motivated this prosecutor to
enter this prosecution and whether he was denied the agreement
he sought on the basis of race. I determined that that was not
the case and rejected his challenge.
With respect to the issues of concerns about the
application of the death penalty, I noted for the defense
attorneys that, in the first instance, one back question of the
effects of the death penalty, how it should be done, what
circumstances warrant it or don't in terms of the law, that
that's a legislative question.
And, in fact, I said to him--I acknowledged his concerns, I
acknowledged that many had expressed views about that, but
that's exactly what I said, which is, ``I can only look at the
case that's before me and decide that case.''
Senator Durbin. There is a recent case before the Supreme
Court I would like to make reference to, District Attorney's
Office v. Osborne, involving DNA. It turns out there are only
three states in the United States that do not provide state
legislated post-conviction access to DNA evidence that might
exonerate someone who is in prison.
I am told that since 1989, 240 post-conviction DNA
exonerations have taken place across this country, 17 involving
inmates on death row. Now, the Supreme Court, in the Osborne
case, was asked, What about those three states? Is there a
Federal right to post-conviction access to DNA evidence for
someone currently incarcerated? It asked whether or not they
were properly charged and convicted. And the court said, no,
there was no Federal right. But it was a 5-4 case.
So though I do not quarrel with your premise that it is our
responsibility on this side of the table to look at the death
penalty, the fact is, in this recent case, this Osborne case,
there was a clear opportunity for the Supreme Court, right
across the street, to say, We think this gets to an issue of
due process, regarding someone sitting on death row in Alaska,
Massachusetts or Oklahoma, where their state law gives them no
post-conviction right of access to DNA evidence.
So I ask you, either from the perspective of DNA or from
other perspectives, is it not clear that the Supreme Court does
have some authority in the due process realm to make decisions
relating to the arbitrariness of the death penalty?
Judge Sotomayor. The court is not a legislative body. It is
a reviewing body of whether a particular act by a state in a
particular case is constitutional or not.
In a particular situation, the court may conclude that the
state has acted unconstitutionally and invalidate the act. But
it's difficult to answer a question about the role of the court
outside of the functions of the court, which is we don't make
broad policies. We decide questions based on cases and the
principles implicated by that particular case before you.
Senator Durbin. I follow you and I understand the
limitations on policy-related questions that you are facing. So
I would like to go to another area relating to policy and ask
your thoughts on it.
We have, on occasion, every 2 years here, a chance to go
across the street for an historic dinner. The members of the
U.S. Senate sit down with the members of the U.S. Supreme
Court. We look forward to it. It is a tradition that is maybe
six or 8 years old, Mr. Chairman, I do not think much older.
Chairman Leahy. It is a great tradition.
Senator Durbin. Great tradition, and we get to meet them,
they get to meet us. I sat down with one Supreme Court justice,
I won't name this person, but I said at the time that I was
chairing the Crime Subcommittee in Judiciary and said to this
justice, ``What topic do you think I should be looking into as
a Senator when it comes to justice in the United States? '' And
this justice said, ``Our system of corrections and
incarceration in America, it has to be the worst.''
It is hard to imagine how it could be much worse if we
tried to design it that way. Today, in the United States, 2.3
million people are in prison. We have the most prisoners of any
country in the world, as well as the highest per capita rate of
prisoners in the world.
In America today, African-Americans are incarcerated at six
times the rate of white Americans. Now, there is one
significant reason for this and you have faced at least an
aspect of it as a judge, and that is the crack-powder disparity
in sentencing.
I will readily concede I voted for it, as did many members
of the House of Representatives, frightened by the notion of
this new narcotic called crack that was so cheap and so
destructive that we had to do something dramatic. We did. We
established a 100-to-1 ratio in terms of sentencing.
Now, we realize we made a serious mistake. Eighty-one
percent of those convicted for crack offenses in 2007 were
African-American, although only about 25 percent of crack
cocaine users are African-Americans. I held a hearing on this
and Judge Reggie Walton, the former associate director of the
Office of National Drug Control Policy, testified and he
basically said that this sentencing disparity between crack and
powder has had a negative impact in courtrooms across America.
Specifically, he stated that people come to view the courts
with suspicion as institutions that mete out unequal justice,
and the moral authority of not only the Federal courts, but all
courts, is diminished. I might say, for the record, that this
administration has said they want to change this and make the
sentencing ratio one-to-one. We are working on legislation on a
bipartisan basis to do so.
You face this as a judge, at least some aspect of it. You
sentenced Louis Gomez, a non-violent drug offender, to a 5-year
mandatory minimum and you said, when you sentenced him, ``You
do not deserve this, sir. I am deeply sorry for you and your
family, but I have no choice.''
May I ask you to reflect for a moment, if you can, beyond
this specific case or using this specific case, on this
question of race and justice in America today? It goes to the
heart of our future as a nation and whether we can finally come
to grips and put behind us some of the terrible things that
have happened in our history.
Judge Sotomayor. It's so unsatisfying, I know, for you and
probably the other Senators, when a nominee to the court
doesn't engage directly with the societal issues that are so
important to you, both as citizens and Senators. And I know
they are important to you, because this very question you just
mentioned to me is part of bipartisan efforts that you're
making, and I respect that many have concerns on lots of
different issues.
For me, as a judge, both on the circuit or potentially as a
nominee to the Supreme Court, my role is a very different one.
And in the Louis Gomez case, we weren't talking about the
disparity. We were talking about the quantity of drug and
whether I had to follow the law on the statutory minimum that
Congress required for the weight of drugs at issue.
In expressing a recognition of the family's situation and
the uniqueness of that case, it was at a time when Congress had
not recognized the safety valve for first-time offenders under
the drug laws. That situation had motivated many judges in many
situations to comment on the question of whether the law should
be changed to address the safety valve question, then make a
statement, making any suggestions to Congress, I followed the
law.
But I know that the attorney general's office, many people
spoke to Congress on this issue and Congress passed a safety
valve.
With respect to the crack-cocaine disparity, as you may
know, the guidelines are no longer mandatory as a result of a
series of recent Supreme Court--not so recent, but Supreme
Court cases probably almost in the last 10 years. I think the
first one, Apprendi, was in 2000, if my memory is serving me
right, or very close to that.
At any rate, that issue was addressed recently by the
Supreme Court in a case called U.S. v. Kimbro and the court
noted that the Sentencing Commission's recommendation of
sentences was not based on its considered judgment that the
100-to-1 ratio was an appropriate sentence for this conduct and
the court recognized that sentencing judges could take that
fact into consideration in fashioning an individual sentence
for a defendant.
And, in fact, the Sentencing Commission, in very recent
time, has permitted defendants who have been serving prior
sentences, in certain situations, to come back to court and
have the courts reconsider whether their sentences should be
reduced in a way specified under the procedures established by
the Sentencing Commission.
This is an issue that I can't speak further about, because
it is an issue that's being so actively discussed by Congress
and which is controlled by law. But as I said, I can appreciate
why not saying more would feel unsatisfying, but I am limited
by the role I have.
Senator Durbin. One last question I will ask you. I would
like to hear your perspective on our immigration courts. A few
years ago, Judge Richard Posner from my home state of Illinois
brought this problem to my attention.
In 2005, he issued a scathing opinion criticizing our
immigration courts in America. He wrote, ``The adjudication of
these cases at the administrative level has fallen below the
minimum standards of legal justice.''
For those who do not know this Judge Posner, he is an
extraordinary man. I would not know where to put him exactly on
the political spectrum, because I am not sure what his next
book will be. He has written so many books. He is a very gifted
and thoughtful person.
In 2002, then Attorney General John Ashcroft issued so-
called streamlining regulations that made dramatic changes in
our immigration courts, reducing the size of the Board of
Immigration Appeals from 23 to 11. This board stopped using
three-member panels and board members began deciding cases
individually, often within minutes and without written
opinions.
In response, immigrants began petitioning the Federal
appellate court in large numbers. In 2004, immigration cases
constituted 17 percent of all Federal appeals, up from 3
percent in 2001, the last year before the regulations under
Attorney General Ashcroft.
I raised this issue with Justice Alito during his
confirmation hearing and he told me, ``I agree with Judge
Posner that the way these cases are handled leaves an enormous
amount to be desired. I have been troubled by this.''
What has been your experience on the circuit court when it
came to these cases and what is your opinion of Judge Posner's
observation in this 2005 case?
Judge Sotomayor. There's been 4 years since Judge Posner's
comments and they have to be placed somewhat in perspective.
Attorney General Ashcroft's--what you described as streamlining
procedures have been by, I think, all of the circuit courts
that have addressed the issue, affirmed and given Chevron
deference.
So the question is not whether the streamlined procedures
are constitutional or not, but what happened when he instituted
that procedure is that, with all new things, there were many
imperfections. New approaches to things create new challenges
and there's no question that courts faced with large numbers of
immigration cases, as was the second circuit--I think we had
the second largest number of new cases that arrived at our
doorsteps, the ninth circuit being the first, and I know the
seventh had a quite significantly large number--were reviewing
processes that, as Justice Alito said, left something to be
desired in a number of cases.
I will say that that onslaught of cases and the concerns
expressed in a number of cases by the judges, in the dialog
that goes on in court cases, with administrative bodies, with
Congress, resulted in more cooperation between the courts and
the immigration officials in how to handle these cases, how to
ensure that the process would be improved.
I know that the attorney general's office devoted more
resources to the handling of these cases. There's always room
for improvement. The agency is handling so many matters, so
many cases, has so many responsibilities, making sure that it
has adequate resources and training is an important
consideration, again, in the first instance, by Congress,
because you set the budget.
In the end, what we can only do is ensure that due process
is applied in each case, according to the law required for the
review of ths cases.
Senator Durbin. Do you feel that it has changed since 2005,
when Judge Posner said the adjudication of these cases at the
administrative level has fallen below the minimum standards of
legal justice?
Judge Sotomayor. Well, I wouldn't--I'm not endorsing his
views, because he can only speak for himself. I do know that
in, I would say, the last two or 3 years, the number of cases
questioning the processes in published circuit court decisions
has decreased.
Senator Durbin. Thank you very much. Thank you, Mr.
Chairman.
Chairman Leahy. Thank you very, very much Senator Durbin. I
have discussed this with Senator Sessions and, as I told him
earlier, also, at his request, we have not finished the first
round, but once we finish the first round of questions, we will
have 20-minute rounds on the second.
I am going to urge Senators, if they do not feel the need
to use the whole round, just as Senator Durbin just
demonstrated, that they not.
But here will be the schedule. We will break for today. We
will begin at 9:30 in the morning. We will finish the first
round of questions, the last round will be asked by Senator
Franken, and then we will break for the traditional closed door
session with the nominee.
So for those who have not seen one of these before, we do
this with all Supreme Court nominees. We have a closed session
just with the nominee. We go over the FBI report. We do it with
all of them. I think we can generally say it is routine. We did
it with Chief Justice Roberts and Justice Alito and Justice
Breyer and everybody else.
Then we will come back for a round of 20 minutes each, but
during that round, I will encourage Senators, if they feel all
the questions have been asked--I realize sometimes all
questions may have been asked, but not everybody has asked all
of the questions--that we try to ask at least something new to
keep up the interest and then we can determine whether we are
prepared--depending on how late it is--whether we can do the
panels or whether we have to do the panels on Thursday.
Senator Sessions. Thank you, Chairman Leahy. I do think
that the scheme you arranged for this hearing is good, the way
we have gone forward. I thank you for that. We have done our
best to be ready in a short timeframe, and I believe the
members on this side are ready.
Talking of questions, there is not any harm in asking. Is
that not a legal rule? To get people to reduce their time. But
there are still some important questions and I think we will
certainly want to use--most members would want to use that 20
minutes.
I appreciate that and look forward to being with you in the
morning.
Chairman Leahy. That is why I asked the question. I
probably have violated the first rule that I learned as a trial
lawyer--you should not ask a question if you do not know what
the answer is going to be. But then I also had that other
aspect where hope springs eternal. As we have a whole lot of
other things going on in the Senate, I would hope we might.
Senator Cardin, Senator Whitehouse, Senator Klobuchar,
Senator Specter and Senator Franken, I am sorry that we do not
get to you yet, but we will before we do the closed session.
Judge, thank you very much.
Judge Sotomayor. Thank you.
Chairman Leahy. We stand in recess.
[Whereupon, at 5:26 p.m., the Committee was recessed.]
[The biographical information of Sonia Sotomayor follows.]
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CONTINUATION OF THE NOMINATION OF HON. SONIA SOTOMAYOR, TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
WEDNESDAY, JULY 15, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:31 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman,
Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham,
Cornyn, and Coburn.
Chairman Leahy. Good morning, everyone. Judge, it is good
to see you back, and your family.
Judge Sotomayor, yesterday you answered questions from 11
Senators. Frankly, I feel you demonstrated your commitment to
the fair and impartial application of law. You certainly
demonstrated your composure and patience and your extensive
legal knowledge.
Today we will have questioning from the remaining eight
members of the Committee, and then just to set the schedule,
once we finish that questioning, we will arrange a time to go
into the traditional--something that we do every time for the
Supreme Court nominee--closed-door session, which is usually
not very lengthy, and then go back to others. I have talked
with Senator Sessions. We will then go to a second round of
questions of no more than 20 minutes each. I have talked with a
number of Senators who have told me they will not use anywhere
near that 20 minutes, although every Senator has the right to
do it. Then I would hope we might be able to wrap it up.
But we are going to go to Senator Cornyn, himself a former
member of the Texas Supreme Court and former Attorney General.
And, Senator Cornyn, it is yours.
Senator Cornyn. Thank you, Mr. Chairman. Good morning,
Judge.
STATEMENT OF HON. SONIA SOTOMAYOR, TO BE AN ASSOCIATE JUSTICE
OF THE SUPREME COURT OF THE UNITED STATES
Judge Sotomayor. Good morning, Senator. It's good to see
you again.
Senator Cornyn. Good to see you. I recall when we met in my
office, you told me how much you enjoy the back-and-forth that
lawyers and judges do, and I appreciate the good humor and
attitude that you brought to this. And I very much appreciate
your willingness to serve on the highest Court in the land. I
am afraid that sometimes in the past these hearings have gotten
so downright nasty and contentious that some people are
dissuaded from willingness to serve, which I think is a great
tragedy. And, of course, some have been filibustered. They have
been denied the opportunity to have an up-or-down vote on the
Senate floor.
I told you when we visited in my office, that is not going
to happen to you, if I have anything to say about it. You will
get that up-or-down vote on the Senate floor.
But I want to ask your assistance this morning to try to
help us reconcile two pictures that I think have emerged during
the course of this hearing. One is, of course, as Senator
Schumer and others have talked about, your lengthy tenure on
the Federal bench as a trial judge and court of appeals judge.
And then there is the other picture that has emerged from your
speeches and your other writings, and I need your help trying
to reconcile those two pictures, because I think a lot of
people have wondered about that.
The reason why it is even more important that we understand
how you reconcile some of your other writings with your
judicial experience and tenure is the fact that, of course, now
you will not be a lower-court judge subject to the appeals to
the Supreme Court. You will be free as a United States Supreme
Court Justice to basically do what you want with no court
reviewing those decisions, harkening back to the quote we
started with during my opening statement about the Supreme
Court being infallible only because it is final.
So I want to just start with the comments that you made
about the wise Latina speech that, by my count, you made at
least five times between 1994 and 2003. You indicated that this
was really--and please correct me if I am wrong, I am trying to
quote your words--``a failed rhetorical flourish that fell
flat.'' I believe at another time you said they were ``words
that don't make sense.'' And another time I believe you said it
was ``a bad idea.''
Am I accurately characterizing your thoughts about the use
of that phrase that has been talked about so much?
Judge Sotomayor. Yes, generally, but the point I was making
was that Justice O'Connor's words, the ones that I was using as
a platform to make my point about the value of experience
generally in the legal system, was that her words literally and
mine literally made no sense, at least not in the context of
what judges do or--what judges do.
I didn't and don't believe that Justice O'Connor intended
to suggest that when two judges disagree, one of them has to be
unwise. And if you read her literal words that wise old men and
wise old women would come to the same decisions in cases,
that's what the words would mean. But that's clearly not what
she meant. And if you listen to my words, it would have the
same suggestion, that only Latinos would come to wiser
decisions. But that wouldn't make sense in the context of my
speech either, because I pointed out in the speech that eight,
nine white men had decided Brown v. Board of Education. And I
noted in a separate paragraph of the speech that no one person
speaks in the voice of any group.
So my rhetorical flourish, just like hers, can't be read
literally. It had a different meaning in the context of the
entire speech.
Senator Cornyn. But, Judge, she said that a wise man and a
wise woman would reach the same conclusion. You said that a
wise Latina woman would reach a better conclusion than a male
counterpart.
What I am confused about is, are you standing by that
statement? Or are you saying that it was a bad idea and are you
disavowing that statement?
Judge Sotomayor. It is clear from the attention that my
words have gotten and the manner in which it has been
understood by some people that my words failed. They didn't
work. The message that the entire speech attempted to deliver,
however, remains the message that I think Justice O'Connor
meant, the message that prior nominees including Justice Alito
meant when he said that his Italian ancestry he considers when
he's hearing discrimination cases. I don't think he meant, I
don't think Justice O'Connor meant that personal experiences
compel results in any way. I think life experiences generally,
whether it's that I'm a Latina or was a State prosecutor or
have been a commercial litigator or been a trial judge and an
appellate judge, that the mixture of all of those things, the
amalgam of them, helped me to listen and understand. But all of
us understand, because that's the kind of judges we have proven
ourselves to be, we rely on the law to command the results in
the case.
So when one talks about life experiences and even in the
context of my speech, my message was different than I
understand my words have been understood by some.
Senator Cornyn. So do you stand by your words of yesterday
when you said it was ``a failed rhetorical flourish that fell
flat,'' that they are ``words that don't make sense,'' and that
they are ``a bad idea'' ?
Judge Sotomayor. I stand by the words. It fell flat. And I
understand that some people have understood them in a way that
I never intended and I would hope that in the context of the
speech that they would be understood.
Senator Cornyn. You spoke about the law students to whom
these comments were frequently directed and your desire to
inspire them. If, in fact, the message that they heard was that
the quality of justice depends on the sex, race, or ethnicity
of the judge, is that an understanding that you would regret?
Judge Sotomayor. I would regret that because for me the
work I do with students--and it's just not in the context of
those six speeches. As you know, I give dozens more speeches to
students all the time, and to lawyers of all backgrounds, and I
give--and have spoken to community groups of all types. And
what I do in each of those situations is to encourage both
students and, as I did when I spoke to new immigrants that I
was admitting as students, to try to encourage them to
participate on all levels of our society. I tell people that
that's one of the great things about America, that we can do so
many different things and participate so fully in all of the
opportunities America presents. And so the message that I
deliver repeatedly as the context of all of my speeches is: I
have made it. So can you. Work hard at it. Pay attention to
what you're doing and participate.
Senator Cornyn. Let me ask about another speech you gave in
1996 that was published in the Suffolk University Law Review
where you wrote what appears to be an endorsement of the idea
that judges should change the law. You wrote, ``Change,
sometimes radical change, can and does occur in the legal
system that serves a society whose social policy itself
changes.'' You noted with apparent approval that, ``A given
judge or judges may develop a novel approach to a specific set
of facts or legal framework that pushes the law in a new
direction.''
Can you explain what you meant by those words?
Judge Sotomayor. The title of that speech was ``Returning
Majesty to the Law.'' As I hope I communicated in my opening
remarks, I'm passionate about the practice of law and judging,
passionate in the sense of respecting the rule of law so much,
the speech was given in the context of talking to young lawyers
and saying, ``Don't participate in the cynicism that people
express about our legal system.'' I----
Senator Cornyn. What kind of--excuse me. I am sorry. I
didn't mean to interrupt you.
Judge Sotomayor. And I was encouraging them not to fall
into the trap of calling decisions that the public disagrees
with, as they sometimes do, ``activism'' or using other labels;
but to try to be more engaged in explaining the law and the
process of law to the public. And in the context of the words
that you quoted to me, I pointed out to them explicitly about
evolving social changes, that what I was referring to is
Congress is passing new laws all the time, and so whatever was
viewed as settled law previously will often get changed because
Congress has changed something.
I also spoke about the fact that society evolves in terms
of technology and other developments, and so the law is being
applied to a new set of facts.
In terms of talking about different approaches in law, I
was talking about the fact that there are some cases that are
viewed as radical, and I think I mentioned just one case, Brown
v. Board of Education, and explaining and encouraging them to
explain that process, too. And there are new directions in the
law in terms of the Court. The Court, the Supreme Court, is
often looking at its precedents and considering whether in
certain circumstances--because precedent is owed deference for
very important reasons. But the Court takes a new direction,
and those new directions rarely, if ever, come at the
initiation of the Court. They come because lawyers are
encouraging the Court to look at a situation in a new way, to
consider it in a different way.
What I was telling those young lawyers is, ``Don't play
into people's skepticism about the law. Look to explain to them
the process.''
I also, when I was talking about returning majesty to the
law, I spoke to them about what judges can do, and I talked
about, in the second half of that speech, that we had an
obligation to ensure that we were monitoring the behavior of
lawyers before us so that when questionable ethical or other
conduct could bring disrepute to the legal system, that we
monitor our lawyers, because that would return a sense----
Senator Cornyn. Judge, if you would let me--I think we are
straying away from the question I had talking about oversight
of lawyers. Would you explain how, when you say judges should--
I am sorry. Let me just ask. Do you believe that judges ever
change the law? I take it from your statement that you do.
Judge Sotomayor. They change--we can't change law. We're
not lawmakers. But we change our view of how to interpret
certain laws based on new facts, new developments of doctrinal
theory, considerations of whether--what the reliance of society
may be in an old rule. We think about whether a rule of law has
proven workable. We look at how often the Court has affirmed a
prior understanding of how to approach an issue. But in those
senses, there's changes by judges in the popular perception
that we're changing the law.
Senator Cornyn. In another speech in 1996, you celebrated
the uncertainty of the law. You wrote that the law is always in
a, and I quote, ``necessary state of flux.'' You wrote that the
law judges declare is not ``a definitive, capital `L' law that
many would like to think exists,'' and ``that the public fails
to appreciate the importance of indefiniteness in the law.''
Can you explain those statements? And why do you think
indefiniteness is so important to the law?
Judge Sotomayor. It's not that it's important to the law as
much as it is that it's what legal cases are about. People
bring cases to courts because they believe that precedents
don't clearly answer the fact situation that they are
presenting in their individual case. That creates uncertainty.
That's why people bring cases. And they say, Look, the law says
this, but I'm entitled to that. I have this set of facts that
entitle me to relief under the law.
It's the entire process of law. If law was always clear, we
wouldn't have judges. It's because there is indefiniteness not
in what the law is, but its application to new facts that
people sometimes feel it's unpredictable. That speech, as
others I've given, is an attempt to encourage judges to explain
to the public more of the process.
The role of judges is to ensure that they are applying the
law to those new facts, that they're interpreting that law with
Congress' intent, being informed by what precedents say about
the law and Congress' intent and applying it to the new facts.
But that's what the role of the courts is, and obviously,
the public is going to become impatient with that if they don't
understand that process. And I'm encouraging lawyers to do more
work in explaining the system, in explaining what we are doing
as courts.
Senator Cornyn. In a 2001 speech at Berkeley, you wrote,
``Whether born from experience or inherent physiological or
cultural differences, a possibility I abhor less or discount
less than my colleague Judge Cedarbaum, our gender and national
origins may and will make a difference in our judging.''
A difference is physiological if it relates to the
mechanical, physical or biochemical functions of the body, as I
understand the word. What do you mean by that?
Judge Sotomayor. I was talking just about that. There are
in the law--there have been upheld in certain situations that
certain job positions have a requirement for a certain amount
of strength or other characteristics that maybe a person who
fits that characteristic can have that job. But there are
differences that may affect a particular type of work. We do
that all the time. You need to----
Senator Cornyn. We are talking about judging, though,
aren't----
Judge Sotomayor [continuing]. Be a pilot who has good
eyesight.
Senator Cornyn. We are not talking about pilots. We are
talking about judging, right?
Judge Sotomayor. No, no, no, no. What I was talking about
there, because the context of that was talking about the
difference in the process of judging, and the process of
judging for me is what life experiences bring to the process.
It helps you listen and understand. It doesn't change what the
law is or what the law commands.
A life experience as a prosecutor may help me listen and
understand an argument in a criminal case. It may have no
relevancy to what happens in an antitrust suit. It's just a
question of the process of judging. It improves both the
public's confidence that there are judges from a variety of
different backgrounds on the bench, because they feel that all
issues will be more--better at least addressed--not that it's
better addressed, but that it helps that process of feeling
confidence that all arguments are going to be listened to and
understood.
Senator Cornyn. So you stand by the comment or the
statement that inherent physiological differences will make a
difference in judging?
Judge Sotomayor. I'm not sure--I'm not sure exactly where
that would play out, but I was asking a hypothetical question
in that paragraph. I was saying, look we just don't know. If
you read the entire part of that speech, what I was saying is
let's ask the question. That's what all of these studies are
doing. Ask the question if there's a difference. Ignoring
things and saying, you know, it doesn't happen isn't an answer
to a situation. It's consider it. Consider it as a possibility
and think about it. But I certainly wasn't intending to suggest
that there would be a difference that affected the outcome. I
talked about there being a possibility that it could affect the
process of judging.
Senator Cornyn. As you can tell, I am struggling a little
bit to understand how your statement about physiological
differences could affect the outcome or affect judging and your
stated commitment to fidelity to the law as being your sole
standard and how any litigant can know where that will end.
Let me ask you on another topic, there was a Washington
Post story on May 29, 2009, that starts out saying, ``The White
House scrambled yesterday to assuage worries from liberal
groups about Judge Sonia Sotomayor's scant record on abortion
rights.'' And it goes on to say, ``The White House Press
Secretary said the President did not ask Sotomayor specifically
about abortion rights during their interview.''
Is that correct?
Judge Sotomayor. Yes. It is absolutely correct. I was asked
no question by anyone, including the President, about my views
on any specific legal issue.
Senator Cornyn. Do you know then on what basis, if that is
the case--and I accept your statement--on what basis the White
House officials would subsequently send a message that abortion
rights groups do not need to worry about how you might rule in
a challenge to Roe v. Wade?
Judge Sotomayor. No, sir, because you just have to look at
my record to know that in the cases that I addressed, on all
issues I follow the law.
Senator Cornyn. On what basis would George Pavia, who is
apparently a senior partner in the law firm that hired you as a
corporate litigator, on what basis would he say that he thinks
support of abortion rights would be in line with your generally
liberal instincts? He is quoted in this article saying, ``I can
guarantee she'll be for abortion rights.'' On what basis would
Mr. Pavia say that, if you know?
Judge Sotomayor. I have no idea, since I know for a fact I
never spoke to him about my views on abortion, frankly, my
views on any social issue. George was the head partner of my
firm, but our contact was not on a daily basis. I have no idea
why he's drawing that conclusion because if he looked at my
record, I have ruled according to the law in all cases
addressed to the issue of the termination of abortion rights--
of women's right to terminate their pregnancy, and I voted in
cases in which I have upheld the application of the Mexico City
policy, which was a policy in which the government was not
funding certain abortion-related activities.
Senator Cornyn. Do you agree with his statement that you
have generally liberal instincts?
Judge Sotomayor. If he was talking about the fact that I
served on a particular board that promoted equal opportunity
for people, the Puerto Rican Legal Defense and Education Fund,
then you could talk about that being a liberal instinct in the
sense that I promote equal opportunity in America and the
attempts to ensure that. But he has not read my jurisprudence
for 17 years, I can assure you. He's a corporate litigator, and
my experience with corporate litigators is that they only look
at the law when it affects the case before them.
[Laughter.]
Senator Cornyn. Well, I hope, as you suggested, not only
liberals endorse the idea of equal opportunity in this country.
That is, I think, a bedrock doctrine that undergirds all of our
law. But that brings me, in the short time I have left, to the
New Haven firefighter case. As you know, there are a number of
the New Haven firefighters who are here today and will testify
tomorrow. And I have to tell you, Your Honor, as a former judge
myself, I was shocked to see the sort of treatment that the
three-judge panel you served on gave to the claims of these
firefighters by an unpublished summary order, which has been
pointed out in the press would not be likely to be reviewed or
even caught by other judges on the Second Circuit, except for
the fact that Judge Cabranes read about a comment made by the
lawyer representing the firefighters in the press that the
court gave short shrift to the claims of the firefighters.
Judge Cabranes said, ``The core issue presented by this
case, the scope of a municipal employer's authority to
disregard examination results based solely on the successful
applicant, is not addressed by any precedent of the Supreme
Court or our circuit.'' And looking at the unpublished summary
order, this three-judge panel of the Second Circuit doesn't
cite any legal authority whatsoever to support its conclusion.
Can you explain to me why you would deal with it in a way
that appears to be so--well, ``dismissive'' may be too strong a
word--but that avoids the very important claim such that the
Supreme Court ultimately reversed you on, that was raised by
the firefighters' appeal?
Judge Sotomayor. Senator, I can't speak to what brought
this case to Judge Cabranes' attention. I can say the
following, however: When parties are dissatisfied with a panel
decision, they can file a petition for rehearing en banc. And,
in fact, that's what happened in the Ricci case. Those briefs
are routinely reviewed by judges, and so publishing by summary
order--or addressing an issue by summary order or by published
opinion doesn't hide a party's claims from other judges. They
get the petitions for rehearing.
Similarly, parties, when they are dissatisfied with what a
circuit has done, file petitions for certiorari, which is a
request for the Supreme Court to review a case, and so the
Court looks at that as well. And so regardless of how a circuit
decided a case, it's not a question of hiding it from others.
With respect to the broader question that you are raising,
which is why do you do it by summary order or why do you do it
in a published opinion or in a per curiam, the question--or the
practice is that about 75 percent of circuit court decisions
are decided by summary order, in part because we can't handle
the volume of our work if we were writing long decisions in
every case; but, more importantly, because not every case
requires a long opinion if a district court opinion has been
clear and thorough on an issue. And in this case, there was a
78-page decision by the district court. It adequately explained
the question that the Supreme Court addressed and reviewed.
And so to the extent that a particular panel considers that
an issue has been decided by existing precedent, that's a
question that the court above can obviously revisit, as it did
in Ricci, where it looked at it and said, well, we understand
what the circuit did, we understand what existing law is, but
we should be looking at this question in a new way. That's the
job of the Supreme Court. I would----
Senator Cornyn. But, Judge, even the district court
admitted that a jury could rationally infer that city officials
worked behind the scenes to sabotage the promotional
examinations because they knew that the exams--they knew that
were the exams certified, the mayor would incur the wrath of
Reverend Boise Kimber and other influential leaders of New
Haven's African American community. You decided that based on
their claim of potential disparate impact liability that there
was no recourse, that the city was justified in disregarding
the exams and, thus, denying these firefighters, many of whom
suffered hardship in order to study and to prepare for these
examinations and were successful, only to see that hard work
and effort disregarded and not even acknowledged in the court's
opinion. And ultimately, as you know, the Supreme Court said
that you just can't claim potential disparate impact liability
as a city and then deny someone a promotion based on the color
of their skin. There has to be a strong basis in evidence. But
you didn't look to see whether there was a basis in evidence to
the city's claim. Your summary opinion, unpublished summary
order, didn't even discuss that.
Don't you think that these firefighters and other litigants
deserve a more detailed analysis of their claims and an
explanation for why you ultimately denied their claim?
Judge Sotomayor. As you know, the court's opinion, issued
after discussions en banc, recognized, as I do, the hardship
that the firefighters experienced. That's not been naysayed by
anyone.
The issue before the court was a different one, and the one
that the district court addressed was what decision the
decision makers made, not what people behind the scenes wanted
the decision makers to make, but what they were considering.
And what they were considering was the state of the law at the
time. And in an attempt to comply with what they believed the
law said and what the panel recognized as what the Second
Circuit precedent said, that they made a choice under that
existing law.
The Supreme Court in its decision set a new standard by
which an employer and lower court should review what the
employer is doing by the substantial evidence test. That test
was not discussed with the panel. It wasn't part of the
arguments below. That was a decision by the Court, borrowing
from other areas of the law and saying we think this would work
better in this situation.
Senator Cornyn. My time is up. Thank you.
Chairman Leahy. Thank you. Thank you very much.
I will put in the record a letter of support for Judge
Sotomayor's nomination from the United States Hispanic Chamber
of Commerce on behalf of its 3 million Hispanic-owned business
members, 16 undersigned organizations, including the El Paso
Hispanic Chamber of Commerce, Greater Dallas Hispanic Chamber
of Commerce, the Houston Hispanic Chamber of Commerce, the
Odessa Hispanic Chamber of Commerce, and a similar letter from
the Arizona Hispanic Chamber of Commerce. I had meant to put
those in the record before. We will put them in the record now.
[The letters appear as a submission for the record.]
Senator Sessions. Mr. Chairman, I would offer a letter for
the record from the National Rifle Association in which they
express serious concern about the nomination of Judge Sonia
Sotomayor.
Also I noticed that the head of that organization, Mr.
LaPierre, wrote an article this morning raising increased
concern after yesterday's testimony, and I would also offer for
the record a letter from Mr. Richard Land, of the Ethics and
Religious Liberty Commission of the Southern Baptist
Convention, also raising concerns.
Chairman Leahy. Without objection, those will be made part
of the record.
[The letters appear as a submission for the record.]
Chairman Leahy. Do you have anything else?
Senator Sessions. Nothing else.
Chairman Leahy. I will yield to Senator Cardin.
Senator Cardin. Thank you, Mr. Chairman. Judge Sotomayor,
good morning. Welcome back to our committee. I just want you to
know that the baseball fans of Baltimore knew there was a judge
somewhere that changed in a very favorable way the reputation
of Baltimore forever. You are a hero and they now know it is
Judge Sotomayor. You are a hero to Baltimore baseball fans.
Let me explain. The major league baseball strike, you
allowed the season to continue so Cal Ripken could become the
iron man of baseball in September 1995. So we just want to
invite you--as a baseball fan, we want to invite you to an
Orioles game and we promise it will not be when the Yankees are
playing, so you can root for the Baltimore Orioles.
[Laughter.]
Judge Sotomayor. That's a great invitation, and good
morning, Senator. You can assure your Baltimore fans that I
have been to Camden Yards. It's a beautiful stadium.
Senator Cardin. Well, we think it is the best. Of course,
it was the beginning of the new trends of baseball stadiums,
and you are certainly welcome.
Before this hearing, the people of this country knew that
the president had selected someone with incredible credentials
to be a Supreme Court member. Now, they know the person is able
and is capable and understands the law and has been able to
understand what the appropriate role is for a judge in
interpreting the law and has done very well in responding to
the members of the U.S. Senate, which I think bodes well for
your interaction with attorneys and your colleagues on the
bench in having a thorough discussion of the very important
issues that will affect the lives of all people in our nation.
I do want to, first, start with the judicial temperament
issue and the reference to the Almanac on the Federal
Judiciary. I just really want to quote from other statements
that were included in that almanac, where they were commenting
about you and saying that she is very good, she is bright, she
is a good judge, she is very smart, she is frighteningly smart,
she is intellectually tough, she is very intelligent, she has a
very good commonsense approach to the law, she looks at the
practical issues, she is good, she is an exceptional judge
overall, she is engaged in oral argument, she is well prepared,
she participates actively in oral argument, she is extremely
hardworking and well prepared.
And I want to quote from one of the judges on your circuit,
Judge Miner, who was appointed by President Reagan, when he
said, ``I don't think I go as far as to classify her in one
camp or another. I think she just deserves the classification
of an outstanding judge.''
I say that because maybe you would like to comment to these
more favorable comments about how the bar feels about your
service on the bench.
Judge Sotomayor. I thank those who have commented in the
way they did. I think that most lawyers who participate in
argument before me know how engaged I become in their arguments
and trying to understand them. And as I indicated yesterday,
that can appear tough to some people, because active engagement
can sometimes feel that way.
But my style is to engage as much as I can so I can ensure
myself that I understand what a party is intending to tell me.
I am, in terms of what I do, always interested in
understanding, and so that will make me an active participant
in argument.
As I noted yesterday, I have colleagues who never ask
questions. There are some judges on the Supreme Court who
rarely ask questions and others ask a lot of questions. Judges
approach issues in different ways, with different styles, and
mine happens to be on one end of the style and others choose
others.
Senator Cardin. Well, I thank you for that response. I
agree with you that the Constitution and Bill of Rights are
timeless documents and have served our nation well for over 200
years and are the envy of many other nations.
Now, there are many protections in the Constitution, but I
would like to talk a little bit about civil rights and the
basic protections in our Constitution and how we have seen a
progression in the Constitution and Bill of Rights through
constitutional amendments, including the 13th, 14th, 15th and
19th, through congressional action, through the passage of such
bills as the Civil Rights Act of 1964, the Voting Rights Act of
1965, Supreme Court decisions that we have talked about that
have changed civil rights in America and made it possible for
many people to have the opportunities of this country that
otherwise would have been denied.
We have made a lot of progress since the days of segregated
schools and restrictions on people's opportunities to vote. But
I think we would all do well to remember the advice given to us
by our colleague, Senator Edward Kennedy, the former chairman
of this Committee, as we talk about the civil rights struggle;
he says, ``The work goes on, the cause endures, the hope still
lives, and the dream shall never die.''
So I say that as an introduction to one area of civil
rights, and that is the right to vote, a fundamental right. My
own experience in 2006, that is just a few years ago, causes me
to have concerns. In my own election, I found that there were
lines longer in the African-American precincts to vote than in
other precincts, and I was curious as to why this took place.
They did not have as many voting machines. There were a lot of
irregularities, and it caused a lot of people who had to get
back to work to be denied their right to participate.
We also found, on election day, fraudulent sample ballots
that were targeted to minority voters in an effort to diminish
their importance in the election. I mention that because that
happened not 50 years ago, but happened just a few years ago.
Congress renewed the Voting Rights Act by rather large
votes, 98-0 in the U.S. Senate, 390-33 in the House of
Representatives; this reflects a clear intent of Congress to
continue to protect voters in this country.
In Northwest Austin Municipal Utility District Number One
v. Holder, one justice on the court, in dictum, challenged
Congress' authority to extend the civil rights case. Now, I say
that knowing your view about giving due deference to Congress,
particularly as it relates to expanding and extending civil
rights protections.
So my question to you is tell me a little bit about your
passion for protecting the right to vote, to make sure that the
laws are enforced as Congress intended, to guarantee to every
American the right to participate at the voting place.
Judge Sotomayor. When we speak about my passion, I don't
think that the issue of guaranteeing each citizen the right to
vote is unique to me or that it's different among any Senator
or among any group of people who are Americans.
It is a fundamental right and it is one that you've
recognized, Congress has addressed for decades and has done an
amazing job in passing a wide variety of statutes in an effort
to protect that right.
The question that a court would face in any individual
situation is whether an act of Congress conflicts with some
right of either the state or an individual with respect to the
issue of voting. There could be other challenges raised on a
wide variety of different bases, but each case would present
its own unique circumstance.
There is one case involving the Voting Rights Act where I
addressed the issue of the right to vote and in that case, I
issued a dissent on an en banc ruling by my court. For the
public who may not understand what en banc ruling means, when
the whole court is considering an issue.
In that case, if it wasn't 13, it may have been 12 members
of the court, we're a complement of 13 judges, but I, right
now, can't remember if we were a full complement at the time,
considering an issue. The majority upheld a state regulation
barring a group of people from voting.
I dissented on a very short opinion, one-paragraph opinion,
saying, ``These are the words of Congress in the statute it
passed, and the words are that no state may impose a--and I'm
paraphrasing it now. I'm not trying to read the statute, but no
condition or restriction on voting that denies or abridges the
right to vote on the basis of race.
I noted that given the procedural posture of that case,
that the plaintiff had alleged that that's exactly what the
state was doing, and I said that's the allegation on the
complaint. That's what a judge has to accept on the face of the
complaint. We've got to give him a chance to prove that, and
that, to me, was the end of the story.
To the extent that the majority believed that--and there
was a lot of discussion among the variety of different opinions
in the case as to whether this individual could or could not
prove his allegation and there was a suggestion by both sides
that he might never be able to do it.
My point was a legal one. These are Congress' words. We
have to take them at their word. And if there's an end result
of this process that we don't like, then we have to leave that
to Congress to address that issue. We can't fix it by ruling
against what I viewed as the express words of Congress.
Senator Cardin. Let me use your quote there, because I
thought it was particularly appropriate. You said, ``I trust
the Congress would prefer to make needed changes itself rather
than have the courts do so for it,'' and I think the members of
this Committee would agree with you.
As you responded to Senator Grassley in regard to the
Riverkeeper case, you said you give deference to Congress. I
think we all share that. One of my concerns is that we are
seeing judicial activism in restricting the clear intent of
Congress in moving forward on fundamental protections.
Let me move, if I might, to the environment, which is an
area that is of great concern to all of us. In the past 50
years, Congress has passed important environmental laws,
including the Clean Air Act, the Clean Water Act, the National
Environmental Policy Act, the Endangered Species Act, the Safe
Drinking Water Act, and Superfund.
Despite the progress we have made over the years, it is
important that we keep advancing the protections in our
environment. During your testimony yesterday, you made it clear
that you understand that Senators and Members of Congress
elected by the people are the ones making policy by passing
laws and you also made it clear that judges apply the laws
enacted and that they should do so or least they should do so
with deference to the intent of Congress.
Yet, we have seen, in recent decisions of the Supreme
Court, like the Solid Waste Agency of Northern Cook County v.
U.S. Corps of Engineers and Rapanos v. United States, that they
have forced the EPA to drop more than 500 cases against alleged
polluters.
These decisions have impact and it is clear to many of us
that they reject longstanding legal interpretations and ignore
the science that served as the foundations for the laws passed
by Congress and the intent of Congress to protect American
people by providing them with clean water, clean air and a
healthy environment.
As a Senator from Maryland, I am particularly concerned
about that as it relates to the efforts that we are making on
the Chesapeake Bay.
Now, I understand that these decisions are now precedent
and they are binding and that it may very well require the
Congress to pass laws further clarifying what we meant to say
so that we can try to get back on track. I understand that.
But I would like you to comment and, I hope, reinforce the
point that you have said that in reaching decisions that come
to the bench, whether they are environmental laws or other laws
to protect our society, you will follow the intent of Congress
and will not try to supplant individual judgment that would
restrict the protections that Congress has passed for our
community.
Judge Sotomayor. I believe my cases, my entire record shows
that I look at the acts of Congress, as I think the Supreme
Court does, with deference, because that is the bedrock of our
constitutional system, which is that each branch has a
different set of constitutional powers; that deference must be
given to the rights of each branch in each situation; that it
is exercising its powers; and, to the extent that the court has
a role, because it does have a role, to ensuring that the
Constitution is followed, it attempts to do that.
When I say ``attempt,'' but it always attempts it with a
recognition of the deference it owes to the elected branches in
terms of setting policy and making law.
Senator Cardin. Thank you for that response. Let me turn,
if I might, to our personal backgrounds. There has been a lot
of discussion here about what each of us brings to our position
in public life.
Progress for women in this country has not come easily or
quickly. At one time, women could not vote, could not serve on
juries, could not hold property. I sit here today wanting to
feel confident that the Supreme Court and its justices who make
key decisions on women's rights in society will act to ensure
continued progress for equality between men and women.
Now, we all agree that in rendering an individual decision,
gender or ethnic backgrounds should not affect your judgment.
There is an importance to diversity which I think we have all
talked about. Each of us brings our life experiences to our
job.
Your life experience at Princeton, I think, serves as an
example. You attended the school that F. Scott Fitzgerald 90
years ago called ``the pleasantist country club in America,''
with very restrictive policies as to who could attend Princeton
University. By 1972, your freshman class, it was a different
place, but still far from where it should be.
And I admire your efforts to change that at Princeton and
you were actively involved in improving diversity at that
school, and Princeton is a better place today because of your
efforts.
I think of my own experiences at law school, University of
Maryland Law School, which denied admission to Thurgood
Marshall and, in my class, had very few women. Times have
changed.
Justice Ginsberg said, referring to the importance of women
on the bench, ``I think the presence of women on the bench made
it possible for the courts to appreciate earlier than they
might otherwise that sexual harassment belongs under Title 7.''
So on behalf of myself, on behalf of my daughter and two
granddaughters, I want to hear from you the importance of
different voices in our schools, in our Congress, and on the
Supreme Court of the United States as to how having diversity,
the importance of diversity, and your views as to what steps
are appropriate for government to take in helping to improve
diversity.
Judge Sotomayor. Your comments about your daughter and
granddaughter makes me remember a letter I received when I was
being nominated to the circuit court. It was from a woman who
said she had 19 daughters and grandchildren and how much pride
she took in knowing that a woman could serve on a court like
the second circuit.
And I realized then how important the diversity of the
bench is to making people feel and understand the great
opportunity American provides to all its citizens, and that has
value. That's clear.
With respect to the issue of the question of what role
diversity serves in the society, it harkens back almost
directly to your previous question. I've been overusing that
word ``harkens,'' sorry. It almost comes around to your earlier
question, which is that issue is one that starts with the
legislative branches and the government, the executive bodies,
and employers who look at their workforce, that look at the
opportunities in society, and make policy decisions about what
promotes that equal opportunity in the first instance.
The court then looks at what they have done and determines
whether that action is constitutional or not. And with respect
at least to the education field, in a very recent set of cases,
the Supreme Court looked at the role of diversity in
educational decisions as to which students they would admit,
and the court upheld the University of Michigan's law school
admissions policy, which would--because the school believed
that it needed to promote as wide a body and diverse a body of
students to ensure that life perspectives, that the experience
of students would be as fulsome as they wished.
And they used race there as one of many factors, but not
one that compelled individual choices of the student. The court
upheld that. And Justice O'Connor, in the opinion she wrote,
authored, expressed the hope that in 25 years, race wouldn't
even need to be considered.
In a separate case, the University of Michigan's
undergraduate admissions policy, the court struck that down and
it struck it down because it viewed the use of race as a form
of impermissible quota, because it wasn't based on an
individual assessment of the people applying, but as an
impermissible violation of the equal protection clause and of
the law.
These situations are always looked at individually and, as
I said, in the context of the choices that Congress, the
executive branch, an employer is making and the interest that
it's asserting and the remedy that it's creating to address the
interest it's trying to protect. All of that is an individual
question for the courts.
Senator Cardin. And you need to look at all the facts in
reaching those decisions, which you have stressed over and over
again. I want a justice who will continue to move the court
forward in protecting those important civil rights.
I want a justice who will fight for people like Lawrence
King, who, at the age of 15, was shot in school because he was
openly gay. I want a justice who will fight for women like a
28-year-old Californian who was gang raped by four people
because she was a lesbian. And I want a justice who will fight
for people like James Byrd, who was beaten and dragged by a
truck for two miles because he was black. So we need to
continue that focus.
You talked about race and I think about the Gant case,
where a 6-year-old black child was removed from school and was
treated rather harshly with racial harassment. And in your
dissent, you stated that the treatment this lone black child
encountered during his brief time in Cook Hill's first grade to
have been not merely arguable, unusual, indisputable
discretion, but unprecedented and contrary to the school's
established policy.
Justice Blackmun spoke, ``In order to get beyond racism, we
first must take an account of race.'' And if you ignore race
completely, aren't you ignoring facts that are important in a
particular case?
Judge Sotomayor. Well, it depends on the context of the
case that you're looking at. In the Gant case, for example,
there were a variety of different challenges brought by the
plaintiff to the conduct that was alleged the school had
engaged in. I joined the majority in dismissing some of the
claims as not consistent with law.
But in that case, there was a disparate treatment element
and I pointed out to the set of facts that showed or presented
evidence of that disparate treatment. That's the quote that the
quote that you were reading from, that this was a sole child
who was treated completely different than other children of a
different race in the services that he was provided with and in
the opportunities he was given to remedy or to receive remedial
help.
That is obviously different, because what you're looking at
is the law as it exists and the promise that the law makes to
every citizen of equal treatment in that situation.
Senator Cardin. I agree. I think you need to take a look at
all the facts and circumstances and to ignore race, you are
ignoring an important fact.
Let me talk a little bit about privacy, if I might. Justice
Brandeis describes privacy as the right to be left alone. In
other words, if we must restrict this right, it must be minimal
and protections must occur before any such action occurs.
The Supreme Court has advanced rights of privacy in the
Meyer case and the Loving case, which established the
fundamental rights of persons to raise families and to marry
whom they please, regardless of race; the Lawrence case, which
held that states cannot criminalize homosexual conduct;
Griswold, which held that allowed for family planning as a
fundamental right; and, of course, Roe v. Wade, which gave
women the right to control their own bodies.
I just would like to get your assessment of the role the
court faces on privacy issues in the 21st century, recognizing
that our Constitution was written in the 18th century and the
challenges today are far different than they were when the
Constitution was written as it relates to privacy. The
technologies are different today and the circumstances of life
are different.
How do you see privacy challenges being confronted in the
21st century in our Constitution and in the courts?
Judge Sotomayor. The right to privacy has been recognized,
as you know, in a wide variety of circumstances for more than
probably 90 years now, close to 100. That is a part of the
court's precedence in applying the immutable principles of the
Constitution, the liberty provision of the due process clause,
and recognizing that that provides a right to privacy in a
variety of different settings. You have mentioned that line of
cases and there are many others in which the court has
recognized that as a right.
In terms of the coming century, it's guided by those cases,
because those cases provide the courts precedence and
framework, and with other cases, to look at how we will
consider a new challenge to a new law or to a new situation.
That's what precedent's do. They provide a framework. The
Constitution remains the same. Society changes. The situations
it brings before courts change, but the principles are the
words of the Constitution guided by how precedence gives--or
has applied those principles to each situation and then you
take that and you look at the new situation.
Senator Cardin. In the time that I have remaining, I would
like to talk about pro bono. I enjoyed our conversation when
you were in my office talking about your commitment to pro
bono. I think, as attorneys, we all have a special
responsibility to ensure equal justice and that requires equal
access.
The Legal Aid lawyers, per capita, are about 61 per 6,800.
For private attorneys, it is one per 525. This is not equal
justice under the law as promised by the etching on the
entrance to the United States Supreme Court.
Now, it makes a difference if you have a lawyer. If you
have a lawyer, you are more likely to be able to save your
home, to get the health care that you need, to be able to deal
with consumer problems.
I had the honor of chairing the Maryland Legal Services
Corporation. I chaired a commission that looked into legal
services in Maryland. I am proud of the fact that we helped
establish, at the University of Maryland Law School and
University of Baltimore Law School, required clinical
experiences for our law students so they not only get the
experience of handling the case, but understand the need to
deal with people who otherwise could not afford an attorney.
Congress needs to do more in this area. There is no
question about that, and I am hopeful that we will reauthorize
the Legal Service Act and provide additional resources. But I
would like to get your view as to what is the individual
responsibility of a lawyer for equal justice under the law,
including pro bono, and how you see the role of the courts in
helping to establish the efforts among the legal community to
carry out our responsibility.
Judge Sotomayor. I know that there's been a lot of
attention paid to one speech and its variants that I've given.
If you look at the body of my speeches, public service and pro
bono work is probably the main topic I speak at--I speak about.
Virtually every graduation speech I give to law students,
speeches I've given to new immigrants being sworn in as
citizens, to community groups of all types is the importance of
participation in bettering the conditions of our society,
active involvement in our communities.
It doesn't have to be active involvement in politics. I
tell people that. Just get involved in your community, work on
your school boards, work in your churches, work in your
community to improve it.
The issue of public service is a requirement under the code
of the American Bar Association. Virtually every state has a
requirement that lawyers participate in public service in some
way. I have given multiple speeches in which I've talked to law
school bodies and said, ``Make sure your students don't leave
your school without understanding the critical importance of
public service in what they do as lawyers.''
In that, we are in full agreement, Senator. To me, that's a
core responsibility of lawyering. Our founding fathers, they
became what they became, our founding fathers, because of their
fundamental belief of involvement in their society and public
service, and it's, to me, a spirit that is the charge of the
legal profession, because that's what we do, we help people; in
a different way than doctors do, but helping people receive
justice under the law is a critical importance of our work.
Senator Cardin. Very, very well said. I look forward to
working with Congress and the courts in advancing a strategy.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Cardin.
Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman. I'd ask unanimous
consent to put an article from the newspaper this morning, The
Washington Times.
Chairman Leahy. Without objection it will be placed in the
record.
Senator Coburn. Welcome again. First of all, let me
apologize to you because I was not able to hear, although I got
to read some of your testimony yesterday. We have a schedule
that says we must finish health care within a certain time
whether we get it right or wrong, we've got to get it done in a
certain time. And so I was involved with that and I apologize.
No. 2 is I apologize to you for the outbursts that have
occurred in this committee. Anybody who values life like I do
and who is pro-life recognizes that the way you change minds is
not yell at people, you love them and you care about their
concerns and you create to a level of understanding, not
condemnation. So for that, I apologize. I admire your composure
and I thank the Chairman and the Ranking Member for the way
they handled that as well.
I want to spend a few moments with you, but I kind of want
to change the tone here a little bit in terms of what we talk
about. A lot of Americans are watching this hearing and when I
get together with a couple of doctors, they don't understand
half of what I say. When two lawyers talk, most of us who
aren't lawyers, like I'm not, have trouble following. So I want
us to use words that the American people can truly understand
as I both ask you questions and as you answer them. I will try
to do that and I hope that you will as well because I think it
benefits our country to do that.
You have been asked a lot of questions about abortion and
you have said that Roe v. Wade has set a law. Where are we
today? What is the settle law in America about abortion?
Judge Sotomayor. I can speak to what the court has said in
its precedent. In Planned Parenthood v. Casey, the court
reaffirmed the court holding of Roe v. Wade that a woman has a
constitutional right to terminate her pregnancy in certain
circumstances.
In Casey, the court announced that in reviewing state
regulations that may apply to that right, that the court
considers whether that regulation has an undue burden on the
woman's constitutional right. That is my understanding of what
the state of the law is.
Senator Coburn. Let me give you a couple of cases. Let's
say I'm 38 weeks pregnant and we discover a small spina bifida
sac on the lower sacrum, the lower part of the back on my baby
and I feel like I just can't handle a child with that.
Would it be legal in this country to terminate that child's
life?
Judge Sotomayor. I can't answer that question in the
abstract because I would have to look at what the state of the
state's law was on that question and what the state said with
respect to that issue.
I can say that the question of the number of weeks that a
woman is pregnant has been approached to looking at a woman's
act as was changed by Casey. The question is is the state
regulation regulating what a woman does an undue burden. And so
I can't answer your hypothetical because I can't look at it as
an abstract without knowing what state laws exist on this issue
or not.
And even if I knew that, I probably couldn't opine because
I'm sure that situation might well arise before the court.
Senator Coburn. Well, does technology in terms of the
advancement of technology, should it have any bearing
whatsoever on the way we look at Roe v. Wade? For example,
published reports most recently of a 21-week, 21-week, that's
142 days, fetus alive and well now at 9 months of age with no
apparent complications because the technology has advanced so
far that we can now save children who are born prematurely at
that level.
Should that have any bearing as we look at the law?
Judge Sotomayor. The law has answered a different question.
It has talked about the constitutional right of women.
Senator Coburn. I understand that.
Judge Sotomayor. In certain circumstances. As I indicated,
the issue becomes one of what is the state regulation in any
particular circumstance.
Senator Coburn. I understand. But all I'm asking is should
it have any bearing?
Judge Sotomayor. I can't answer that in the abstract
because the question as it would come before me wouldn't be in
the way that you form it as a citizen. It would come to me as a
judge in the context of some action that someone is taking,
whether if it is the state, the state, if it is a private
citizen being controlled by the state challenging that action.
Those issues are----
Senator Coburn. But viability is a portion of a lot of
that, and a lot of the decisions have been made based on
liability. If we now have liability at 21 weeks, why would that
not be something that should be considered as we look at the
status of what can and cannot happen in terms of this right to
privacy that has been granted in Roe v. Wade?
Judge Sotomayor. All I can say to you is what the court has
done.
Senator Coburn. Right.
Judge Sotomayor. And the standard that the court has
applied, what factors it may or may not look at within a
particular factual situation can't be predicted in a way to say
yes, absolutely, that's going to be considered. No, this won't
be considered.
Senator Coburn. All I'm asking is whether it should. Should
viability, should technology at any time be considered as we
discuss these very delicate issues that have such an impact on
so many people. Your answer is that you can't answer it.
Judge Sotomayor. I can't because that's not a question that
the court reaches out to answer. That is a question that gets
created by a state regulation of some sort or an action by the
state that may or may not according to some claimant, place an
undue burden on her.
We don't make policy choices in the court. We look at the
case before us with the interests that are argued by the
parties, look at our precedent and try to apply its principles
to the arguments parties are raising.
Senator Coburn. I'm reminded of one of your coats that says
you do make policy and I won't continue that.
I'm concerned and I think many others are. Does a state
legislature have the right under the Constitution to determine
what is death? Have we statutorily defined, and we have in 50
states and most of the territories, what is the definition of
death. You think that's within the realm of the Constitution
that states can do that?
Judge Sotomayor. It depends on what they are applying that
definition to. So there are situations in which they might and
situations where that definition would or would not have
applicability to the dispute before the court.
All state action is looked at within the context of what
the state is attempting to do and what liabilities it is
imposing.
Senator Coburn. But you would not deny the fact that states
do have the right to set up statutes that define, that give
guidance to their citizen, what constitutes death.
Judge Sotomayor. As I said, it depends on in what context
they are attempting to do that.
Senator Coburn. They are doing it so they limit the
liability of others with regard to that decision which would
inherently be the right of a state legislature as I read the
Constitution. You may have a different response to that.
Which brings me back to technology again. As recently as 6
months ago, we now record fetal heartbeats at 14 days post
conception, we record fetal brain waves at 39 days post
conception. I don't expect you to answer this, but I do expect
you to pay attention to it as you contemplate these big issues.
We have this schizophrenic rule of the law as we have
defined death as the absence of those, but we refuse to define
life as the presence of those.
All of us are dependent at different levels on other people
during all stages of our development from the very early in the
womb, outside of the womb, to the very late. It concerns me
that we are so inaccurate, or inaccurate is an improper term.
Inconsistent in terms of our application of logic.
You said that Roe v. Wade did set a law yesterday and I
believe it is settled under the basis of the right to privacy
which has been there. So the question I'd like to turn to next
is in your ruling, the Second Circuit ruling, and I'm trying to
remember the name of the case, Maloney, the position was that
there is not an individual fundamental right to bear arms in
this country. Is that a correct understanding of that?
Judge Sotomayor. No, sir.
Senator Coburn. Okay. Please educate me if you would.
Judge Sotomayor. In the Supreme Court's decision in Heller,
it recognized an individual rights to bear arms as a right
guaranteed by the second amendment, an important right, and one
that limited the actions the Federal Government could take with
respect to the position of firearms. In that case we are
talking about handguns.
The Maloney case presented a different question. That was
whether that individual right would limit the activities that
states could do to regulate the possession of firearms. That
question is addressed by a legal doctrine.
That legal doctrine uses the word fundamental, but it
doesn't have the same meaning that common people understand
that word to me. To most people the word by its dictionary term
is critically important, central, fundamental, it is sort of
rock basis.
Those meanings are not how the law uses that term when it
comes to what the states can do or not do. The term has a very
specific legal meaning which means is that amendment of the
Constitution incorporated against the states.
Senator Coburn. Through the Fourteenth Amendment?
Judge Sotomayor. And others. But generally, and I shouldn't
say and others, through the 14th. The question becomes whether
and how that amendment to the Constitution, that protection,
applies or limits the states to act.
In Maloney, the issue for us was a very narrow one. We
recognized that Heller held, and it is the law of the land
right now in the sense of precedent that there is an individual
right to bear arms as it applies to Federal Government
regulation.
The question in Maloney was different for us. Was that
right incorporated against the states. We determined that given
Supreme Court precedent, a precedent that had addressed that
precise question and said it is not, so it wasn't fundamental
in that legal doctrine sense, that was the court's holding.
Senator Coburn. Did the Supreme Court say in Heller that it
was not, or did they just fail to rule on it?
Judge Sotomayor. Well, they failed to rule on it, you're
right. But I----
Senator Coburn. There is a very big difference there.
Judge Sotomayor. I agree.
Senator Coburn. Let me continue with that. So I sit in
Oklahoma in my home, and what we have today as law on the land
as you see it is I do not have a fundamental incorporated right
to bear arms, as you see the law today.
Judge Sotomayor. It is not how I see the law.
Senator Coburn. Well, as you see the interpretation of the
law. In your opinion of what the law is today, is my statement
a correct statement?
Judge Sotomayor. No, it's not my interpretation. I was
applying both Supreme Court precedent deciding that question
and Second Circuit precedent that had directly answered that
question and said it's not incorporated.
The issue of whether or not it should be is a different
question, and that is the question that the Supreme Court may
take up. In fact, in his opinion, Justice Scalia suggested it
should, but it is not what I believe. It is what the law has
said about it.
Senator Coburn. So what does the law say today about the
statement? Where do we stand today about my statement that I
have--I claim to have a fundamental, guaranteed, spelled out
right under the Constitution that is individual and applies to
me the right to own and bear arms. Am I right or am I wrong?
Judge Sotomayor. I can't answer the question of
incorporation other than to refer to precedent. Precedent
says----
Senator Coburn. I understand.
Judge Sotomayor [continuing]. As the Second Circuit
interpreted the Supreme Court's precedent----
Senator Coburn. I understand.
Judge Sotomayor [continuing]. That it is not incorporated.
It is also important to understand that the individual issue of
a person bearing arms is raised before the court in a
particular setting.
Senator Coburn. Context, yes.
Judge Sotomayor. And by that, I mean what the court will
look at is a state regulation of your right and then determine
can the state do that or not. So even once you recognize a
right, you are always considering what the state is doing to
limit or expand that right and then decide is that Okay
constitutionally.
Senator Coburn. It is very interesting to me. I went back
and read the history of the debate on the Fourteenth Amendment,
and for many of you who don't know, what generated much of the
Fourteenth Amendment was in reconstruction. Southern states
were taking away the right to bear arms by freed men, recently
freed slaves.
Much of the discussion in the Congress was to restore that
right of the Second Amendment through the Fourteenth Amendment
to restore an individual right that was guaranteed under the
Constitution.
So one of the purposes for the Fourteenth Amendment, one of
the reasons it came about is because those rights were bring
abridged in the southern states post Civil War.
Let me move on. In the Constitution we have the right to
bear arms. Whether it is incorporated or not, it is stated
there. I'm having trouble understanding how we got to a point
where a right to privacy which is not explicitly spelled out
but it spelled out to some degree in the Fourth Amendment,
which has set a law and is fixed, and something such as the
Second Amendment which is spelled out in the Constitution has
not set a law and fixed.
I don't want you to answer that specifically. What I would
like to hear you say is how did we get there? How did we get to
the point where something that is spelled out in our
Constitution isn't guaranteed to us, but something that isn't
spelled out specifically in our Constitution is?
Would you give me your philosophical answer? I don't want
to tie you down on any future decisions, but how did we get
there when we can read this book and it says certain things and
those aren't guaranteed, but the things that it doesn't say
are?
Judge Sotomayor. One of the frustrations with judges and
their decisions by citizens is that, and this was an earlier
response to Senator Cornyn.
What we do is different than the conversation that the
public has about what it wants the law to do. We don't, judges,
make law. What we do is we get a particular set of facts
presented to us, we look at what those facts are, what in the
case of different constitutional amendments is, what states are
deciding to do or not do, and then look at the Constitution and
see what it says and attempt to take its words and the
principles and the precedents that have described those
principles and apply them to the facts before you.
In discussing the Second Amendment as it applied to the
Federal Government, Justice Scalia noted that there had been
long regulations by many states on a variety of different
issues related to the possession of guns.
He wasn't suggesting that all regulation was
unconstitutional. He was holding in that case that DC's
particular regulation was illegal.
As you know, there are many states that prohibit felons
from possessing guns. So does the Federal Government. So it's
not that we make a broad policy choice and say this is what we
want, what judges do. What we look at is what other actors in
the system are doing, what their interest in doing it is and
how that fits to whatever situation they think they have to
fix, what Congress or state legislature has to fix.
All of that is the court's function. So I can't explain it
philosophically. I can only explain it by its setting and what
the function of judging is about.
Senator Coburn. Thank you. Let me follow up with one other
question.
As a citizen of this country, do you believe innately in my
ability to have self-defense of myself? Personal self-defense.
Do I have a right to personal self-defense?
Judge Sotomayor. I'm trying to think if I remember a case
where the Supreme Court has addressed that particular question.
Is there a constitutional right to self-defense? I can't think
of one. I could be wrong, but I can't think of one.
Generally, as I understand, most criminal law statutes are
passed by states. I'm also trying to think if there is any
Federal law that includes a self-defense provision or not. I
just can't.
What I was attempting to explain is the issue of self-
defense is usually defined in criminal statutes by the state's
laws. I would think, although I haven't studied all of the
state's laws. I'm intimately familiar with New York.
Senator Coburn. But do you have an opinion or can you give
me your opinion of whether or not in this country I personally
as an individual citizen have the right to self-defense?
Judge Sotomayor. As I said, I don't know. I don't know if
that legal question has been ever presented.
Senator Coburn. I wasn't asking about the legal question.
I'm asking about your personal opinion.
Judge Sotomayor. But that is sort of an abstract question
with no particular meaning to me outside of----
Senator Coburn. Well, I think that's what American people
want to hear, Your Honor. They want to know, do they have a
right to personal self-defense. Could the Second Amendment mean
something under the Fourteenth Amendment? Does what the
Constitution, how they take the Constitution, not how our
bright legal minds, but what they think is important.
Is it Okay to defend yourself in your home if you're under
attack? In other words, the general theory is do I have that
right? And I understand if you don't want to answer that
because it might influence your position that you might have in
a case, and that's a fine answer with me. Those are the kinds
of things that people would like for us to answer and would
like to know.
Not how you would rule or what you are going to rule, and
specifically what you think about it, but just yes or no. Do we
have that right?
Judge Sotomayor. I know it's difficult to deal with someone
like a judge who is so sort of--whose thinking is so cornered
by law.
Senator Coburn. I know.
Judge Sotomayor. Could I----
Senator Coburn. Kind of like a doctor. I can't quit using
doctor terms.
Judge Sotomayor. That's exactly right. But let me try to
address what you are saying in the context that I can, which is
what I have experience with, which is New York criminal law
because I was a former prosecutor.
I am talking in very broad terms, but under New York law,
if you are being threatened with imminent death or very serious
injury, you can use force to repel that. That would be legal.
The question that would come up and does come up before
juries and judges is how imminent is the threat? If the threat
was in this room, I'm going to come get you and you go home and
get, or I go home, I don't want to suggest I am by the way.
Please, I don't want anybody to misunderstand what I'm trying
to say.
If I go home, get a gun, come back and shoot you, that may
not be legal under New York law because you would have
alternative ways to defend----
Senator Coburn. You will have lots of explaining to do.
Judge Sotomayor. I'd be in a lot of trouble then. But I
couldn't do that under a definition of self-defense. So that is
what I was trying to explain in terms of why in looking at this
as a judge, I'm thinking about how that question comes up and
how the answer can differ so radically given the hypothetical
facts before you.
Senator Coburn. The problem is we doctors think like
doctors. It is hard to get out of the doctor's skin. Judges
think like judges, lawyers think like lawyers.
What American people want to see is inside, what your gut
says. Part of that is why we are having this hearing.
I want to move to one other area. You have been fairly
critical of Justice Scalia's criticism of the use of foreign
law in making decisions. I would like for you to cite for me
either in the Constitution or in the oath that you took outside
of treaties the authority that you can have to utilize foreign
law in deciding cases in a court's law in this country.
Judge Sotomayor. I have actually agreed with Justice Scalia
and Thomas on the point that one has to be very cautious even
in using foreign law with respect to the things American law
permits you to. That is in treaty interpretation or in
conflicts of law because it is a different system of law.
Senator Coburn. But I accepted that. I said outside of
those. In other areas where you will sit in judgment, can you
cite for me the authority either given in your oath or the
Constitution that allows you to utilize laws outside of this
country to make the decisions about laws inside this country?
Judge Sotomayor. My speech and my record on this issue,
because I have never used it to interpret the Constitution or
to interpret American statute is that there is none. My speech
has made that very clear.
Senator Coburn. So you stand by it. There is no authority
for a Supreme Court Justice to utilize foreign law in terms of
making decisions based on the Constitution or statutes?
Judge Sotomayor. Unless the statute requires you or directs
you to look at foreign law, and some do by the way, the answer
is no. Foreign law cannot be used as a holding or a precedent
or to bind or to influence the outcome of a legal decision
interpreting the Constitution or American law that doesn't
direct you to that law.
Senator Coburn. Well, let me give you one of your quotes.
`To suggest to anyone that you can outlaw the use of foreign or
international law is a sentiment that is based on a fundamental
misunderstanding. What you would be asking American judges to
do is to close their mind to good ideas. Nothing in the
American legal system prevents us from considering those
ideas.'
We don't want judges to have closed minds, just as much as
we don't want judges to consider legislation and foreign law
that is developed through bodies, elected bodies outside of
this country to influence either rightly so or wrongly so,
against what the elected representatives and Constitution of
this country says.
So would you kindly explain the difference that I perceive
in both this statement versus the way you just answered?
Judge Sotomayor. There is none. If you look at my speech,
you will see that repeatedly I pointed out both that the
American legal system was structured not to use foreign law, it
repeatedly underscored that foreign law could not be used as a
holding as precedent or to interpret the Constitution of the
statute.
What I pointed out to in that speech is that there is a
public misunderstanding of the word use. What I was talking
about, one doesn't use those things in the sense of coming to a
legal conclusion in a case.
What judges do, and I cited Justice Ginsburg, is educate
themselves. They build up a story of knowledge about legal
thinking, about approaches that one might consider. But that is
just thinking. It's an academic discussion when you're talking
about thinking about ideas. Then it is how most people think
about the citation of foreign law in a decision.
They assume that if there is a citation to foreign law,
that is driving the conclusion. In my experience when I have
seen other judges cite foreign law, they are not using it to
drive the conclusion, they are using just to point something
out about a comparison between American law or foreign law. But
they are not using it in the sense of compelling a result.
Senator Coburn. I'm not sure I agree with that on certain
Eighth Amendment and Fourteenth Amendment cases.
Let me go to another--I have just a short period of time.
Do you feel--it has been said that we should worry about what
other people think about us in terms of how we interpret our
own law, and I'm paraphrasing not very well I believe.
Is it important that we look good to people outside of this
country? Or is it more important that we have a jurisprudence
that is defined correctly and followed correctly according to
our Constitution? And whatever the results may be, it is our
result rather than a politically correct result that might
please other people in the world?
Judge Sotomayor. We don't render decisions to please the
home crowd or any other crowd. I know that because I have heard
speeches by a number of Justices, that in the past, Justices
have indicated that the Supreme Court hasn't taken many treaty
cases, that maybe it should think about doing that because we
are not participating in the discussion among countries on
treaty positions that are ambiguous.
That may be a consideration to some Justices. Some have
expressed that as a consideration. My point is you don't rule
to please any crowd. You rule to get the law right under its
terms.
Senator Coburn. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Senator Coburn.
Senator Whitehouse.
Senator Whitehouse. Thank you, Mr. Chairman, and welcome
again, Your Honor. I have to say, before I get into the
questions that I have for you, that I, like many, many, many
Americans, feel enormous pride that you are here today. And I
was talking with some friends in Providence when I was home
about your nomination, and I said, ``It actually gives me goose
bumps to think about the path that has brought you here today
and, more importantly, to think about''--because it is not
about you--more important to think what that means about
America, that path. And they said, ``No, no. You can't say
`goose bumps.' You have to say `piel de gachina.' '' And so I
promised them that I would, so I am keeping that promise right
now.
But I want to tell you that I think in the way you have
handled yourself in this Committee so far, you have done
nothing but to vindicate and reinforce the pride that so many
people feel in you. And I hope that as this process continues--
I know these days are long, and it can be a bit of an order--I
hope that you very much feel buoyed and sustained by that pride
and that optimism and that confidence that people across this
country feel for you and that so many people in this room feel
for you. So I wanted to say that.
I also wanted to fulfill another promise, which is the one
I made to you, that in my opening statement I said I would ask
you to make a simple pledge, and that simple pledge is that you
will decide cases on the law and the facts before you; that you
will respect the role of Congress as representatives of the
American people; that you will not prejudge any case, but will
listen to every party that comes before you; and that you will
respect precedent and limit yourself to the issues that the
Court must decide.
May I ask you to make that pledge?
Judge Sotomayor. I can. That's the pledge I would take if I
was--that I took as a district court judge, as a circuit court
judge, and if I am honored to be confirmed by this body, that I
would take as a Supreme Court Justice, yes.
Senator Whitehouse. Thank you.
Some of my colleagues have raised questions about your role
at the Puerto Rican Legal Defense and Education Fund many years
ago before you left that organization to become a Federal trial
judge in 1992, I guess it was. I just want to clarify. That was
clearly a part of your history and your package that came to
the Senate at the time of those confirmations, when you were
confirmed both in 1992 and 1997, so this is nothing new to the
Senate. Is that correct?
Judge Sotomayor. That's correct.
Senator Whitehouse. And in terms of the way that the Puerto
Rican Legal Defense and Education Fund operated, you were a
member of the board. Is that correct?
Judge Sotomayor. I was.
Senator Whitehouse. Did the attorneys for the Puerto Rican
Legal Defense and Education Fund make it a practice to vet
their legal filings with the board first? Did the board approve
individual briefs and arguments that were made by attorneys for
the organization?
Judge Sotomayor. No, because most of us on the board didn't
have civil rights experience. I had actually--when I was a
prosecutor in private practice, that wasn't my specialty of
law. Even if they tried to show it to me, I don't know that I
could have made a legal judgment even if I tried. That was not
our function.
Senator Whitehouse. And I think that is customary in
charitable organizations for the board not to sign off
specifically on briefs and other legal filings that the
attorneys make. Certainly in the years I have spent on the
boards of charitable organizations, it has never been something
presented to me. So I appreciate that.
In 1992 and in 1997, when the Senate was, again, fully
aware of all that, was there, to your recollection, the
objection made in those confirmations?
Judge Sotomayor. I don't believe any question was asked
about my service on the Puerto Rican Legal Defense and
Education Fund. The fund is an organization that has and has
been considered in the mainstream of civil rights organizations
like the NAACP and the Mexican American Legal Defense and
Education Fund, promotes the civil rights of its community.
Senator Whitehouse. Let me turn to some more general
questions, if I may, and one has to do with the role of the
jury--not just in trials. Obviously, you are eminently familiar
with the role of juries in trials. I think you will be the only
member of the United States Supreme Court, if you are
confirmed, to actually have had Federal trial judge experience,
which I think is a valuable attribute. But I am not thinking so
much about the role of the jury in the courtroom as I am about
the role of the jury in the American system of government.
When the Constitution was set up, as you know so well, the
Founders made great efforts to disaggregate power, to create
checks and balances, and the matrix of separated powers that
they created has served us very, very well.
In the course of that, or as a part of that, the Founders
also revealed some very strongly felt concerns about the
hazards of both unchecked power and of the vulnerability of the
legislative and executive branches to either corruption or to
being consumed and overwhelmed by passing passions. And I would
love to hear your thoughts on the importance of the jury in
that American system of Government, and if you could, with
particular reference to the concerns of the Founders about the
vulnerabilities of the elected branches.
Judge Sotomayor. Like you, I am--and perhaps because I was
a State prosecutor and I have been a trial judge, and so I've
had very extensive experience with jury trials in the American
criminal law context. I have had less in the civil law context
as a private practitioner, but much more as a district court
judge.
I can understand why our Founding Fathers believed in the
system of juries. I have found in my experience with juries
that virtually every juror I have ever dealt with, after having
experienced the process, came away heartened, more deeply
committed to the fundamental importance of their role as
citizens in that process. Every juror I ever dealt with showed
great attention to what was going on, took their
responsibilities very seriously.
I had a juror who was in the middle of deliberations, on
her way to my courtroom--not on her way to my courtroom--on her
way home from court on the previous day broke her leg, was in
the hospital the entire night, came back the next morning on
time, in a wheelchair, with a cast that went up to her hip.
What a testament both to that woman and to the importance of
jury service to our citizens. I was very active in ensuring
that her service was recognized by our court.
It has a central role. Its importance to remember is that
it hasn't been fully incorporated against the States. Many
States limit jury trials in different ways. And so the question
of what cases require a jury trial and what don't is still
somewhat within the discretion of States. But it is a very
important part of a sense of protection for defendants accused
in criminal cases, and one that I personally value from my
experience with it.
Senator Whitehouse. And does the Founders' concern about
the potential vulnerabilities or liabilities about the elected
branch illuminate the importance of the jury system?
Judge Sotomayor. Senator, I--as I see the jury system, I
don't know exactly--I don't actually--and I've read the
Federalist Papers and I've read other historical accounts. The
jury system was--I thought the basic premise of it was to
ensure that a person subject to criminal liability would have a
group of his or her peers pass judgment on whether that
individual had violated the law or not.
To the extent that the Constitution looked to the courts to
determine whether a particular act was or was not
constitutional, it seems to me that that was a different
function than what the jury was intended to serve. The jury, as
I understood it, was to ensure that a person's guilt or
innocence was determined by a group of peers. To the extent
that that has a limit on the elected branches, it's to ensure
that someone is prosecuted under the law and that the law is
applied to them in the way that the law is written and
intended.
Senator Whitehouse. And where the jury requirement applies
to civil trials, the argument would be the same. Correct?
Judge Sotomayor. Yes.
Senator Whitehouse. Again, on the question of the American
system of Government, how would you characterize the Founders'
view of any exercises of unilateral or unchecked power by any
of the three branches of Government in the overall scheme?
Judge Sotomayor. The Constitution by its terms sets forth
the powers and limits of each branch of Government, and so to
the extent that are limits recognized in the Constitution, that
is really what the Constitution intends. The Bill of Rights,
the Amendments set forth there are often viewed as limits on
Government action. And so it's a question always of looking at
what the Constitution says and what kind of scope it is for a
Government action at issue.
Senator Whitehouse. Would you feel, in light of all of the
attention--very, very careful and thoroughly thought out
attention--that the Constitution gives to establishing and
enforcing a whole variety of different checks and balances
among the different powers of Government, that a judge who was
presented with an argument that a particular branch of
Government should exercise or have the authority to exercise
unilateral unchecked power in a particular area should approach
that argument with a degree of heightened caution or attention?
Judge Sotomayor. The best framework that has been set out
on this question of a unilateral act by one branch or another--
but usually the challenge is raised when the Executive is doing
something, because the Executive executes the law, takes the
action, typically. The best description of how to approach
those questions was done by Justice Jackson in his concurring
opinion in the Youngstown case. And that opinion laid out a
framework that generally is applied to all questions of
Executive action, which is that you have to look at the powers
of each branch together. You have to start with what has
Congress said, express or implicitly. And if it's authorized to
do something, to let the President do something, then the
President's acting at the height of his powers. If Congress has
implicitly prohibited--expressly or implicitly prohibited
something, then the President's acting at the lowest ebb of his
powers.
There is a zone of twilight, which is the zone in between,
which is: Has Congress said something or not said something?
In all of the situations, once you've looked at what
Congress has done or not done, you then are directed to look at
what the President's powers may be under the Constitution minus
whatever powers Congress has in that area. So the whole
exercise is really, in terms of Congress and the Executive, an
exercise of the two working together. And, in fact, that's the
basic structure of our system of Government. That's why
Congress makes the laws. The President can veto them, but he
can't make them. He can regulate if the Congress gives him the
authority to do so, and within other delegated authorities or--
I shouldn't use the word ``delegated'' because it has a legal
meaning. But the point is that that question is always looked
at in light of what Congress has said on the issue and in light
of Congress' power as specified in the Constitution.
Senator Whitehouse. Let me change to a more law
enforcement-oriented topic. I appreciate, first of all, very
much your service in District Attorney Morgenthau's office. It
is an office that prosecutors around the country look at with
great pride and sense of its long tradition and of the very
great capability of the prosecutors who serve in it. It is a
very proud office, and I am delighted that you served there,
and I think it says a great deal about you that, coming out of
law school and college with the stellar academic record that
you had and an entire world of opportunities open to you, you
chose that rather poorly paid office. And since you have met 89
of us, I doubt you remember all of our conversations, but when
you and I had the chance to meet, we compared who had the worst
office as a new prosecutor, and I think you won.
[Laughter.]
Senator Whitehouse. And so it was a very important moment
for, at that point, a quite new lawyer to make a very
significant statement about who you were and what your purpose
was. And so I very much appreciate that you made that choice,
and I think prosecutors like my colleagues Senator Klobuchar
and many others around this country, our Chairman, Senator
Leahy, made that choice over the years, and it is one that I
think merits a salute.
One of the things that prosecutors have to deal with all
the time is search and seizure and warrants, and my question
has to do with the warrant requirement under the Constitution.
I see the Constitution as being changeless, timeless, and
immutable. What changes is society, as you pointed out in your
testimony earlier, and technology. And so new questions arise,
and I would be interested in your reaction to the difference
between the experience of society and the technology of society
when the Founders set up the warrant requirement originally,
and today.
When the Founders set up the warrant requirement
originally, when the sheriff or somebody went to seize
property, to bring it in as evidence for a trial or to condemn
it as contraband, that was sort of the end of it. If it was
evidence, when it was done it was returned and went back;
particularly papers were returned, and that was the end of it.
Then came the Xerox machine, and now the Government could make
copies of what they took, and it was returned, as always, just
as the Founders had intended, but copies were sprinkled
throughout Government files, very often ones that ended up in
archives buildings in dusty boxes that would have taken
enormous effort to locate. But, nevertheless, they remained
available.
And nowadays, with electronic databases and electronic
search functions, matters that once would have been returned to
the individual and that envelope of privacy that was opened by
the warrant would have been closed again are now potentially
eternally available to Government, eternally searchable, and it
raises some very interesting privacy questions that we will
have to face in this Congress and in this Senate as we begin to
take on issues particularly of cyber security, cyber attack,
cyber terrorism, and take advantage of what technology can
bring to bear in the continued struggle against terrorist
extremists.
So I would be interested in your thoughts on how the
Constitution, which is unchanged through all of that, what
analysis you would go through to see whether the change from a
quickly opening and closing privacy envelope to one that is now
essentially open season forever, how would you go about
analyzing that as a judge, given that the Constitution is a
fixed document?
Judge Sotomayor. I think, as I understand your question,
Senator, that there are two issues--if not more, but the two
that I note as more starkly for me in your question is the one
of the search and seizure and the Fourth Amendment as it
applies to taking evidence from an individual and use it
against him or her in a current proceeding.
Senator Whitehouse. Yes, which is a constant. That stayed
the same.
Judge Sotomayor. That is the structure.
Not so long ago, the Supreme Court dealt with a
technologically new situation, which was whether an individual
had a right to expect a warrant to be gotten before law
enforcement flew over his or--I think it was a ``his'' in that
case--his home and took readings of the thermal energy
emanating from his home, and then going in to see if the person
was growing marijuana.
Senator Whitehouse. The FLIR case.
Judge Sotomayor. Exactly. And in that case, the reason for
that case is that apparently--I'm not an expert in marijuana
growing, but apparently, when you're growing marijuana, there's
certain heating lights that you need. At least that's what the
case was describing. And it generates this enormous amount of
heat that wouldn't generally come from a home unless you were
doing something like this.
And what the Court did there--in an opinion by Justice
Scalia, I believe it was--is it looked at the embedded
questions of privacy in the home that underlied the
unreasonable search and seizure, and the Court there, as I
mentioned, determined that acts taken in the privacy of one's
home would commonly not be expected to be intruded upon unless
the police secured a warrant. And to the extent that the law
had generally recognized that if you worked actively to keep
people out of your home--you locked your windows, you locked
your doors, you didn't let people walk by and peek through, you
didn't stand at your front door and show people what you were
doing--that you were exhibiting your expectation of privacy.
And to the extent that new technology had developed that
you wouldn't expect to intrude on that privacy, then you were
protected by the Warrant Clause, and the police had an
obligation to go talk to a magistrate and explain to them what
their evidence was and let the magistrate--I use ``the
magistrate'' in that more global sense. It would be a judge,
but you would let a judge decide whether there was probable
cause to issue the warrant--reasonable suspicion, probable
cause--probable cause to issue the warrant.
That's how the courts addressed the unreasonable--or have
addressed, the Supreme Court has, the unreasonable search and
seizure, and balance the new technology with the expectations
of privacy that are recognized in the Fourth Amendment.
Yes, I thought a separate question which in my mind is
different than the right to privacy with respect to personal
information that could be otherwise available to the public as
a byproduct of a criminal action or as a byproduct of your
participation in some regulated activity of the Government.
There are situations in which, if your industry is regulated,
you are going to make disclosures to the Government, and then
the question becomes how much and what circumstances can then
Government make copies, put it in an electronic data base or
use it in another situation.
So much of that gets controlled by the issues you are
saying Congress is thinking about, which is, What are people's
rights of privacy in their personal information? Should we as
Congress as a matter of policy regulate that use?
The Court itself had been commanded by Congress to look at
certain privacy information of individuals and guard it from
public disclosure in the data bases you are talking about. So
we have been told, ``Don't go using somebody's Social Security
number and putting it in a data base.'' That is part of a
public document, but we have been told, ``Don't do that.'' And
there is a reason for that: because there is not only the
issues of identity theft but other harms that come to people
from that situation.
So that broader question, as we many, is not one that one
could talk about a philosophy about. As a judge, you have to
look at the situation at issue, think about what Congress has
said about that in the laws, and then consider what the
Constitution may or may not say on that question, depending on
the nature of the claim before the Court.
Senator Whitehouse. Your Honor, I thank you. I wish you
well.
Judge Sotomayor. Thank you.
Senator Whitehouse. And I congratulate you on your
appearance before this Committee so far.
Judge Sotomayor. Thank you, sir.
Chairman Leahy. Senator Whitehouse, thank you. I appreciate
the comments getting into the area of criminal law.
Of course, Senator Whitehouse has served as both a U.S.
Attorney and as an Attorney General and brings a great depth of
knowledge, as do several on both the Republican and Democratic
side, to this Committee. And I also appreciate you taking less
than your time. I hope maybe you will be setting a standard as
we go forth.
[Laughter.]
Chairman Leahy. We will take a 15-minute break.
[Recess at 11:35 a.m. to 11:53 a.m.]
Chairman Leahy. There has been an interest expressed by--I
was going to say by all the Senators, but most Senators have
left the hearing room. Do not think that does not mean that
there is not going to be more questions, Judge, because there
will be this round and another round and if it is a case of all
the questions having been asked, but not everybody has asked
all the questions, some will come back and ask them again.
What we are going to do, we are going to have Senator
Klobuchar and Senator Kaufman ask questions. We will then break
for lunch. We will then have Senator Specter and Senator
Franken ask questions. I am saying this for the purpose, also,
of those who have to schedule and plan.
We will take a break for lunch after these two Senators. We
will then go into the traditional closed door session, which
will be held in the Senate Judiciary Committee room.
So, Senator Klobuchar, we seem to be heavy on prosecutors
here. She is also a former prosecutor. I yield to you.
Senator Klobuchar. Thank you very much, Mr. Chairman. Good
afternoon, Judge. Thank you, again, for all of your patience
and your thoughtful answers. Really, everyone has been focusing
on you sitting there. I have been focusing on how patient your
mother has been through this whole thing, because I ran into
her in the restroom just now and, I can tell you, she has a lot
she would like to say. She has plenty of stories that she would
like to share about you. I thought I might miss my questioning
opportunity.
Judge Sotomayor. Senator, don't give her the chance.
Senator Klobuchar. But I was thinking she is much more
patient than my mother has been, who has been waiting for this
moment, for me to ask these questions, and leaving messages,
like, ``How long do these guys have to go on? ''
My favorite one, the recent one, was, ``I watched Senator
Feinstein and she was brilliant. What are you going to do? ''
So let us move on.
Judge Sotomayor. We should introduce our mothers. Okay?
Senator Klobuchar. Exactly. I have some quick questions
here at the beginning just to follow-up on some of the issues
raised by my colleagues. Senator Coburn was asking you about
the Heller case and Second Amendment issues, and I personally
agree with the Heller case. But I remember that yesterday that
you said that in Maloney, your second circuit case, that you
were bound by precedent in your circuit, but that you would
keep an open mind if the Supreme Court takes up the question of
whether the Second Amendment can be incorporated against the
states. Is that right?
Judge Sotomayor. Yes, Senator. I take every case case-by-
case and my mind is always open and I make no prejudgments as
to conclusions.
Senator Klobuchar. Okay. Then a follow-up on a question
that Senator Whitehouse was asking you about the Puerto Rican
Legal Defense Fund. You were on that board. One just minor
follow-up. But isn't it true that the ABA, that their code of
conduct, the American Bar Association code of conduct bars
board members from engaging in litigation because of a lack of
an actual lawyer-client relationship?
Judge Sotomayor. Yes.
Senator Klobuchar. Then, finally, just one point. We have
heard so much about your speech in which you used the phrase
``wise Latina,'' and I am not going to go over that again. But
I did want to note for the record that you made a similar
comment in another speech that you gave back in 1994, which you
have provided not only in this proceeding, but you also
provided it when you came before the Senate for confirmation to
the circuit court in 1997 and 1998.
No Senator at that time--do you remember them asking you
about it or making any issue about it at the time?
Judge Sotomayor. No.
Senator Klobuchar. All right. Thank you. Now, we can move
on to what I want to talk about, which is your work as a
criminal prosecutor. Senator Whitehouse initially asked a few
questions about that.
You were quoted in the New York Times a while back about
your time there and you said, ``The one thing I have found is
that if you come into the criminal justice system on a
prosecutorial or defense level thinking that you can change the
ills of society, you are going to be sorely disappointed. This
is not where those kinds of changes have to be made.''
Do you want to elaborate on that a little bit?
Judge Sotomayor. By the time a criminal defendant ends up
in court, they've been shaped by their lives. If you want to
give people the best opportunity of success at life, it's a
message I deliver frequently to my community, it has to be
through early childhood forward.
If you're waiting to do that once they're before a judge in
court, your chances of success have diminished dramatically.
And so one of my messages in many of my speeches to my
community groups is pay attention to education.
It's the value mom taught me, but her lesson was not lost
on me when I became a prosecutor and it's a lesson that I
continue to promote, because I so fervently believe it.
The success of our communities depends on us improving the
quality of our education of our children and parental
participation in ensuring that that happens in our society.
Senator Klobuchar. It also reminded me of that comment
about some of the comments you have made about the limited
roles, that a prosecutor has one role, and the limited role
that a judge may have to respect that judicial role of not
making the laws, but interpreting the laws. Would that be a
correct summary?
Judge Sotomayor. That is. In the statement I made to the
newspaper article, I was focusing on a different part of that,
but it is. As a prosecutor, my role was not to look at what I
thought the punishment should have been, because that was set
in law.
Sentences are set by Congress within statutory ranges, and
my role was to prosecute on behalf of the people of the State
of New York. And that role is different than one that I would
do if I were a defense attorney, whose charge is to do
something else to ensure that a defendant is given a fair trial
and that the government has proven its case beyond a reasonable
doubt.
But we cannot remedy the ills of society in a courtroom. We
can only apply the law to the facts before us.
Senator Klobuchar. I think Justice Ginsberg made a similar
comment in an article this weekend, in an interview she did, as
she was talking about--this was her exact quote, ``The
legislature can make the change, can facilitate the change, as
laws like the Family Medical Leave Act do''--she was talking
about family arrangements--``but it is not something a court
can decree.'' ``A court can't tell the man,'' she said, ``
`you've got to do more than carry out the garbage.' ''
I thought that was another way of--you do not have to
comment on that, but it was another way of making the same
point.
The other thing that I wanted to focus on was just that
role as a prosecutor, some of the difficult decisions you have
to make about charging cases, for instance. Sometimes you have
to make a difficult decision to charge a family member maybe in
a drunk driving case where someone kills their own child
because they were drunk or you have to make a decision when the
court of public opinion has already decided someone is guilty,
but you realize you do not have enough evidence to charge the
case.
Do you want to talk about maybe a specific example of that
in your own career as a prosecutor or what goes into your
thinking on charging?
Judge Sotomayor. I was influenced so greatly by a
television show in igniting the passion that I had as being a
prosecutor, and it was Perry Mason. For the young people behind
all of you, they may not even know who Perry Mason was.
But Perry Mason was one of the first lawyers portrayed on
television and his storyline is that in all of the cases he
tried, except one, he proved his client innocent and got the
actual murderer to confess.
In one of the episodes, at the end of the episode, Perry
Mason, with the character who played the prosecutor in the
case, were meeting up after the case and Perry said to the
prosecutor, ``It must cause you some pain having expended all
that effort in your case to have the charges dismissed.'' And
the prosecutor looked up and said, ``No. My job as a prosecutor
is do justice and justice is served when a guilty man is
convicted and when an innocent man is not.''
And I thought to myself that's quite amazing to be able to
serve that role; to be given a job, as I was, by Mr.
Morgenthal, a job I'm eternally grateful to him for, in which I
could do what justice required in an individual case.
And it was not without bounds, because I served a role for
society and that role was to ensure that the public safety and
public interests were fully represented. But prosecutors, in
each individual case, at least in my experience particularly
under the tutelage of Mr. Morgenthal, was we did what the law
required within the bounds of understanding that our job was
not to play to the home crowd, not to look for public approval,
but to look at each case, in some respects, like a judge does,
individually.
And that meant, in some cases, bringing the tough charge,
and I was actually known in my office for doing that often, but
that's because I determined it was appropriate often. But
periodically, I would look at the quality of evidence and say
there's just not enough.
I had one case with an individual who was charged with
committing a larceny from a woman and his defense attorney came
to me and said, ``I never ever do this, but this kid is
innocent. Please look at his background. He's a kid with a
disability. Talk to his teachers. Look at his life. Look at his
record. Here it is,'' and he gave me the file.
Everything he said was absolutely true. This was a kid with
not a blemish in his life. And he said, ``Please look at this
case more closely.'' And I went and talked to the victim and
she--I had not spoken to her when the case was indicted. This
was one of those cases that was transferred to me, and so it
was my first time in talking to her, and I let her tell me the
story and it turned out she had never seen who took her
pocketbook.
In that case, she saw a young man that the police had
stopped in a subway station with a black jacket and she thought
she had seen a black jacket and identified the young man as the
one who had stolen her property.
The young man, when he was stopped, didn't run away. He was
just sitting there. Her property wasn't on him. And he had the
background that he did. And I looked at that case and took it
to my supervisor and said, ``I don't think we can prove this
case.'' And my supervisor agreed and we dismissed the charges.
And then there are others that I prosecuted, very close
cases, where I thought a jury should decide if someone was
guilty and I prosecuted those cases and, more often than not,
got conviction.
My point is that that is such a wonderful part of being a
prosecutor. That TV character said something that motivated my
choices in life and something that holds true.
And that's not to say, by the way, and I firmly, firmly
believe this, defense attorneys serve a noble role, as well.
All participants in this process do, judges, juries,
prosecutors and defense attorneys. We are all implementing the
protections of the Constitution.
Senator Klobuchar. Thank you. That was very well said. I
want to take that pragmatic experience that you had not just as
a civil litigator, but also as a prosecutor. A lot has been
said about whether judges' biases or their gender or their race
should enter into decision making.
I actually thought that Senator Schumer did a good job of
asking you questions where, in fact, you might have been
sympathetic to a particular victim or to a particular
plaintiff, but you ruled against them. That actually gave me
some answers to give to this baggage carrier that came up to me
at the airport in Minneapolis.
It was about a month ago, after you had just been
announced, and he came up and he said, ``Are you going to vote
for that woman? '' At first, I did not even know what he was
talking about. I said, ``What? '' He said, ``Are you going to
vote for that woman? '' I said, ``Well, I think so, but I want
to ask her some questions.''
He said, ``Well, aren't you worried that her emotions get
in front of the law? '' I thought if anyone had heard the
cases, the TWA case, where you decided against--had to make a
decision from some very sympathetic victims, of families of
people who had been killed in a plane crash, and a host of
other cases where you put the law in front of where your
sympathies lie, I think that would have been a very good answer
to him.
But another piece of it, but it is a very different part of
it, is the practical experiences that you have had, the
pragmatic works that you have done. I just wanted to go through
some of the cases that you have had, the criminal cases that
you have handled as a judge and talk to you a little bit about
how that pragmatic experience might be helpful on the courts;
not leading you to always side with the prosecution, obviously,
but helping you to maybe ferret through the facts, as you have
been known to be someone that really focuses on the facts.
One of them is the United States v. Falso case and this is
a case where child pornography was found in a guy's home and on
his computer. You ruled that although the police officers did
not have probable cause for the search warrant, that the
evidence obtained in the search, the child pornography and the
computer, should still be considered under the good faith
exception to the inclusionary rule, because the judge had not
been knowingly misled. In other words, it was a mistake.
Can you talk about that case and how perhaps having that
kind of experience on the front line helps you to reach that
decision, because there was someone, I believe, that dissented
in that case?
Judge Sotomayor. That case presented a very complicated
question in second circuit law. There had been two cases
addressing how much information a warrant has to contain and
what kind in order for the police to search a defendant's home
or--I shouldn't say a home--a computer to see if the computer
contained images of child pornography.
The two cases--I should say the two panels--I wasn't a
member of either of those panels--had very extensive discussion
about the implications of the cases because they involved the
use of the Internet and how much information the police should
or should not have before they looked to get a warrant to
search someone's computer, because the computer does provide
people with freedom of speech, at least with respect to
accessing information and reading it and thinking about it.
In the case before me, I was looking at it in the backdrop
of the conflict that it appeared to contain in our case law and
what our case law said was important for a police officer to
share with a judge and examined the facts before my case,
looking at the information that the police had before them and
considering whether, in light of existing second circuit law,
as it addressed this issue, had the police actually violated
the Constitution--I hope I can continue.
Chairman Leahy. You can continue. That was not a comment
from above. I have certain powers as Chairman, but not that
much.
Senator Klobuchar. Please go on.
Judge Sotomayor. Whether they should get a warrant or not.
And one member of the court said yes and they had violated the
Constitution and I joined that part of the opinion because I
determined, examining all of the facts of that case and the
law, that that was the way the law--the result the law
required.
But then I looked at what the principles underlying the
unreasonable search and seizures are without a warrant and
looked at the question of what was the doctrine that underlay
there, and what doctrine it underlays is that you don't want
the police violating your constitutional rights without a good
faith basis, without probable case.
And that's why you have a judge make that determination.
It's why you require them to go to a judge. And so what I had
to look at was whether we should make the police responsible
for what would have been otherwise a judge's error, not their
error.
They gave everything they had to the judge and they said to
the judge, ``I don't know.'' Even if they thought they knew,
that isn't what commands the warrant. It's the judge's review.
So I was the judge in the middle. One judge joined one part
of my opinion. The other judge joined the other part of the
opinion. And so I held that the act violated the Constitution,
but that the evidence could still be used because the officers
had--there was, in law, a good faith exception to the error in
the warrant.
Senator Klobuchar. I think you made a similar finding with
different underlying facts in United States v. Santa, when that
involved a clerical error, and then that was a case where the
underlying arrest warrant--where someone had been arrested,
they found cocaine, and you allowed that in on the basis that
the underlying arrest warrant, even though it was false, there
had not been a warrant out there, it had been removed, that
that was a clerical error and they could still use the cocaine.
Judge Sotomayor. Well, in fact, it's a holding the Supreme
Court--an issue the Supreme Court addressed just this term.
Senator Klobuchar. Exactly.
Judge Sotomayor. And came out--or I came out the way the
Supreme Court did on that.
Senator Klobuchar. The Herring case.
Judge Sotomayor. Yes.
Senator Klobuchar. Yes. Very good. The piece of that case
in the Supreme Court that is most interesting to me in terms of
that issue we have been talking about, the practical knowledge
and how that plays into decisions, is the Melendez-Diaz case,
which you were not involved in. It was a U.S. Supreme Court
case.
But this is just from my own practical work as a prosecutor
and it was a contested case with the Supreme Court. It did not
divide ideologically. In fact, both Justice Breyer and Justice
Roberts were in the dissent that Justice Kennedy wrote. It was
a 5-4 decision.
In that case, the issue was whether or not, with the
confrontation clause, whether or not lab workers, crime lab
workers should be called in to have to testify for drugs and
what the tests showed within the drugs and things like that.
I just wondered what your reaction was to that case, how
you would have analyzed it. I agree with the dissent in that
case. I think that this could really open up 90 years of
precedent. I think it is unreasonable for what we should expect
of the criminal justice system, and there has been some pretty
strong language in the dissent of a fear that this will create
some difficulty for prosecutors to follow through on their
cases and get the evidence in.
Judge Sotomayor. It's always difficult to deal with
people's disappointments about cases, particularly when they
have personal experiences and have their own sense of the
impact of a case.
I was a former prosecutor, it's difficult proving cases as
it is, calling more witnesses adds some burdens to the process.
But at the end, that case is a decided case and so it's holding
now. It is holding and that's what guides the court in the
future on similar issues, to the extent there can be some.
As I said, I do recognize that there can be problems, as a
former prosecutor, but that also can't compel a result. And all
of those issues have to be looked at in the context of the
court's evaluation of the case and the judge's view of what the
law permits and doesn't permit.
Senator Klobuchar. I will say there was an interesting
story a few weeks ago about jokes that you have been tenacious
about getting to the bottoms of facts when you have cases and
there were actually some experts that criticized you for
spending too much time trying to figure out the facts, which I
thought was a pretty unique criticism in the halls of
criticism.
In fact, you were defended by a former clerk to Clarence
Thomas who said that you are extraordinarily thorough and a
judge would ordinarily be praised for writing thorough
opinions.
So when we were talking about Melendez-Diaz and some of
those issues, it seems to me that when you have looked at cases
involving criminal justice or really any issue, whether it is
that Vermont Ferry case that you did or other ones, you really
did delve into the facts.
Do you want to talk a little bit about why that is
important?
Judge Sotomayor. The facts are the basis for the legal
decision. A judge deals with a particular factual setting and
applying the law to those facts. To the extent that there's any
criticism that I do that on the court of appeals, we're not
fact-finders, but we have to ensure that we understand the
facts of the case to know what legal principle we're applying
it to.
A judge's job, whether it's on the trial level, the circuit
court or even the Supreme Court, is not to create hypothetical
cases and answer the hypothetical case. It's to answer the case
that exists.
And so in my view, and I'm not suggesting any justice does
this or doesn't do it, but I do think that my work as a state
prosecutor and a trial judge sensitizes me to understanding and
approaching cases starting from the facts and then applying the
law to those facts as they exist.
And, again, I don't want to suggest that not all judges do
that, but because I--because of my background, perhaps like
Justice Souter, who also has the reputation of carefully
looking at the facts and applying the law to the facts, it's
maybe that background that people are noticing and noticing
where we picked up that habit.
Senator Klobuchar. Very good. In a report issued last week,
The Transactional Record Access Clearinghouse, I did not know
there was such a thing, found that you sent more convicts to
prison and handed out longer sentences than your colleagues did
when you were a district court judge.
One statistic found that you handed out sentences of
greater than 6 months to 48 percent of convicted criminals in
white collar cases, while your colleagues gave out sentences of
6 months or more to just 36 percent.
You were also twice as likely as your colleagues to send
white collar criminals to 2 years or more in prison. I have
found the white collar cases to be some of the most challenging
cases that we had in our office when I was a prosecutor. They
were challenging because there was oftentimes sympathy.
Maybe this is dating myself, 10 years ago, there used to be
more sympathy, but there was sympathy to people who were
pilots. We had tax evasion cases with pilots or we had a judge
that we prosecuted who had a half-day of his friends come and
testify that he should not go to jail, including the former
Miss America.
So I have found those cases to be difficult. Could you talk
a little bit about your view of sentencing, in general, and
sentencing of white collar defendants, in particular?
Judge Sotomayor. It should be remembered that when I was a
district court judge, the sentencing laws were different than
they have become during my 12 years on the court of appeals.
That--and it makes me sound ancient, but back in the days when
I was a district court judge, the sentencing guidelines were
focused on the amount of a fraud and didn't consider the number
of victims or the consequences on the number of victims of a
crime.
Perhaps because of my prosecutorial background, perhaps
because I considered the perspective of prosecutors who came
before me, that the guidelines--and their arguments--that the
guidelines didn't adequately consider the number of victims and
that that should be a factor, because someone who commits
100,000 $1--not $1--$1,000 crimes may be as culpable as the
person who does a one-time act of $100,000, and depending on
the victims and the impact on the victims.
Those are factors that one should consider. And so many of
the white collar sentences that you are talking about were
focused on looking at the guidelines and what the guideline
were addressing and ensuring that I was considering, as the
sentencing statutes require the court to do, at all of the
circumstances of the crime.
I suspect that may drive one of the reasons why I may have
given higher white collar crime sentences than some of my
colleagues; not to suggest they didn't listen to the argument,
but they may have had a different perspective on it.
I should tell you that my circuit endorsed that factor as a
consideration under the guidelines, somewhat after I had
started imposing sentences on this view, but they also agreed
that this was a factor that courts could consider in fashioning
a sentence.
Crime is crime and to the extent that you're protecting the
interests of society, you take your cues from the statute
Congress gives and the sentencing range that Congress sets. And
so to the extent that in all my cases I balanced the individual
sentence with, as I was directed to, the interests that society
sought to protect, then I applied that evenhandedly to all
cases.
So it's important to remember the guidelines were
mandatory. And so I took my charge as a district court judge
seriously at the time to only deviate in the very unusual case,
which was permitted by the guidelines.
Senator Klobuchar. What do you think about the change now
that they are guidelines, suggested guidelines, and not
mandatory?
Judge Sotomayor. As you know, there's been a great number
of cases in the Supreme Court, the Booker/Fanfan line of case.
The Booker/Fanfan case determined they were guidelines.
My own personal experience as an appellate judge is that
because the Supreme Court has told the district courts to give
serious consideration to the guidelines, there's been a little
bit--not a little bit--there's been discretion given to
district courts, but they are basically still staying within
the guidelines and I think that's because the guidelines prove
useful as a starting point to consider what an appropriate
sentence may be.
Senator Klobuchar. Just one last question, Mr. Chairman.
All these guys have been asking about your baseball case and
they have been talking about umpires and judges as umpires.
Did you have a chance to watch the all-star game last
night? Because most of America did not watch the replay of your
hearing, they might have been watching it.
Judge Sotomayor. I haven't seen television for a very long
time. But I will admit that I turned it on for a little while
last night.
Senator Klobuchar. Because I will say--and maybe you did
not turn it on on this moment, but your Yankee, Derek Jeter,
tied it up, but you must know that he scored only because there
was a hit by Joe Mauer of the Minnesota Twins. I just want to
point that out.
All right. Thank you very much, Judge.
Judge Sotomayor. That's what teamwork helps you with.
Senator Klobuchar. Okay. Thank you.
Chairman Leahy. I am resisting any Red Sox comment.
Judge Sotomayor. I should beg you all not to hold that
against me.
Chairman Leahy. I am not going to use that against you. I
did see a photograph of the president throwing out the ball. I
know the photographer well, and he did a very good shot of two
pictures.
Senator Kaufman is probably as knowledgeable as anybody on
this Committee, having run it for years before becoming a
Senator. I have said before, Judge, that Senators are merely
constitutional requirements or impediments to the staff. We
know who really runs the place.
Senator Kaufman, it is over to you, sir.
Senator Kaufman. Thank you, Mr. Chairman.
Chairman Leahy. And I should make one announcement. You
have been hearing some banging going on here. Apparently the
air conditioning went out which will probably come as welcome
news to some of the press who are freezing in the sky boxes up
here.
But it is not welcome news here with the crowd going on and
they are working on it, but we are going to keep going as long
as we can. Senator Kaufman?
Senator Kaufman. Thank you, Mr. Chairman. One of the
toughest assignments--I have been here long enough to know the
toughest assignment is to stand between the audience and lunch,
so I am going to try to gear up under that. Good afternoon,
Judge.
Judge Sotomayor. Good afternoon, Senator. It is good
talking to you again.
Senator Kaufman. It is good to see you. And I want to kind
of take a different track. I think Senator Whitehouse and
Senator Klobuchar talked a lot about your time as a prosecutor.
I would like to move on to kind of your time as a commercial
litigator. You were a prosecutor for 5 years, then you decided
to go into commercial practice.
What were the thoughts behind you deciding when you left
the DA's office to go into commercial practice?
Judge Sotomayor. Well, actually it is a continuation of
what I explained to Senator Klobuchar. I had in the DA's office
realized that in the criminal law system, we could not affect
changes of opportunity for people. We were dealing with a
discreet issue and applying the law to the situation at hand.
But if there was going to be an increase of opportunity for
all people, that that had to involve an increase in economic
opportunity and in economic development for different
communities.
So that in combination with my desire to broaden my own
personal understanding of as many aspects of law as I could, I
decided that I should change my focus and concentrate on
commercial matters rather than criminal matters.
It also guided much of the pro bono work I did thereafter
which also involved questions of finances and economic
opportunities. And so I served on the New York State Mortgage
Board and the New York State Mortgage Office was involved in
giving individuals affordable housing or loans for affordable
housing.
I was a board member of the New York City Campaign Finance
Board. Those were activities that motivated in large measure
because of my growing belief that economic opportunities for
people were the way to address many of the growth needs of
communities.
Senator Kaufman. Can you tell us a little bit about your
commercial practice? What actually were you dealing with as a
litigator?
Judge Sotomayor. It was a wonderful practice because unlike
some of my law school friends, I very much wanted to go into a
small law firm where I could have hands on practice. Having
been a prosecutor and having made all of the decisions,
individual decisions I made, I thought to myself as I was
leaving the DA's office, I do not think I can go to those firms
where I would be the fifth guy on the totem pole, that I wanted
to have more hands on experience. So I went to a smaller firm
where I actually until I became a partner tended to work
directly with the partner and would often counsel businesses. I
did a wide variety of commercial issues.
I was involved in grain commodity trading, people buying
home grown grains of all kinds, you can name them all,
including orange peels as feed for animals, and the contracts
that they were involved in in doing those trades.
Our firm represented a very impressive list of client,
including Ferrari the car manufacturer. I did a great deal of
their work as it related to their dealer relationships and to
their customer relationships. So I involved myself in those
commercial transactions which were different focus, different
emphasis.
I also represented--not me, but the firm, but I counseled
the client on many of its dealer relations issue of Pirelli
Tire Corporation. These are names I suspect many people know.
Senator Kaufman. Yes.
Judge Sotomayor. And from the fashion designer, and I think
there are many people who know how famous that fashion house
design is, had trademark questions. I participated with the
partner who founded that practice within the law firm and she
had a very untimely death.
Actually she came from her home ill to vote on my
partnership at the firm and I became a partner and a couple of
months later, she passed away. But she had worked with me and
introduced me to the intellectual property area of law.
I worked on real estate matters, I worked on contract
matters of all kinds, licensing agreements, financing
agreements, banking questions. There was such a wide berth of
issues that I dealt with.
Senator Kaufman. And how did that practice help you on the
District Court and then on the Circuit Court of Appeals?
Judge Sotomayor. Actually, one of the lessons I learned
from my commercial practice, I learned in the context first of
my grain commodity trading, but in the work as it related to
all commercial disputes, one main lesson.
In business, the predictability of law may be the most
necessary in the sense that people organize their business
relationships by how they understand the court's interpret
their contracts.
I remember being involved in any number of litigations
where at the end of the litigation as part of a settlement, I
would draft up a settlement agreement between the parties.
Quite often it involved creating an ongoing new business
relationship or a temporary continuation of a business
relationship until they could wind down.
I would draft up the agreement like a litigator, like the
judge I try to be. Say it in simple works. I would give it to
my corporate partners, and I should not say it this way. I
would get back stuff that sometimes I would look at and say,
what does this gobbly goop mean? They would laugh at me and
say, it has meaning. This is how the courts have interpreted
it. It is very important to the relationship of the parties
that they know what the expectations are in law about their
relationship.
Then I understood why it was important to phrase things in
certain ways. It made me very respectful about the importance
of predictability in terms of court interpretation of business
terms because that was very, very critical to organizing
business relationships in our country.
Senator Kaufman. The other basic job as a District Court
judge is to kind of avoid trial, kind of get people settled
before they get to trial. How did your commercial experience
help you deal with that?
Judge Sotomayor. It is interesting because I remember one
case, and I cannot give you details because I would be
breaching confidentiality.
But I remember a client coming in to me with a fairly
substantial litigation and I looked at the client and I said,
``I evaluated the case.'' I said, ``There are some novel
theories here. I really think you can win, but there is a
serious question about the cost to get there because these are
all the things that we would have to do to get there and it is
going to cost you,'' it was millions of dollars that I
estimated.
The client went to another lawyer who gave them a different
evaluation. They went with that other lawyer. My firm lost all
that income. But the client came back afterwards. The figure I
put on the litigation was exactly what they spent and more.
Settlements are generally in the business world economic
decisions, balancing both the cost of litigation and the right
of the issue. But business has a different function than
courts. Business function is to do business, to do their work,
to sell products,--relationships and litigation are different.
As a judge when I was a District Court judge, most of my
focus was on doing what I used to do as a lawyer, to talk to
parties not about the merits of their case, but about the
consideration of thinking about creative and new ways to
approach a legal dispute so they could avoid the cost of
litigation.
As a Circuit Court judge, I am very cognizant of the cost
of litigation and look at what parties are doing in the courts
below, bearing that in mind.
Senator Kaufman. You talked about your experience as
Circuit Court judge. How did your being a District Court judge
help you when you became a Circuit Court judge?
Judge Sotomayor. Well, no question that it made me more
sensitive to the importance of facts and looking at the facts
the court has found and the facts that the parties are arguing
and looking at the record to understand what went on.
I often point to this example. When I sit on panels, and
our court is blessed by having judges with a wide variety of
circumstances. I know for me because I was a trial judge, I
would read all the briefs in a case, I would read the District
Court decision.
If parties were arguing something and the District Court
didn't address it, my first question to my law clerks were, go
back to the record and tell me why not. Most judges address
arguments that people are raising and I would get to oral
argument and if I was the only judge with a trial experience, I
would look at the parties and say, did you argue this before
the District Court?
I could see some of the antennas going up for those
colleagues who hadn't had that experience. They said, I never
even thought of that. Look in fact if that was the case.
There are all sorts of doctrines that do not permit parties
to argue new things on appeal. And so that is how the
experience comes in, both the sensitivity to facts and the
sensitivity to ensure that you're applying law to those facts.
Senator Kaufman. I know you have this commercial experience
because as I said in my opening statement, I am concerned about
business cases. I think they are really important and I am also
concerned that the current courts, being in court too often,
seems to disregard law and congressional policy choices when it
comes to business cases.
I think in light of economic crisis, Congress probably, not
probably, will definitely pass a financial regulatory reform
package.
I would just like to make sure that the system is not
undermined by the court because they have a different view of
what government regulation's all about.
Do you believe that Congress has the constitutional
authority to regulate financial markets?
Judge Sotomayor. You have just raised the very first
question that will come up when Congress passes an Act.
I can assure you, knowing every time that Congress passes
an Act, there is a challenge by somebody. As soon as it is
applied to someone in a way that they do not like, they are
going to come into court. So I cannot answer that question.
Senator Kaufman. I am sympathetic to that and I really
should have phrased it--just in general. Not with regard to any
case, anything at all about Congress' constitutional authority
to regulate financial markets.
Judge Sotomayor. Well, I cannot answer that question
because it invites an answer to the potential challenge.
What I can say to you is that Congress has certain
constitutional powers. One of them is to pass laws affecting
interstate commerce. So the question will be the nature of
whatever statute Congress passes, what facts it relies upon and
the remedy that it institutes.
So the question would depend on the nature of the statute
and what it is doing.
Senator Kaufman. But Congress does basically have the
ability to regulate markets.
Judge Sotomayor. Well, it has the ability to--the
constitutional terms are to make laws that involve commerce
between the states. Those are the words and generally that has
been interpreted to mean pass laws that affect commercial
interstate transaction.
Senator Kaufman. To get to a more broader question about
laws enacted by Congress, what should a judge's role be in
viewing the wisdom of the statute, in interpreting it?
When Congress passes a law, what is needed to whether the
judge thinks it is a good law or bad law, the wisdom in passing
it. What role does that play in the law?
Judge Sotomayor. I am trying to think if there is any
situation in which a judge would have occasion to judge in that
way. Policymaking, making of laws is up to Congress. A judge's
personal views as to whether that policy choice is good or bad
has no role in evaluating Congress' choice.
The question for us is always a different one, which is
what has Congress done? Is it constitutional in the manner in
which it has done it. But policy choices are Congress' choices.
In all areas, deference has to be given to that choice.
Senator Kaufman. How about regulation adopted by regulatory
agencies?
Judge Sotomayor. Deference has been given in that area by
the courts as well. Generally one looks at what Congress has
said about that question because executive agencies have to
apply and talk about regulations in light of what Congress has
commanded. But those are also entitled to deference in
different factual situations.
Senator Kaufman. We've been talking for a few minutes about
securities law.
What characterizes the securities law docket in the
southern district of New York in the Second Circuit?
Judge Sotomayor. Everything. We are the home of New York
City. Our jurisdiction is, and I am sure that another state is
going to complain, but we are the business capital of the
world. That is how it has been described by others.
So we deal with every variant of securities law as one
could imagine, from investment questions to misleading
statements to investors to whatever Congress has regulated, our
circuit will have a case on it. Or I should say it usually
starts with the District Courts and it will perk up to the
Circuit Court. But if you have a securities law, we will likely
eventually hear the argument.
Senator Kaufman. And this will be valuable if you are
confirmed.
Judge Sotomayor. I presume so because it has been a part of
my work both as a District Court and a Circuit Court judge.
Senator Kaufman. You had a case with a suit against the New
York Stock Exchange where the plaintiff sued the New York Stock
Exchange for failure to effectively regulate the market.
You ruled to give the New York Stock Exchange immunity from
the suit even though you noted that the alleged misconduct
appeared egregious.
To reach that sort of decision, how do you reconcile the
rationale for immunity with the fact that it deprives the
plaintiffs of a remedy in situations where they have been
wronged? As you said, egregiously wronged.
Judge Sotomayor. It is somewhat important to recognize the
limited role that courts serve and the issue of remedy also is
one where one has to talk about remedy against whom and for
what.
In the ways that these individuals were injured, they were
injured by third parties who had done allegedly illegal acts
against them. The court's ruling did not affect their ability
to take action against those individuals and clearly that is
always difficult in some situations when the individual has
been arrested, et cetera. But they are still remedies that law
provides in terms of whatever assets those individuals have,
whatever criminal actions the government may take, often funds
are created to reimburse victims.
The question here was whether an agency that in case law
was seen to have a quasi governmental function, whether you
could sue that agency for conduct that--for not regulating the
other individuals adequately in helping to prevent the
activity.
But regulation comes in different forms by the quasi
governmental agencies and what they can do depends on the
exercise of discretion under the laws as they exist at the
time.
So the immunity doctrine wasn't looking at the issue of how
to recompense the individuals, it was looking at the quasi
functions of government. So there is a different perspective
that was given to the judges in that case.
Senator Kaufman. In another securities case that interests
me, Press v. Quake & Riley, in that case you and your fellow
panel members deferred to the SEC's interpretation of its own
regulation even though you seemed somewhat skeptical of the
interpretation.
Tell us about how you came to the conclusion you did in
that case.
Judge Sotomayor. Well, there is a doctrine of Chevron
deference and it goes to the issue of who makes the decisions
and that goes to policy questions.
To the extent that an agency interpretation is not
inconsistent with congressional commands, express commercial
commands, a judge cannot substitute their own judgment of what
policies should be or regulations should be, but is commended
to give deference.
There are obviously in every situation a set of exceptions
to when you do not, but you have to then apply a consideration
of each of those exceptions in the particular circumstance
before you.
There have been other situations in which I have ruled and
said no, the agency is not interpreting the statute in
accordance with what the panel viewed was Congress' intent.
Yesterday I believe one of the other Senators asked me about
the Riverkeeper case.
Senator Kaufman. Yes.
Judge Sotomayor. The Supreme Court came to a different view
of what the words Congress used meant. But the point is that
the role of course is not to substitute their own judgments. It
is to apply the principles of law in accordance with the acts
that agencies are doing.
Senator Kaufman. And one more securities question. In
recent years it seems like regulators were often too lax when
it came to ferreting out securities fraud.
What role do the private rights of action, that is cases
brought by investors rather than government have in enforcing
our securities laws?
Judge Sotomayor. It is a right Congress has given
presumably because Congress has made a policy choice that it is
a way to ensure that individual's injuries are remedied.
That is a part of many of our securities laws and our anti-
trust laws. Government doesn't have unlimited resources to
pursue all individual injuries. And so in some situations,
Congress makes a choice to grant a private cause of action and
in some it doesn't. That is a legislative choice.
Senator Kaufman. Turning to the anti-trust law, what was
your experience in the anti-trust law?
Judge Sotomayor. As a----
Senator Kaufman. Both in practice and a judge, both of
them.
Judge Sotomayor. I am trying to think--I do not remember
having direct experience in anti-trust law when I was in
private practice. I do not think I did. So I had very little.
I am trying to think of any of my cases on the District
Court and major league baseball strike was one of them. It is
the one that I can think of.
I had anti-trust cases there as well. Often the cases
settled actually, and so managing those cases was the prime
function I had as a District Court judge.
If you will give me a chance to look at my District Court
decisions again to see if--and what other cases in the anti-
trust area I may have ruled upon in District Court, I can get
back to you, Senator, either at the next round or in a written
question. I just do not----
On the Circuit Court it is different. I have participated
directly in writing opinions and joining panels on opinions. So
I've had at least two if not three or four or five of those
cases.
Senator Kaufman. Yesterday Senator Kohl asked about the
Leegin case which is striking and it overturned 96 years of
precedent that effectively legalized private agreements to
prevent discount retailing.
You said that both the majority and the--case had reason to
question the economic theory underlining the original
precedent. I do not want you to comment on Leegin in
particular, but what is the role of the court in using economic
theory to interpret acts of Congress?
Judge Sotomayor. Well, you do not use economic theory to
determine the constitutionality of congressional action. That
is a different question I think than the one that Leegin
addressed. What Leegin addressed was how the court would apply
congressional act, the anti-trust laws to a factual question
before it. That's a different issue because that doesn't do
with questioning the economic choices of Congress. That goes to
whether or not in reviewing the action of a particular
defendant what view the court is going to apply to that
activity.
In the Leegin case, the court's decision was look, we have
prior case law that says that this type of activity is always
anti-competitive. The court in reconsidering that issue in the
Leegin case said well, there has been enough presented in the
courts below to show that maybe it is not in some activity as
anti-competitive. So we are not going to subject it to an
absolute bar, we are going to subject it to a review under rule
of reason.
That is why I said it is not a question of questioning
Congress' economic choices or the economic theories that
underlay its decisions in a legislation. They weren't striking
down the anti-trust laws.
What the court was trying to do was figure out how it would
apply that law to a particular set of facts before it.
Senator Kaufman. In Illinois Brick, a Supreme Court case
dealing with anti-trust law, one of the classic cases, Justice
White wrote, ``You can say whether to overturn precedent, we
must bear in mind the considerations of Stare Decisis weigh
heavily in the area of statutory construction, where Congress
is free to change this court's interpretation of its
legislation.''
Do you agree with Justice White?
Judge Sotomayor. I think that that--as you may know, the
doctrine of Stare Decisis is not dependent on one factor.
Senator Kaufman. Right.
Judge Sotomayor. The court considers a variety of different
factors, including the administrative workability of a law, the
reliance factor that society has put into that rule, that
precedent, the cost to change it, whether the underlying
doctrines in related areas, the underlying framework of related
areas would lead a court to question whether the prior
precedent really has a framework that's consistent with an
understanding in this area that has been developed in other
cases. And finally, has there been a change in society that
shows that the factual findings upon which the older case was
premised may be wrong.
There is always the question as part of that analysis and
other factors the courts may think about as to whether the
older rule has been affirmed by the court and how often, over
what period of time.
To the extent that Justice White is talking about a factor
that the court should put into that mix, the court has
recognized in its Stare Decisis jurisprudence that all of the
factors weigh into the decision. You think about why and under
what circumstances you should alter the course of the court's
interpretation as set forth in prior precedent.
Senator Kaufman. I am concerned because recently there has
been erosion in anti-trust, both in the courts and the
enforcement. It has made it much easier for financial
institutions to become so massive, they are in effect too big
to fail.
Should a court sitting on anti-trust consider the systemic
risk to the marketplace as injected by a financial institution
being too big to fail?
Judge Sotomayor. Well, the purposes of the anti-trust
theory is premised on ensuring competition in the marketplace.
The question, like the one you pose, is one that would come to
the court in a particular context and a challenge to some
approach the court has used in this area.
I obviously cannot say absolutely yes in a hypothetical,
but obviously the court is always looking at what activity is
claimed to be illegal under the anti-trust laws and what effect
is has on anti-competitive behavior.
The question frequently in anti-trust is is a particular
area subject to per se barring or is it subject to the rule of
reason, and the two have different approaches to the question.
Senator Kaufman. Thank you, Judge. Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Kaufman. I
mentioned before, it is almost 1. We will take a break until 2.
At 2, we will recognize first Senator Specter and then Senator
Franken.
When their questions are finished, we will go into the
traditional closed door session which will be held not in this
room, but in the Senate Judiciary Committee room. Following
that, we will come back in here and if there are Senators that
have further questions, they will be recognized not to exceed
20 minutes each.
I would hope that if the question has already been asked
and answered, they may want to resist the temptation to do it
again, but they have that right to take the full 20 minutes if
they do.
I realize a lot of the questions have been asked, but not
everybody has asked the same question and so they may want to.
But they have that right. That's what we will do. We will stand
recessed until then.
[Whereupon, at 1 p.m., the meeting recessed for lunch.]
After Recess [2:03 p.m.]
Chairman Leahy. Judge, what did you do with your mother?
[Laughter.]
Judge Sotomayor. She needed a short break, but it wasn't
because of Senators Specter or Franken.
Chairman Leahy. Like Amy Klobuchar, I had a nice chat with
her this morning, and she was talking about when she first
became a nurse and compared notes with my wife, and they both
agreed that that is when nurses truly had to be nurses. Now
they are nurses-plus, with the advances in medicine.
I just discussed this again with Senator Sessions. We will
go first to Senator Specter, then to Senator Franken, and then
we will recess and go into the other room for the closed
session.
Senator Specter, of course, is a former Chairman of this
Committee, one of the most senior Members of the Senate, and
one of the most experienced. Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Welcome back, Judge Sotomayor. You have held up very well.
Of all of the proceedings in the Senate, this is the most
exacting on the witness. Years ago, as you know, in the case of
Ashcraft v. Tennessee, they said it was unconstitutional to
subject a suspect to relay grilling, but that doesn't apply to
nominees. And your family has been here. My wife, Joan Specter,
who has been a soldier in her own right, says it is a lot
harder to listen to me than it is to make a speech herself. And
you are engaged.
I think beyond doing very well on stamina, you have shown
intellect and humor and charm and pride and also modesty. So it
has been a very good hearing. Notwithstanding all of those
qualities, the Constitution says we have to decide whether to
consent, and that requires the hearing process and the
questions.
Before going into a long list of issues which I have on the
agenda--separation of power and warrantless wiretaps and secret
CIA programs and voting rights and the Americans with
Disabilities Act and a woman's right to choose and the
Environmental Protection Agency and the Clean Water Act and
television and the Second Amendment--I would like to make an
observation or two.
There has been a lot of talk about a wise Latina woman, and
I think that this proceeding has tended to make a mountain out
of a molehill. We have had a consistent line of people who are
nominees who make references to their own backgrounds. We all
have our perspective. Justice O'Connor talked about her life
experience. Justice Alito talked about his family suffering
from ethnic slurs. Justice Thomas from Pin Point, Georgia,
emphasized, talked about putting himself in the shoes of other
people. And Justice Scalia talked about being in a racial
minority.
The expectation would be that a woman would want to say
something to assert her competency in a country which denied
women the right to vote for decades, when the glass ceiling has
limited people, where there is still disparagement of people on
ethnic background.
Just this month in a suburb of Philadelphia, Hispanic
children were denied access to a pool for whites only, as were
African American children, so I can see how someone would take
pride in being a Latina woman and assert herself.
A lot has been made of the issue of empathy, but that
characteristic is not exactly out of place in judicial
determinations. We have come a long way on the expansion of
constitutional rights. Oliver Wendell Holmes' famous statement
that the life of the law is experience, not logic; Justice
Cardozo in Palko v. Connecticut talked about changing values;
and the Warren Court changed the Constitution practically every
day, which I saw, being at the district attorney's office--the
changes in search and seizure, confessions, Miranda, right to
counsel. Who could have thought that it would take until 1963
to have the right to counsel in Gideon v. Wainwright?
We have heard a lot of talk about the nomination proceeding
of Judge Bork, and they have tried to make ``Bork'' into a
verb, somebody being Bork'd. Well, anybody who looks at that
record will see that it is very, very different. We had a
situation where Judge Bork was an advocate of original intent
from his days writing a law review article in the Indiana Law
Review. And how can you have original intent when the 18th
Amendment was written by a Senate on equal protection with the
Senate galleries which were segregated, or where you have Judge
Bork who believed that equal protection applied only to race
and ethnicity, didn't even apply to women?
But it was a very, very thorough hearing. I spent, beyond
the hearing, days in three long sessions, 5 hours with Judge
Bork, so it was his own approach to the law which resulted
there. But you had an evolution of constitutional law which I
think puts empathy in an Okay status, in an Okay category.
Now on to the issues.
I begin with an area of cases which the Court has decided
not to decide, and those cases can be even more important than
many of the cases which the Court decides. The docket of the
Court at the present time is very different from what it was a
century ago. In 1886, the docket had 1,396 cases, decided 451.
A hundred years later, there were only 161 signed opinions in
1985; in 2007, only 67 signed opinions.
During his confirmation hearings, Chief Justice Roberts
said the Court ``could contribute more to the clarity and
uniformity of the law by taking more cases.''
Judge Sotomayor, do you agree with that statement by Chief
Justice Roberts?
Judge Sotomayor. I know, Senator Specter, that there is
questions by many people, including Senators and yourself, of
Justice Roberts and other nominees about this issue. Can the
Court take on more? To the extent that there is concern about
it, not that public opinion should drive the Justices to take
more cases just to take them, but I think what Justice Roberts
was saying is the Court needs to think about its processes to
ensure that it's fulfilling its----
Senator Specter. Judge Sotomayor, how about more cases?
Judge Sotomayor. Well, perhaps I need to explain to you
that I don't like making statements about what I think the
Court can do until I've experienced the process.
Senator Specter. Then let me move on to another question.
One case that the Court did not take involved the Terrorist
Surveillance Program, which I think, arguably, posed the
greatest conflict between congressional powers under Article I
in enacting the Foreign Intelligence Surveillance Act, which
provided for the exclusive way to get wiretaps. The President
disregarded that in a secret program called the Terrorist
Surveillance Program, didn't even tell the Chairman of the
Judiciary Committee, which is the required practice or accepted
practice; didn't tell the Intelligence Committees where the law
mandates that they be told about such programs. It was only
disclosed by the New York Times. Those practices confront us to
this day with reports about many other secret cases not
disclosed.
The Federal District Court in Detroit found the Terrorist
Surveillance Program unconstitutional. The Sixth Circuit in a
2-1 opinion said there was no standing. The dissent I think
pretty conclusively had the much better of it on asserting
standing. The Supreme Court of the United States denied
certiorari, didn't even take up the case to the extent of
deciding whether it shouldn't take it because of lack of
standing.
I wrote you a letter about this, wrote a series of letters,
and gave you advance notice that I would ask you about this
case. I am not asking you how you would decide the case, but
wouldn't you agree that the Supreme Court should have taken
that kind of a major conflict on separation of powers?
Judge Sotomayor. I know it must be very frustrating to you
to----
Senator Specter. It sure is. I was the Chairman who wasn't
notified.
Judge Sotomayor. No. I am sure----
Senator Specter. And he was the Ranking Member who wasn't
notified.
Judge Sotomayor. I can understand not only Congress' or
your personal frustration, and sometimes of citizens, when
there are important issues that they would like the Court to
consider. The question becomes what do I do if you give me the
honor to serve on the Court. If I say something today, is that
going to make a statement about how I am going to prejudge
someone else's----
Senator Specter. I am not asking you to prejudge. I would
like to know your standards for taking the case. If you have
that kind of a monumental, historic conflict, and the Court is
supposed to decide conflicts between the executive and the
legislative branches, how can it possibly be justified not to
take that case?
Judge Sotomayor. There are often, from what I understand--
and that's from my review of Supreme Court actions and cases of
situations in which they have or have not taken cases, and I've
read some of their reasoning as to this. I know that with some
important issues they want to make sure that there isn't a
procedural bar to the case of some type that would take away
from whether they're, in fact, doing what they would want to
do, which is to----
Senator Specter. Well, was there a procedural bar? You had
weeks to mull that over because I gave you notice.
Judge Sotomayor. Senator, I'm sorry. I did mull this over.
My problem is that without looking at a particular issue and
considering the cert. brief style, the discussion of potential
colleagues as to the reasons why a particular issue should or
should not be considered, the question about----
Senator Specter. Well, I can tell you are not going to
answer. Let me move on.
On a woman's right to choose, Circuit Judge Luttig in the
case of Richmond Medical Center said that v. Planned Parenthood
v. Casey was ``super-stare decisis.'' Do you agree with Judge
Luttig?
Judge Sotomayor. I don't use the word ``super.'' I don't
know how to take that word. All precedent of the Court is
entitled to the respect of the doctrine of stare decisis.
Senator Specter. Do you think that Roe v. Wade has added
weight on stare decisis to protect a woman's right to choose by
virtue of Planned Parenthood v. Casey, as Judge Luttig said?
Judge Sotomayor. That is one of the factors that I believe
courts have used to consider the issue of whether or not a new
direction should be taken in the law. There is a variety of
different factors the Court uses, not just one.
Senator Specter. But that is one which would give it extra
weight. How about the fact that the Supreme Court of the United
States has had 38 cases after Roe v. Wade where it could have
reversed Roe v. Wade? Would that add weight to the impact of
Roe v. Wade on stare decisis to guarantee a woman's right to
choose?
Judge Sotomayor. The history of a particular holding of the
Court and how the Court has dealt with it in subsequent cases
would be among one of the factors as many that a Court would
likely consider. Each situation, however, is considered in a
variety of different viewpoints and arguments but, most
importantly, factors that the Court applies to this question of
should precedent be altered in a way.
Senator Specter. Well, wouldn't 38 cases lend a little
extra support to the impact of Roe and Casey where the Court
had the issue before it, could have overruled it?
Judge Sotomayor. In Casey itself----
Senator Specter. Just a little impact?
Judge Sotomayor. Casey itself applied--or an opinion
authored by Justice Souter talked about the factors that a
Court thinks about in whether to change precedent, and among
them were issues of whether or not or how much reliance society
has placed in the prior precedent; what are the costs that
would be occasioned by changing it; was the rule workable or
not; have either factual or doctrinal basis of the prior
precedent altered, either from developments in related areas of
law or not, to counsel a re-examination of a question, and----
Senator Specter. I am going to move on--go ahead.
Judge Sotomayor. And the Court has considered in other
cases the number of times the issue has arisen and what actions
the Court has or not taken with respect to that.
Roe is--Casey did reaffirm the core holding of Roe, and so
my understanding would be that the issue would be addressed in
light of Casey on the stare decisis----
Senator Specter. Do I hear you saying there would be at
least a little bit of--let me move on. Let me move on to
another separation of powers argument, and, that is, between
Congress and the Court.
In 1997, in the case called Boerne, suddenly the Supreme
Court of the United States found a new test called ``congruence
and proportionality.'' Up to that time, Judge Harlan's judgment
on a rational basis for what Congress would decide would be
sufficient. And here for the benefit of our television
audience, we are talking about a record that the Congress
maintains.
Take the Americans with Disabilities Act, for example,
where there was a task force of field hearings in every State
attended by more than 30,000 people, including thousands who
had experienced discrimination with roughly 300 examples of
discrimination by State governments. Notwithstanding that vast
record, the Supreme Court of the United States in Alabama v.
Garrett found Title I of the Americans with Disabilities Act
unconstitutional.
The other title, Title II, of the Americans with
Disabilities Act in Tennessee v. Lane, the Court found it
constitutional on the same record.
Justice Scalia in dissent said that it was a ``flabby
test,'' that it was an ``invitation to judicial arbitrariness
and policy-driven decision making.''
In a second round, if we have time, I will ask you--to give
you some advance notice, although I wrote you about these
cases--if you can find a distinction on the Supreme Court's
determination. But my question to you is: Looking at this
brand-new standard of proportionality and congruence, for
whatever those words mean--and if we have time in the second
round, I will ask you to define them, but there are other
questions I want to come to. Do you agree with Justice Scalia
that it is a flabby test and that, with having such a vague
standard, the Court can do anything it wants and really engages
in policy-driven decision making? Which means the Court, in
effect, legislates.
Judge Sotomayor. Senator, the question of whether I agree
with a view of a particular Justice or not is not something
that I can say in terms of the next case. In the next case that
the Court will look at and a challenge to a particular
congressional statute----
Senator Specter. Well, not the next case. This case. You
have these two cases. They have the same factual record. And
the Supreme Court, in effect, legislates, tells us what is
right and what is wrong on this standard that nobody can
understand.
Judge Sotomayor. As I understand the congruence and
proportionality test, it is the Supreme Court's holding on that
test, as I understand it, that there is an obligation on the
Court to ensure that Congress is working--working--is
legislating within its legislative powers.
The issue is not--and these are Section 5 cases,
essentially, which are the clause of the Constitution under the
14th Amendment that permits Congress to legislate issues
involving violations of the 14th amendment. The Court in those
cases has not said that Congress can't legislate. What it has
looked at is the form of remedy Congress can order and what
it----
Senator Specter. But it doesn't tell us how to--let me move
on to a Voting Rights Act case, and just pose the case, and I
will ask you about it in the next round.
When Chief Justice Roberts testified at his confirmation
hearings, he was very deferential to the Congress--not so, I
might add, when he heard arguments in the voting rights case,
but when he appeared here 3 years ago. He said this, and it is
worth reading: ``I appreciate very much the differences in
institutional competence between the judiciary and the Congress
when it comes to basic questions of fact finding, development
of a record, and also the authority to make the policy
decisions about how to act on the basis of a particular record.
It's not just disagreement over a record. It's a question of
whose job it is to make a determination based on the record. .
. . As a judge . . . you may have the beginning to transgress
into the area of making a law is when you are in a position of
re-evaluating legislative findings because that doesn't look
like a judicial function.''
Now, that is about as deferential as you can be when you
are nominee. But when Chief Justice Roberts presided over the
voting rights case, he sound very, very different.
My question to you is: Do you agree with what Chief Justice
Roberts said when he was just Judge Roberts that it is an area
of making laws to transgress into what Congress has done by way
of finding the facts?
Judge Sotomayor. I would find it difficult to agree with
someone else's words. I can tell you how much I understand the
deference that Congress is owed, and I can point you at least
to two cases--and there are many, many more--that shows how
much I value the fact that we are courts that must give
deference to Congress in the fields that are within its
constitutional power.
Senator Specter. Well, do you agree with Chief Justice
Roberts--I sent you that quotation a long time ago and told you
I would ask you about it. Do you agree with him or not?
Judge Sotomayor. I agree to the extent that one's talking
about the deference that Congress is owed. I can't speak for
what he intended to say by that. I can speak to what I----
Senator Specter. Well, not what he intended to say. What he
did say.
Judge Sotomayor. I heard what he said, sir, but I don't
know what he intended in that description. I do know what I can
say, which is that I do understand the importance to Congress'
factual findings, that my cases and my approach in my cases
reflect that. I've had any number of cases where the question
was deference to congressional findings, and I have upheld
statutes because of that deference.
Senator Specter. Is there anything the Senate or Congress
can do if a nominee says one thing seated at that table and
does something exactly the opposite once they walk across the
street?
Judge Sotomayor. That, in fact, is one of the beauties of
our constitutional system, which is we do have a separation
of----
Senator Specter. Beauty is in the eyes of the beholder. It
is only Constitution Avenue there.
[Laughter.]
Judge Sotomayor. Well, the only advantage you have in my
case is that I have a 17-year record that I think demonstrates
how I approach the law and the deference with which--or the
deference I give to the other branches of Government.
Senator Specter. I think your record is exemplary, Judge
Sotomayor. Exemplary. I am not commenting about your answers,
but your record is exemplary.
[Laughter.]
Senator Specter. And you will be judged more on your record
than on your answers, Judge Sotomayor.
For those who are uninitiated, your preparation
appropriately is very careful. They call them ``murder boards''
at the White House. I don't know what you did and I am not
asking. We have had a lot of commentary. And you studied the
questions, and you have studied the record, and your
qualification as a witness is terrific in accordance with the
precedents there. You are following the precedents there very
closely.
Let me move to television and the courts, and it is a
question that many of us are interested in. I always ask it. I
have introduced legislation twice, come out of Committee twice,
to require the Court to televise. The Court does not have to
listen to Congress. The Court can say separation of powers
precludes our saying anything. But the Congress does have
administrative procedural jurisdiction. We decide the Court
convenes the first Monday in October. We decide there are nine
Justices. We tried to make it 15 once in the Court-packing era,
six Justices for a quorum, et cetera; the Speedy Trial Act
telling the courts how they have to move at a certain speed,
habeas corpus on time limits.
Justice Stevens has said that it is worth a try. Justice
Ginsburg at one time said that if it was gavel to gavel, it
would be fine. Justice Kennedy said it was inevitable.
The record of the Justices appearing on television is
extensive. Chief Justice Roberts and Justice Stevens were on
Prime time ABC, Justice Ginsburg on CBS, Justice Breyer on Fox
News and so forth down the line.
We all know that the Senate and the House are televised,
and we all know the tremendous, tremendous interest in your
nominating process, and it happens all the time. There is a lot
of public interest. But the Court is the least accountable. In
fact, you might say the Court is unaccountable.
When Bush v. Gore was decided, then-Senator Biden and I
wrote to Chief Justice Rehnquist asking that television be
permitted and got back a prompt answer: ``No.'' And that was
quite a scene across the street. The television trucks were
just enormous, all over the place. You had to be the Chairman
of the Committee to get a seat inside the chamber.
The Supreme Court decides all the cutting-edge questions of
the day: the right of a woman to choose abortion, the death
penalty, organized crime--every cutting-edge question. And Bush
v. Gore was one of the biggest cases--arguably, the biggest
case. More than 100 million people voted in that election, and
the Presidency was decided by one vote.
And Justice Scalia had this to say about irreparable harm:
``The counting of votes that are of questionable legality does
in my view threaten irreparable harm to''--referring to
President Bush, or Candidate Bush--``and to the country, by
casting a cloud upon what he claims to be the legitimacy of the
election. . . .[P]ermitting the Court to proceed on that
erroneous basis will prevent an accurate recount from being
conducted on a proper basis later.''
It is hard to understand what recount there was going to be
later. I wrote about it at the time saying that I thought it
was an atrocious accounting of irreparable harm, hard to
calculate that. And my question, Judge Sotomayor: Shouldn't the
American people have access to what is happening in the Supreme
Court to try to understand it, to have access to what the
judges do by way of their workload, by way of their activities
when they adjourn in June and reconvene in October, this year
in September? Wouldn't it be more appropriate in a democracy to
let the people take a look inside the Court through television?
The Supreme Court said in the Richmond Newspapers case
decades ago that it wasn't just the accused that had a right to
a public trial; it was the press and the public as well. And
now it is more than newspapers. Television is really paramount.
Why not televise the Court?
Judge Sotomayor. As you know, when there have been options
for me to participate in cameras in the courtroom, I have. And
as I said to you when we met, Senator, I will certainly relay
those positive experiences, if I become fortunate enough to be
there to discuss it with my colleagues. And that question is an
important one, obviously. There is legislation being considered
both by--or has been considered by Congress at various times,
and there is much discussion between the branches on that
issue.
It is an ongoing dialog. It is important to remember that
the Court because of this issue has over time made public the
transcripts of its hearing quicker and quicker, if I am
accurate, now. It used to take a long time for them to make
those transcripts available, and now they do it before the end
of the day.
It is an ongoing process of discussion.
Senator Specter. Thank you, Judge Sotomayor.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Specter.
And last in this round of questioning will be Senator
Franken, the newest member of the Committee. Senator, I didn't
officially welcome you the other day as I should have when we
have new members, but welcome to the Committee. I offer you
congratulations and condolences at the same time to come in on
one of the----
Senator Franken. I will take the congratulations.
Chairman Leahy. Okay. Well, then was most heartfelt. I am
glad you are here. Please go ahead.
Senator Franken. Thank you, Mr. Chairman, and thank you,
Judge Sotomayor, for sitting here so patiently and for all your
thoughtful answers throughout the hearing.
Before lunch, our senior Senator from Minnesota, Amy
Klobuchar, asked you why you became a prosecutor, and you
mentioned ``Perry Mason.'' I was a big fan of ``Perry Mason.''
I watched ``Perry Mason'' every week with my dad and my mom and
my brother. And we would watch the clock, and we knew when it
was 2 minutes to the half-hour that the real murderer would
stand up and confess.
[Laughter.]
Senator Franken. It was a great show. And it amazes me that
you want to become a prosecutor based on that show, because in
``Perry Mason,'' the prosecutor--Burger--lost every week.
[Laughter.]
Senator Franken. With one exception, which we will get to
later. But I think that says something about your determination
to defy the odds. And while you were watching ``Perry Mason''
in the South Bronx with your mom and your brother, I was
watching ``Perry Mason'' in suburban Minneapolis with my folks
and my brother, and here we are today. And I am asking you
questions because you have been nominated to a Justice of the
United States Supreme Court. I think that is pretty cool.
As I said in my opening statement, I see these proceedings
both as a way to take a judgment of you and of any nominee's
suitability for the high Court, but also as a way for Americans
to learn about the Court and its impact on their lives. Right
now, people are getting more and more of their information on
the Internet, getting newspapers and television and blogs and
radio. Americans are getting all of it online, and it plays a
central role in our democracy by allowing anyone with a
computer connected to the Internet to publish their ideas,
their thoughts, their opinions, and reach a worldwide audience
of hundreds of millions of people in seconds. This is free
speech, and this is essential to our democracy, and to
democracy, we saw this in Iran not long ago.
Now, Judge, you are familiar with the Supreme Court's 2005
Brand X decision, are you?
Judge Sotomayor. I am.
Senator Franken. Okay. Well, then you know that Brand X
deregulated Internet access services, allowing service
providers to act as gatekeepers to the Internet, even though
the Internet was originally Government funded and built on the
notion of common carriage and openness. In fact, we have
already seen examples of these companies blocking access to the
Web and discriminating on certain uses of the Internet. This
trend threatens to undermine the greatest engine of free speech
and commerce since the printing press.
Let's say you are living in Duluth, Minnesota, and you only
have one Internet service provider. It is a big mega
corporation, and not only are they the only Internet service
provider, but they are also a content provider. They own
newspapers. They own TV networks or a network. They have a
movie studio.
They decide to speed up their own content and slow down
other content. The Brand X decision by the Supreme Court allows
them to do this. And this is not just Duluth. It is Moorhead,
Minnesota; it is Rochester, Minnesota; it is Youngstown, Ohio.
It is Denver, it is San Francisco, and, yes, it is New York.
This is frightening--frightening to me and to millions of my
constituents or lots of my constituents.
Internet connections use public resources, the public
airways, the public rights of way. Doesn't the American public
have a compelling First Amendment interest in ensuring that
this can't happen and that the Internet stays open and
accessible--in other words, that the Internet stays the
Internet?
Judge Sotomayor. Many describe the telephone as a
revolutionary invention, that changed our country dramatically.
So did television. And its regulation of television and the
rules that would apply to it were considered by Congress, and
those regulations have--because Congress is the policy chooser
on how items related to interstate commerce and communications
operate. And that issue was reviewed by the courts in the
context of the policy choices Congress made.
There is no question in my mind as a citizen that the
Internet has revolutionized communications in the United
States, and there is no question that access to that is a
question that society--that our citizens as well as yourself
are concerned about.
But the role of the court is never to make the policy. It
is to wait until Congress acts and then determine what Congress
has done and its constitutionality in light of that ruling.
Brand X, as I understood it, was a question of which
Government agency would regulate those providers, and the
Court, looking at Congress' legislation in these two areas,
determined that it thought it fit in one box, not the other,
one agency instead of another.
Senator Franken. Is this Title I and Title II? Or as I
understand it, Title II is subject to regulation and Title I
isn't.
Judge Sotomayor. Exactly, but the question was not so much
stronger regulation or not stronger regulation. It was which
set of regulations, given Congress' choice, controlled.
Obviously, Congress may think that the regulations the
Court has in its holding interpreted Congress' intent and that
Congress thinks the Court got it wrong. We are talking about
statutory interpretation and Congress' ability to alter the
Court's understanding by amending the statute if it chooses.
This is not to say that I minimize the concerns you
express. Access to Internet, given its importance in everything
today--most businesses depend on it. Most individuals find
their information. The children in my life virtually live on it
now. And so its importance implicates a lot of different
questions--freedom of speech, freedom with respect to property
rights, Government regulation. There's just so many issues that
get implicated by the Internet that what the Court can do is
not choose the policy. It just has to go by interpreting each
statute and trying to figure out what Congress intends.
Senator Franken. I understand that, but isn't there a
compelling First Amendment right here for people? No matter
what Congress does--and I would urge my colleagues to take this
up and write legislation that I would like. But isn't there a
compelling, overriding First Amendment right here for Americans
to have access to the Internet?
Judge Sotomayor. Rights by a court are not looked at as
overriding in the sense that I think a citizen--or a citizen
would think about it, should this go first or should a
competing right go second. Rights are rights, and what the
Court looks at is how Congress balanced those rights in a
particular situation and then judges whether that balance is
within constitutional boundaries.
Calling one more compelling than the other suggests that
they're sort of--you know, property interests are less
important than First Amendment interests. That's not the
comparison a court makes. The comparison the court makes starts
with what balance does Congress choose first, and that we'll
look at that if it--and see if it's constitutional.
Senator Franken. Okay. So we have got some work to do on
this.
Let me get into judicial activism. I brought this up in my
opening statement. As I see it, there is kind of an
impoverishment of our political discourse when it comes to the
judiciary. I am talking in politics. When candidates or office
holders talk about what kind of judge they want, it is very
often just reduced to, ``I don't want an activist judge. I
don't want a judge that is going to legislate.'' And that is
sort of it. That is it. It is a 30-second sound bite.
As I and a couple other Senators mentioned during our
opening statements, judicial activism has become a codeword for
judges that you just do not agree with.
Judge, what is your definition of ``judicial activism'' ?
Judge Sotomayor. It's not a term I use. I don't use the
term because I don't describe the work that judges do in that
way. I assume the good faith of judges in their approach to the
law, which is that each one of us is attempting to interpret
the law according to principles of statutory construction and
other guiding legal principles, and to come in good faith to an
outcome that we believe is directed by law. When I say ``we
believe,'' hopefully we all go through the process of reasoning
it out and coming to a conclusion in accordance with the
principles of law.
I think you are right that one of the problems with this
process is that people think of activism as the wrong
conclusion in light of policy. But hopefully judges--and I know
that I don't approach judging in this way at all--are not
imposing policy choices or their views of the world or their
views of how things should be done. That would be judicial
activism in my sense if a judge was doing something improper
like that.
But I don't use that word because that's something
different than what I consider to be the process of judging,
which is each judge coming to each situation trying to figure
out what the law means, applying it to the particular fact
before that judge.
Senator Franken. Okay. You don't use that word or that
phrase. But in political discourse about the role of the
judiciary, that is almost the only phrase that is ever used.
And I think that there has been an ominous increase in what I
consider judicial activism of late, and I want to ask you about
a few cases and see if you can shed some light on this for us
and for the people watching at home or in the office.
I want to talk about Northwest Austin Utility District
Number One v. Holder, the recent Voting Rights Act, and Senator
Cardin mentioned it, but he did not get out his pocket
Constitution, as I am.
The 15th Amendment was passed after the Civil War and
specifically gave Congress the authority to pass laws to
protect all citizens' right to vote, and it said, Section 1--
Amendment XV, Section 1, ``The right of citizens of the United
States to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or previous
condition of servitude.''
Section 2, and this one is important: ``The Congress shall
have power to enforce this article by appropriate
legislation.'' The Congress.
Well, Congress used that power, the power vested in it
under Section 2, when it passed the Voting Rights Act of 1965.
Now, the Voting Rights Act has a specially strong provision,
Section 5, that requires States with a history of
discrimination to get preapproval from the Justice Department
on any changes that they make in their voting regulations.
Congress has reauthorized this four times, as recently as--the
last time was 2006, and the Senate supported it by a vote of
98-0. Every single Senator from a State covered by Section 5
voted to reauthorize it.
So now it is 2009, and we have this case, the Northwest
Austin Utility District Number One, and Justice Thomas votes to
hold Section 5 unconstitutional. He said it went beyond the
mandate of the 15th Amendment because it wasn't necessary
anymore. That is what he said.
Now, when I read the 15th Amendment, it does not contain
any limits on Congress' power. It just says that we have it. It
does not say, ``If necessary, the Congress shall have power to
enforce this article.'' It just says that we have the power.
So it is my understanding that the 15th Amendment contains
a very strong, very explicit and unambiguous grant of power to
the Congress, and because of that the courts should pay greater
deference to it. And my question is: Is that your view?
Judge Sotomayor. As you know, some of the Justices in that
recent decision expressed the view that the Court should take
up the constitutionality of the Voting Rights Act and review
its continuing necessity. Justice Thomas expressed his view.
That very question, given the decision and the fact that it
left that issue open, is a very clear indication that that's a
question that the courts are going to be addressing, if not
immediately the Supreme Court, certainly the lower courts. And
so expressing a view, agreeing with one person in that decision
or another, would suggest that I have made a prejudgment on
this question. I consider----
Senator Franken. So that means you are not going to tell
us.
[Laughter.]
Senator Franken. I didn't mean to finish your sentence. I
think that is where you are going.
Judge Sotomayor. All I can say to you is--I have one
decision among many, but one decision on the Voting Rights Act,
and not the recent reauthorization by Congress, but a prior
amendment where I suggested that these issues needed--issues of
changes in the Voting Rights Act should be left to Congress in
the first instance.
My jurisprudence shows the degree to which I give deference
to Congress' findings. Whether in a particular situation that
compels or doesn't or leads to a particular result is not
something that I can opine on, because particularly the issue
you are addressing right now is likely to be considered by the
courts. The ABA rule says no judge should make comments on the
merits of any pending or impending case, and this clearly would
be an impending case.
Senator Franken. Okay. It is fair to say, though, in your
own decisions you gave deference to Congress, just like you
answered my neutrality saying it is up to Congress, it feels
like this is very explicitly up to Congress.
Judge Sotomayor. I gave deference to the exact language
that Congress had used in the Voting Rights Act and how it
applied to a challenge in that case.
Senator Franken. Okay. Now, voting to overturn Federal
legislation, to me at least, seems to be one definition of what
people understand as judicial activism. But I want to talk
about some cases that I have seen that I think show judicial
activism functioning on a more pernicious level.
First, let's take a look at a case called Gross v. FBL
Financial Services that the Supreme Court issued last month.
Are you familiar with that?
Judge Sotomayor. I am.
Senator Franken. Now, Gross involved the Age Discrimination
in Employment Act, or ADEA. Before Gross, you could bring an
age discrimination suit whenever you could show that age was
one of the factors an employer considered in choosing to fire
you. When the Supreme Court agreed to hear the case, it said it
would consider just one question: whether you needed direct
evidence of age discrimination to bring this kind of lawsuit or
whether indirect evidence would suffice. That is the issue that
they said that they would consider when they took the case.
But when the Supreme Court handed down its decision, it
ruled on a much larger matter: whether a worker could bring a
suit under ADEA if age was only one of several reasons for
being demoted or fired. The Supreme Court barred these suits
saying that only suits alleging that age was the determinative
factor for the firing, only those could be brought under the
ADEA.
This change has significantly eroded workers' rights by
making it much harder for workers to defend themselves from age
discrimination, including getting fired just before they were
to have seen a large increase in their pension. You were not
fired because you are too old; you are fired because your
pension is going to increase soon. So this is a big deal.
When you go to court to defend your rights, you have to
know what rights you are defending. The parties in the Gross
case thought they were talking about what kind of evidence was
necessary in a decision suit. Then the Court said, ``No, we are
banning that kind of suit altogether.''
I think that is unfair to everyone involved. It is
especially unfair to the man who is trying to bring the
discrimination suit. So let me ask you a couple of questions on
this.
First, as an appellate court judge, how often have you
decided a case on an argument or a question that the parties
have not briefed?
Judge Sotomayor. I don't think I have, because to the
extent that the parties have not raised an issue and the
circuit court for some reason the panel has thought that it was
pertinent--most often that happens on questions of
jurisdiction. Can the Court hear this case at all? Then you
issue--or we have issued a direction to the parties to brief
that question, so it is briefed and part of the argument that
is raised.
There are issues that the parties brief that the briefing
itself raises the issue for the Court to consider. So it is
generally the practice, at least on the Second Circuit, to give
a party an opportunity to be heard on a question. And we also
have a procedure on the circuit that would give a party to be
heard because they can also file the petition for rehearing,
which is the panel enters a decision that the party disagrees
with and thinks the court has not given it an adequate
opportunity to present its arguments. Then it can file that at
the circuit.
I don't have--I am familiar with the Northwest case. I am
familiar with the holding of that case. I am a little less
familiar and didn't pay as much attention----
Senator Franken. With Gross.
Judge Sotomayor [continuing]. To the briefing issue. I do
know there that, like the Brand X case, what the Court says it
was attempting to do is to discern what Congress' intent was
under the ADEA, whether it intended to consider mixed motive or
not as a factor in applying the statute. And the majority
holding, as I understood it, was, look, Congress amended Title
VII to set forth the mixed motive framework and directed the
courts to apply that framework in the future. But having
amended that, it didn't apply that amendment to the age
discrimination statute. And so that would end up in a similar
situation to the Brand X case, which is to the extent that that
Congress determines that it does want mixed motive to be a part
of that analysis, that it would have the opportunity and does
have the opportunity to do what it did in Title VII, which is
to amend the act.
Senator Franken. In Title VII, they amended the act because
they had to, they were forced to. Right? Congress was compelled
to, in a sense, but not on ADEA.
Judge Sotomayor. I don't like characterizing the reasons
for why Congress acts or doesn't act.
Senator Franken. Okay. Let me jump ahead to something.
Yesterday a member of this Committee asked you a few times
whether the word ``abortion'' appears in the Constitution, and
you agreed that, no, the word ``abortion'' is not in the
Constitution. Are the words ``birth control'' in the
Constitution?
Judge Sotomayor. No, sir.
Senator Franken. Are you sure?
Judge Sotomayor. Yes.
[Laughter.]
Senator Franken. Okay. Are the words ``privacy'' in the
Constitution? Or the word.
Judge Sotomayor. The word ``privacy'' is not.
Senator Franken. Senators Kohl, Feinstein, and Cardin all
raised the issue of privacy, but I want to hit this head on. Do
you believe that the Constitution contains a fundamental right
to privacy?
Judge Sotomayor. It contains, as has been recognized by the
courts for over 90 years, certain rights under the liberty
provision of the Due Process Clause, that extend to the right
to privacy in certain situations. This line of cases started
with a recognition that parents have a right to direct the
education of their children and that the State could not force
parents to send their children to public schools or to bar
their children from being educated in ways a State found
objectionable. Obviously, States do regulate the content of
education, at least in terms of requiring certain things with
respect to education that I don't think the Supreme Court has
considered. But that basic right to privacy has been recognized
and was recognized. And there have been other decisions.
Senator Franken. So the issue of whether the word actually
appears in the Constitution is not really relevant, is it?
Judge Sotomayor. Certainly there are some very specific
words in the Constitution that have to be given direct
application. There are some direct commands by the
Constitution. You know, Senators have to be a certain age to be
Senators, and so you got to do what those words say. But the
Constitution is written in broad terms, and what a court does
is then look at how those terms apply to a particular factual
setting before it.
Senator Franken. Okay. In Roe v. Wade, the Supreme Court
found that the fundamental right to privacy included the right
to decide whether or not to have an abortion. And as Senator
Specter said, that has been upheld or ruled on many times.
Do you believe that this right to privacy includes the
right to have an abortion?
Judge Sotomayor. The Court has said in many cases--and as I
think has been repeated in the Court's jurisprudence in Casey--
that there is a right to privacy that women have with respect
to the termination of their pregnancies in certain situations.
Senator Franken. Okay. We are going to have a round two, so
I will ask you some more questions there.
What was the one case in ``Perry Mason'' that Burger won?
[Laughter.]
Judge Sotomayor. I wish I remember the name of the episode,
but I don't. I just was always struck that there was only one
case where his client was actually guilty and----
Senator Franken. And you don't remember that case?
Judge Sotomayor. I know that I should remember the name of
it, but I haven't looked at the episode----
Senator Franken. Didn't the White House prepare you for----
[Laughter.]
Judge Sotomayor. You're right, but I was spending a lot of
time on reviewing cases. But I do have that stark memory
because, like you, I watched it all of the time, every week as
well. I just couldn't interest my mother the nurse and my
brother the doctor to do it with me.
Senator Franken. Oh, Okay. Well, our whole family watched
it, and because there was no Internet at the time, you and I
were watching at the same time. And I thank you, and I guess I
will talk to you in the follow-up.
Judge Sotomayor. Thank you.
Chairman Leahy. Is the Senator from Minnesota going to tell
us which episode that was?
Senator Franken. I don't know. That is why I was asking.
[Laughter.]
Senator Franken. If I knew, I wouldn't have asked her.
Chairman Leahy. All right. So because of that, Judge, we
will not hold your inability to answer the question against
you.
I just discussed this with Senator Sessions, but I will
make the formal request. Is there any objection that the
Committee now proceed to a closed session, which is a routine
practice we have followed for every nominee since back when
Senator Biden was Chairman of this Committee?
Senator Sessions. Mr. Chairman, thank you. I think that is
the right thing to do, and there will be no objection that I
know of.
Chairman Leahy. Thank you very much. I appreciate the
comment, and so hearing none, the Committee will proceed to a
closed session, and we will resume public hearings later this
afternoon. And for the sake of those who have to handle all
electronic kinds of things, we will try to give you enough of a
heads-up.
We will stand in recess.
[Whereupon, at 3:07 p.m., the hearing was recessed for a
closed session.]
After Recess [3:37 p.m.]
Chairman Leahy. Judge, why don't we try it again? We'll
use--all right. This is not working either?
Senator Sessions. You've got a chance to be on history
here.
Chairman Leahy. Back to what is----
Senator Sessions. That's the quickest ride of any Senator
in history.
[Laughter.]
Chairman Leahy. Back to what it----
Senator Franken. I shouldn't do this.
[Laughter.]
Chairman Leahy. No, no. Stay right there.
Back to what Dr. Branda said. He wrote about Judge
Sotomayor, that ``she reflects, via her career on the bench,
the type of tempered restraint and moderation necessary for
appropriate application of the rule of law, and without a
doubt, Judge Sotomayor serves with a moderate voice without
displays of bias toward any party based on affiliation,
background, sex, color, or religion.'' The letter concludes,
``Even moderate and conservative evangelicals within our ranks
find no reason to conclude that the nomination and confirmation
of Judge Sonia Sotomayor would diminish the collective
application of constitutional rights and freedoms to a
religious community committed to life, liberty, and the pursuit
of happiness'', and goes on to urge us to confirm you.
Second, the Committee has received a joint letter of
support for Judge Sotomayor's nomination from more than 1,200
law professors from all States--all 50 States and the District
of Columbia, as well as from the Society of American Law
Teachers.
And they write, ``Her opinions reflect careful attention to
the facts of each case and a reading of the law that
demonstrates fidelity to the types of statutes and the
Constitution. She plays close attention to precedent. She has
proper respect for the role of courts and other branches of
government in our society.'' And the Society of American Law
Teachers writes, ``Far from being an activist judge,'' you,
Judge Sotomayor, ``decide cases on the basis of her
understanding of the law and applicable legal principles.''
I'm going to put that--those letters in the record.
[The letters appear as a submission for the record.]
Chairman Leahy. And now I will try one more time to see if
the microphone will work before my friends in the press get
too----
Senator Sessions. Well, Mr. Chairman, could I--I believe
you were not on the clock then, is that right? So I would like
to offer a few documents for the record, if that would be all
right.
Chairman Leahy. Go ahead.
Senator Sessions. I'd offer a letter from Club for Growth,
raising serious concern about the Didden v. Village of Port
Chester condemnation case where the Judge approved the taking
of a property that was going to have one drugstore built on it
and so another company could build on it. The Family Research
Council, the letter raising serious concerns, and without more,
they must stand in opposition to the nomination. The Concerned
Women of America write in opposition to this nomination. I'd
offer that into the record.
The American Center for Law and Justice, expressing
concerns about the nomination. The Americans United For Life
have written about the nomination, as well as the Gun Owners of
America. I would just offer those for the record at this time,
Mr. Chairman.
Chairman Leahy. Without objection, they will be included in
the record. That time will not count against either Senator
Sessions or myself.
[The letters appear as a submission for the record.]
Chairman Leahy. Now, on the clock.
Judge, one need look no further than the Lilly Ledbetter
case or the Diana Levine case, a woman from Vermont, to
understand the impact each Supreme Court case has on the lives
and freedoms of countless Americans. In Lilly Ledbetter's case,
five Justices on the Supreme Court struck a severe blow to the
rights of working families across our country and required the
Congress to pass legislation basically overruling the Supreme
Court case to say, yes, women should be paid the same as men.
Justice Ginsburg's dissent in that case criticized the
narrow majority for making a cramped interpretation of our
civil rights law.
In a different context, you sat on a three-judge panel in a
case involving strip searches of girls in a juvenile detention
center. The parents of two girls challenged a policy of strip
searching all those admitted to juvenile detention centers as a
violation of the Fourth Amendment's prohibition against
unreasonable searches; two of your male colleagues upheld that
search.
In a dissent, you said a controlling Circuit precedent
described what is involved in strip searches of these girls
without individual suspicion, who'd never been charged with a
crime, and warned that courts should be especially wary of
strip searches of children, since youth is a time and condition
of life when a person may be most susceptible to influence and
to psychological damage. As a parent and a grandparent, I agree
with you.
You also emphasized that many of these girls had been
victims of abuse and neglect and may be more vulnerable
mentally and emotionally than other youths their age.
The Supreme Court recently considered a similar case
involving an intrusive strip search of young Savanna Redding
because of school officials looking for ibuprofen tablets.
During oral argument in that case, one of the male Justices
compared the girl's strip search to changing for gym class.
Several of the other Justices' reaction was simply laughter.
Justice Ginsburg, the sole female Justice on the court,
described the search as humiliating, something that most
parents realize. Justice Souter, writing for the court,
concluded that school officials violated the Fourth Amendment
rights of Savanna Redding, adopted Justice Ginsburg's position
and reasoning.
I believe these cases underscore the need for diversity.
They underscore having judges with different life experiences
on the Federal bench, including the Supreme Court. It's been
said several times here, citing cases doesn't just take a
computer, otherwise we don't need real people. It does need
real-life experiences. You are a role model and a mentor to
many young people. We've heard that in all kinds of letters and
statements.
How do you think it affects these young people to see only
one woman on the Supreme Court today? How would it affect the
confidence in the judicial system of litigants like young
Savanna Redding?
Judge Sotomayor. Senator, I think that it's one of the
reasons that every President in the last two--or say 20 years,
25 years, has attempted to promote diversity on a basic
understanding that our society is enriched by its confidence
that our legal system is--includes all members of society. I
know that Justice Ginsburg has spoken about the fact of how
much she misses Justice O'Connor, and not because she does not
have a good relationship with her colleagues.
I understand that she and Justice Scalia have a very, very
close friendship and attend the opera together and travel
together, so it's not a question, I don't think, of whether
there's any question about the importance of the confidence
that Americans have in our system because they see that
everyone's represented as a part of our legal system, both as
judges, as lawyers, as participants on every level of our work.
Chairman Leahy. When John Roberts, now Chief Justice
Roberts, was before the Committee I asked him about a precedent
that moved me a great deal: Gideon v. Wainwright. I thought
about it later when I was a young lawyer being assigned to
defend cases, and later when I was a prosecutor, prosecuting
cases. As a young law student, I had an opportunity--in fact,
my wife and I had an opportunity. I was at Georgetown Law
School. We had lunch with Hugo Black shortly after getting
reversed in Wainwright. It's one of the most memorable times I
had in my law school career.
Now, Hugo Black went on there as a former Senator and he
recognized the Constitution's guarantee to counsel in a
criminal case was a fundamental right to a fair trial. He
called it an ``obvious truth in an adversary system of criminal
justice. Any person hauled into court who is too poor to hire a
lawyer can't have a fair trial unless counsel is provided for
them.''
There's a wonderful book, Gideon's Trumpet, that Anthony
Lewis wrote. I still have that book. I still have it. I can
almost recite, word for word, that book.
So I'm going to ask you exactly the same question I asked
then-Judge Roberts: doesn't Gideon stand for the principle that
to be meaningful, such a fundamental right as the right to
counsel requires assurances that can be exercised?
Judge Sotomayor. That is a part of the holding of Gideon.
It has been reaffirmed in terms of the right to counsel, not
only the right to counsel and the representation of criminal
issues, but the court has recognized that right with respect to
a competent counsel, the question of whether incompetent
counsel has caused the defendant damage as assessed under a
legal standard. But the question is, the right to counsel was
the core holding of Gideon.
Chairman Leahy. If the Constitution guarantees a person the
ability to exercise a certain fundamental constitutional right,
whatever it might be, and if they say--the court says they're
guaranteed that right, these rights are only meaningful if an
American can then enforce those rights in a court. Is that not
correct?
Judge Sotomayor. Their rights are meaningful and they are
rights that we work at ensuring are given meaning in the
courts. I know for a fact that one of the activities--I know
for a fact. I know, because I lived it. When I became a judge
on the Second Circuit I was given responsibility for the Second
Circuit's Committee on the Criminal Judge Act and Pro Bono
Service. Generally, that--the chair of the committee is the
most recent addition to the court, and immediately upon the
confirmation of another judge, that judge takes over the
chairpersonship.
I, because of my belief in the meaningfulness of
representation and its importance to the justice system, have
held that position probably for the longest judge in the Second
Circuit. With the agreement of judges who came after me, I
served as the chair of that committee. I don't know--remember
exactly the number of years, but it was certainly a very long
period of time, and I worked very hard to improve both the
processes of selection of Criminal Justice Act attorneys--those
are the attorneys that represent indigent defendants in
criminal actions--and to ensure that there was adequate review
of their qualifications and regular review of their
performance.
Chairman Leahy. I don't want to put words in your mouth,
but is it safe to say that if you have a constitutional right,
as a practical effect, that only works if you can enforce that
constitutional right?
Judge Sotomayor. Clearly, that's--in terms of the--it's
given meaning through actions, and actions by the legislature,
who have provided funds for the retention of qualified counsel,
and the court's obligation to ensure that that right is
meaningful in practice.
Chairman Leahy. Thank you. I've used just barely over half
my time. I'll reserve time.
Senator Sessions. And hope that sets an example.
Senator Sessions. I'm impressed, Mr. Chairman. Thank you.
You know, we talked a little earlier about judicial
activism. Senator--our new Senator raised that. We have a good
definition. Our former chairman, Senator Hatch. He's given us a
definition for a number of years, and that is when a judge
allows their personal, political, or other biases to overcome
their commitment to the rule of law. That's not as well as he
said it, but that's pretty close.
Senator Hatch. That's better than I said it.
Senator Sessions. But I think that's--and you can have,
Senator Franken, a liberal or conservative activist judge, and
judges need to be watched, as we all do, to make sure that they
stay faithful to the law.
I really believe in this legal system. I think it's so
fabulous. I've traveled the world with the Armed Services
Committee and I see these countries and it just breaks your
heart. You think you can go in and write a code of law and they
can make it work, and it's just--you can write them all day,
but it--making it actually be real in every village, hamlet,
and farm, and city in these countries is so, so hard. We are so
blessed.
So I just want to say, Judge, I appreciate you and look
forward to questioning. But I--I just--my approach is to try to
do the best thing we can for America in this fabulous system
we've got.
We've--I think our side is committed to being fair
throughout this hearing, and trying to be thoughtful in our
questions. Nobody's perfect, but I think everybody's done a
pretty good job at that.
Now, I've listened to your testimony carefully, looked at
some transcripts, and I have to say, I'm still concerned about
some of the issues that have been raised. You're seeking a
lifetime appointment. This is the one chance we have to ask
those questions and we must do that.
With regard to the ``wise Latina'' quote where you said
that they--they should make decisions that are better than a
white male, you--and the question of Senator--Justice
O'Connor's comment about a, wise old woman and a wise old man
should--would reach the same conclusion.
I would just say there's a difference. Both may well be a
rhetorical flourish or rhetorical approach to stating a truth,
but I think Justice O'Connor's approach, in truth, was that
judges, under the American ideal, should reach the same
decision if--if they can put aside all their biases and
prejudices. And you seem to say in your approach, and
throughout that speech, that backgrounds, sympathies and
prejudices can impact how you rule, and you could expect a
different outcome.
How would you respond to that?
Judge Sotomayor. Senator, I want to give you complete
assurance that I agree with Senator Hatch on his decision--his
definition of activism. If that's his definition, that judges
should not be using their personal biases, their personal
experiences, their personal prejudices in reaching decision and
that's how he defines activism, then I'm in full agreement with
him.
To the extent that my words have led some to believe that I
think a particular group has--has--is better than another in
reaching a decision based on their experiences, my rhetorical
device failed. It failed because it left an impression that I
believe something that I don't. And as I have indicated, it was
a bad choice of words by me in--because it left an impression
that has offended people and has left an impression that I
didn't intend. As I indicated earlier, I----
Senator Sessions. But did it not--could I just briefly
interrupt? Did it not suggest that your approach to the
question of objectivity and commitment to it was different than
Justice O'Connor's? Didn't you cite it in--in opposition to her
view?
Judge Sotomayor. As I--I can explain it, is I didn't
understand her to mean that she thought that if two judges
reached a different conclusion, that one of them was unwise
because judges disagree as to conclusions. And I know that
there's an aspiration that the law would be so certain that
that would never happen, but it's not that certain. Laws are
not written clearly, on occasion, by Congress. Courts apply
principles of construction that suggest an approach to a
particular set of facts that might differ. All of that doesn't
make one or the other judge wise. So----
Senator Sessions. I would agree with that. And I--I think
one judge--you can have honest disagreements. I think that she
was expressing the ideal that if everybody were perfectly wise,
they may reach the same decision.
With regard to the Second Amendment, this is a hugely
important issue. Isn't it true, Judge, that the decision that
you and your panel rendered, if it were to be the law of the
United States and if it is not reversed by the U.S. Supreme
Court, would say that the Second Amendment is subject to--is
not--the Second Amendment does not protect the right of the
people to keep and bear arms in any city, county, and State in
America. That is that New York, or Atlanta, or Philadelphia, or
Houston, Los Angeles, or any State in between could pass a law
that barred firearms within those States, and isn't this a
really big issue right now for the United States Supreme Court
coming up soon?
Judge Sotomayor. It may well come up. And I'm not familiar
enough with the regulations in all 50 States to know whether
there's an absolute prohibition in any one city or State
against the possession of firearms. All I can speak about is
that, as in the case the panel looked at, the question for the
court would not be whether the government action in isolation
is constitutional or not. The question--in isolation. It would
be, what's the nature of the government interest in the statute
it's passing? And depending on the----
Senator Sessions. That's the rational basis test?
Judge Sotomayor. Exactly. And so----
Senator Sessions. Well, but the rational basis test could
very well be fairly interpreted to say that since guns kill
people, it's rational for a city to vote to eliminate all guns.
I would just say to you, isn't it true that if a city could
pass that very low test they could ban firearms if your
decision is not reversed by the Supreme Court?
Judge Sotomayor. Because that question of incorporation
before the court will arise, I don't feel that I can comment on
the merits of the hypothetical. All I can say is, regardless of
what standard of review the court uses, it has struck down
regulations under every standard of review used, whether it's
rational basis, or in some instances strict scrutiny, et
cetera. There is the constitutional----
Senator Sessions. Judge, I would just say that you held,
following some law in the 1800's--you held, though, that the
Second Amendment does not apply to the States, even though it
uses the words ``the right of the people to keep and bear arms
shall not be infringed''. So I'm--I think we have a--this is a
big issue and I--in your opinion, you said it was settled law.
You used some very strong language. You said it was not ``a
fundamental right'', and you said that in your testimony
earlier, that ``in Supreme Court parlance, the right is not
fundamental.'' You said that, I believe, to Senator Leahy in
this hearing. So I guess my question is, have you made up your
mind such that if you were on the Supreme Court and it was not
your case that came up--and it could be your case--don't you
feel that you should recuse yourself since you've already
opined on this fundamental issue?
Judge Sotomayor. I have not prejudged the question that the
Supreme Court left open in Heller, and the question the court
left open itself was, should it reexamine the issue of whether
this right should be incorporated against the States or not? It
didn't, in large measure, because the issue before the court at
that moment was the right with respect to Federal Government
regulation.
I have not made up my mind. I didn't say that I believed it
wasn't fundamental or that I hold a view that it's not. I don't
hold a view about whether it should be incorporated or not. The
issue before me and the panel in Maloney was whether the
Supreme Court had said that and what Second Circuit had said
about that issue.
Senator Sessions. Has any other Circuit said it was not a
fundamental right, other than your--your panel's decision?
Judge Sotomayor. There is one Circuit, the Seventh Circuit,
in a decision written by Judge Easterbrook, who came to the
same conclusion.
Senator Sessions. Did he say--did he say it was not a
fundamental right, though, in that opinion? I don't believe
they did.
Judge Sotomayor. He may not have because----
Senator Sessions. And that was a question--my question I
was asking. So it's a problem for people. We ask about
abortion. It's not explicitly referred to in the Constitution,
but you say that's a fundamental right. And we have in the
Constitution language that says ``the right of the people to
keep and bear arms shall not be infringed'', and there's a
question about that, that it's not a fundamental right. So I
think that's what makes people worry about our courts and our
legal system today and whether agendas are being promoted
through the law rather than just strictly following what the
law says.
Judge Sotomayor. Senator, may I----
Senator Sessions. Yes.
Judge Sotomayor.--address my use of the word
``fundamental'' ? Fundamental is a legal term that I didn't
make up, it was the Supreme Court's term. And it used it in the
context--and uses it in the context--of whether a particular
constitutional provision binds the States or not. And so I
wasn't using the word--I. The panel wasn't using the word in
Maloney in the sense of its ordinary meaning.
Senator Sessions. I know you were using the constitutional
legal meaning, but that's hugely important because if it's not
a fundamental right, it's not incorporated. Isn't that correct?
Judge Sotomayor. Well----
Senator Sessions. And it will not apply to the States
fundamentally. Isn't that the bottom line?
Judge Sotomayor. Well, when the court looks at that issue
it will decide, is it incorporated or not, and it will
determine, by applying the test that it has subsequent to its
old precedent, whether or not it is fundamental, and hence,
incorporated. But the Maloney decision was not addressing the
merits of that question, it was addressing what precedent said
on that issue.
Senator Sessions. All right. Well, we'll review that.
On the question of foreign law, you, yesterday, said that--
said this: ``Unless the statute requires or directs you to look
at foreign law,'' and some do--some statutes do, by the way.
You go on to say, ``The answer is no. Foreign law cannot be
used as a holding, or a precedent, or to bind or influence the
outcome of a legal decision interpreting the Constitution or
American law.'' That's a pretty good statement, I think. But
this is what you said before in your speech to the American
Civil Liberties Union, actually in April, just two or 3 months
ago in Puerto Rico.
You said this: ``International law and foreign law will be
very important in the discussion of how we think about
unsettled issues in our own legal system. It is my hope that
judges everywhere will continue to do this, because within the
American legal system we're commanded to interpret our law in
the best way we can, and that means looking to what other--
anyone else has said to see if it has persuasive value.'' So
that's troubling.
Now, you also said, yesterday, that you agreed with Justice
Scalia and Justice Thomas on the point that one has to be very
cautious, even in using foreign law with respect to things
American law permits you to do. I don't think that's exactly
correct or a fair summary of the import of your speech.
This is what you said before the ACLU group a month or two
ago: ``And that misunderstanding'', about using foreign law,
``is, unfortunately, endorsed by some of our Supreme Court
Justices.'' Both--``unfortunately endorsed''. Both Justice
Scalia and Justice Thomas have written extensively, criticizing
the use of foreign and international law in Supreme Court
decisions. They have somewhat a valid point, and you point that
out.
But then you go on to say, ``But I think I share more the
ideas of Justice Ginsburg and her thinking in believing that
unless American courts are more open to discussing the ideas
raised in foreign cases and by international cases, that we're
going to lose influence in the world.''
So everybody knows. There's been a fairly robust, roaring
debate over this question. There are basically two sides, one
led by Justice Ginsburg and one led by Justices Scalia and
Thomas. Don't you think a fair reading of this statement is
that you came down on the side of Justice Ginsburg?
Judge Sotomayor. No, sir. Because these conversations were
in the context--and discussions were in the context of my
pointing out, just as she had, that foreign law can't be a
holding, it can't be precedent, it can't be used in that way.
She is talking about the way I was to--and what I said in my
speech at the beginning and the end, ideas. What are you
thinking about? Judges use Law Review articles, they use
statements by other courts. The New York Court of Appeals, in a
recent case, looked to foreign law to address an issue that it
was considering, not in terms of a holding for the court, but a
way of thinking about it that it would consider.
My point is that I wasn't advocating that it should ever
serve as precedent or ever serve as a holding. I was talking
about the dialog of ideas and----
Senator Sessions. Well, you know, we go--I just think that
you laid out positions and you came down on one side, and I
think that's a fair summary of that speech which other people--
others can read and make up their own mind.
You ask about the PRLDF, the Legal Defense Fund of which
you were a member and a member of the board for 12 years. And
in response to Senator Graham's question, you say you've never
seen any briefs and that the main focus of your work at the
organization was fund raising. Is that accurate?
Judge Sotomayor. When I was responding to the Senator I was
talking about the board in general. I belonged to many
committees, and so I did other things besides fund raising. But
I was beginning to explain what the structure of the board was
and what the primary responsibility of board members is. But
clearly, board members serve other functions in an
organization.
Senator Sessions. You did serve on the Litigation
Committee, and boards are supposed to, I would think--and
legally are required--to superintend the activities of the
organization that they're a member of. And then you have
committees of the board who do various things. I'm looking at a
June 1987 document, reported minutes of the board, the
Litigation Committee: ``Sonia Sotomayor reported that the
committee, in addition to reviewing and recommending a
litigation program, had identified three initiatives.''
In October 1987--I'm just looking at some of the documents
we were given--litigation report. ``Chairman Sotomayor
summarized the activities of the committee over the last
several months, which included the review of the litigation
efforts of the past and present, and initial exploration of
potential areas of emphasis. Member Sotomayor advised that a
preliminary report would be provided at January meeting.'' And
then at the January meeting, there's about a 50-page document
summarizing 30 or more cases that the board had undertaken.
A number of them are pretty significant and very consistent
with the kind of case that we had in the Firefighters case,
where the board had filed litigation to really basically insist
that you have perfect harmony between the applicants for a job
and those who are selected for promotions.
Isn't that true that you were more active than you may have
suggested to Senator Graham yesterday?
Judge Sotomayor. No, because, as I said, I was--I started
to describe the role of the board generally and we were not
addressing the question of what I did or how I participated.
That memo has to be examined in context. The memo was a moment
in our 12-year history where the board was planning a retreat
to think about what directions, if any, we should consider
moving into or not. We were not reviewing the individual cases
to see if the individual cases--what positions were taken, the
type of strategies that we----
Senator Sessions. Didn't you know the cases that--that
you--the position--the organization was--well my time was
running out.
Chairman Leahy. Your time has run out. I was wondering if
you'd like to finish your answer.
Senator Sessions. I'll let you answer. But I'm just want
to----
Judge Sotomayor. The end of my answer was, the Fund had
been involved in a series of areas, employment, public health,
education, and others. And so the broader question for the Fund
was, should we be considering some other areas of interest to
the community? We held a retreat in which speakers from a
variety of different civil rights organizations, academics, a
number of people came and just talked to us. I don't actually
remember there being a firm decision that followed that, but it
was a part of a conversation, the sort of retreats that even my
court has engaged in: what are we doing; what are we thinking
about? But it wasn't a review of each individual case to judge
its merits.
Senator Sessions. Thank you.
Chairman Leahy. Judge, there's been a lot of talk about the
Maloney case. I should note, it's not what you said. It's what
Justice Scalia's opinion for the Supreme Court said in his
decision, left in place the 123-year-old Supreme Court
precedent on guns, did it not?
Judge Sotomayor. Justice Scalia, in a footnote in the
Heller decision, noted the court's holding that the Second
Amendment wasn't incorporated against the States.
Chairman Leahy. The only reason I mention that, I've been a
gun owner since I was probably 13 years old. I've seen nothing
done by the Supreme Court, by the Second Circuit Court of
Appeals, by the Congress, or by our State legislature that is
going to change, one way or the other, the ownership that I
have of the guns I now have.
Senator Kohl.
Senator Kohl. Thank you very much, Senator Leahy.
Judge Sotomayor, you've told us that you will follow the
law and follow precedent, and you've made a very big point of
this and that is all well and good.
But some of the court's most important landmark hearings--
landmark rulings overruled longstanding precedent, like Brown
v. Board of Education, which ended legal segregation. Now, as
an appellate judge, as we know, you're required to always
follow precedent. But as a Supreme Court Justice, you will have
the freedom to depart from precedent.
So tell us how you will decide when it is appropriate to
alter, amend, or even overrule, precedent.
Judge Sotomayor. The doctrine of stare decisis is a
doctrine that looks to the value in the stability, consistency,
predictability of precedent and it starts from the principles
that precedent are important values to the society because it
helps those goals. It also guides judges in recognizing that
those who have become before them, the judges who have looked
at these issues, have applied careful thought to the question
and view things in a certain way, and a court should--a judge
should exercise some humility and caution in disregarding the
thoughts and conclusions of others who came--who came in that
position before them.
But that's not to suggest that the doctrine says that
precedence is immutable. And, in fact, I believe that England
had an experiment with that question and--and it was not
horribly successful. Precedents are precedents. They're not
immutable, they have to change in certain circumstances. And
those circumstances generally have been described by Justice
Souter in the Casey case, are probably the best articulation
people have come to in sort of talking about the factors that
courts think about.
And it starts with, well, how much reliance has the society
put into the precedent? What are the costs of changing it? I
shouldn't say ``start''. He put them in a different order.
There's no real importance to the order because all are factors
that you put into the weighing as a judge looks at an existing
precedent. It looks to whether the--whatever the court has
said. Is it providing enough guidance to the court's below and
to--and for people to determine what they can or can't do? Is
the precedent administratively workable?
Number three--and as I said, there's no ordering to this--
are the facts that the court assumed in its older precedents.
Have those changed so that it would raise a question about the
court revisiting a precedent? Also, has--are the--there are
developments in related fields to precedents and approaches
that are developed in those cases that may bring into question
the foundation of an older precedent.
Brown v. Board of Education has often been described as a
radical change by some, and the public perceives it as a
radical change. When you actually look at its history, you
realize there had been jurisprudence for over 20 years by the
court striking down certain--certain schemes that provided
``separate but equal'', but in fact didn't achieve their stated
goal.
And so there was underpinnings in Brown v. Board of
Education that, in those precedents that came before Brown that
obviously gave the court some cause, some reason to re-think
this issue of ``separate but equal''. They also had before them
the--probably one of the most famous dissents in American
history, which was the dissent by Justice Harlan in Plessy.
And Justice Harlan so carefully laid out what the
Constitution said, what the principles of the Constitution were
that motivated the--the Congress to pass those amendments. He
laid out the court's precedents in that area and he said,
separate but equal is just not consistent with the
Constitution.
Now, this isn't an opinion where he described another group
of people as different, and so it wasn't that he was being
motivated by his personal views. He was being motivated by a
view of the law that the court, in Brown, made a change about.
One final factor the court obviously looks at is the number
of times a precedent has been reaffirmed by the court, but all
of these things are decided on the basis of judgment of a
particular case and the arguments that are raised before a
judge, and recognizing as a judge that precedent is deserving
of deference, precedent, and changing it should be done
cautiously by a court, but precedent can't stand if other
things counsel that it not.
Senator Kohl. Good.
Judge, I'd like to return to the topic of antitrust. Two
years ago in the Twombly case, Justice Souter wrote an opinion
that sharply departed from precedent when it held that a
plaintiff must show extensive evidence to support an antitrust
case before the opportunity for any discovery, otherwise the
case would be dismissed. This decision makes it very difficult
for any plaintiff to bring an antitrust action, particularly a
consumer or small business without the resources to develop
extensive economic evidence.
What is your assessment of this decision? Do you share the
concern of many that this does serious damage to enforcement of
antitrust law?
Judge Sotomayor. As with all issues of statutory
construction, my charge as a judge would be, how do I apply a
court's holding in a particular case in the next situation
before me? The concern that you express is one that I have
heard about that expressed by some, but as a judge I don't make
policy. I don't make the policy choices for Congress. I'm
charged with looking at a particular situation that comes
before me, looking at the court's precedent and applying it to
that situation.
With respect to that case, I--I--that case, as I understand
the case, had to do with how much had to be pled. I didn't
understand it to mean that there had to be the presentation of
evidence at the pleading stage, just what had to be pled to
withstand a motion to dismiss in the case.
Senator Kohl. Well, my understanding of his decision is
that, in the future, plaintiffs must show extensive evidence to
support an antitrust case before the opportunity for any
discovery or else the case will be dismissed. Now, assuming
that's correct--and I'm not telling I'm positive, but assuming
that's correct--does that cause you concern?
Judge Sotomayor. As I said, the issue of concern is not how
I look at the court's precedents, because what I'm doing in
looking at the court's precedent is thinking about how it
applies to another case. The question of how to do that and
whether that's right by the court would be a question that
Congress, who has passed the antitrust laws, would have to, in
the first instance, think about changing.
Senator Kohl. So then are you saying in a case that would
follow you would necessarily be bound by Justice Souter's
decision in Twombly?
Judge Sotomayor. The court considers its various precedents
in the context of a new situation. In the cases decided by the
courts, they're applied to the facts of the particular case.
Twombly is considered, as are all the court's precedent in a
new case, that examines the issue of what a complaint must
allege or not allege.
Senator Kohl. So you would not be bound by the Twombly
precedent, is that what you're saying?
Judge Sotomayor. No. It's precedent.
Senator Kohl. So you would be bound?
Judge Sotomayor. It must be applied, as is all the court's
existing precedents that have not been rejected by the court.
It has to be considered and has to be weighed in the situation
presented.
Senator Kohl. All right. I think maybe we can talk about
that subsequently to understand your meaning and what I'm
saying, my reading of Twombly versus your reading of Twombly,
as it will affect future antitrust cases. My understanding is
that it will have a very negative effect on--a negative impact
on the average person or small business' ability to bring an
antitrust case that might otherwise have merit, because of the
requirement that they present enormous amounts of evidence even
before they can go to discovery or the case is dismissed.
Now, if I'm speaking accurately, then I think that that's a
precedent that needs to be thought about very carefully, and
that's why I asked the question.
Judge Sotomayor. And Senator, the one thing I do know as a
judge is that every argument gets made to the courts not on one
occasion, but many. The question that will arise is: what's the
extent of the court's application in the next case?
Senator Kohl. All right. Finally, Judge, the Supreme Court
not only has the power, as you know, to decide cases and to
construe the Constitution, but it also has the sole and
absolute power to decide which cases it hears. If you are
confirmed, only you and three other Justices can decide whether
a case will be heard to begin with by the Supreme Court. In
recent times, the Supreme Court has received appeals in nearly
7,000 cases each year and it only hears about 70 or 80 cases,
as you know. In other words, the Justices choose to hear only
about 1 percent of the appeals that they receive. This is
obviously a very, very crucial power that Justices have.
Now, I recognize that one of the criteria for choosing
cases is to resolve disagreement among the Circuit Courts about
a particular aspect of the law, but many of the most important
and prominent cases in the history of the Supreme Court did not
involve splits into Circuit Courts, but were instead cases of
national importance.
So how will you determine which cases are so important as
to warrant review by the Supreme Court? In other words, which 1
percent of those appeals will you consider?
Judge Sotomayor. What I know, and you did accurately
describe one aspect of the Supreme Court's local rules that
suggest just that Justices will consider a variety of factors
in whether to grant cert or not, and one of those listed
factors is disagreement among the Circuits, disagreements among
the Circuits and Circuits and State courts and issues that have
not been adequately addressed but require being addressed for a
variety of different reasons.
It is very difficult to talk in the abstract about when
cert should be granted because each situation presents a
different set of facts and each question about whether a case
is in the right posture to look at an issue--as I said
yesterday, sometimes there--yesterday I said--I may have
explained earlier in a response to Senator Specter, and I know
that you had stepped away, there are procedural--there are
cases that present other arguments than the one that the
Circuit split exists on, and those other arguments might
dispose of the case in the way the Circuit Court did and not
necessitate the reaching of an issue.
There's a question, at least as some Justices have defined
it, of whether there's been enough percolation among the
Circuit Courts so that all of the views of a particular issue
have been fully explored. The circumstances and the issues that
each Justice uses depends on the facts and the posture of what
comes before it. I would obviously consider the court's local
rules. I would give consideration to the point that some have
raised, that the court is not doing enough.
But that can't counsel taking cases. That could only be--
look at my--look at the workload and see, can the case--can the
court do this if it meets all the other criteria that goes into
the mixture of whether to grant cert or not? You don't, like
Congress, think about policy, we're going to decide 150 cases
this year. You look at the cases that come before you and you
figure out which ones are in a place to be reviewed.
Senator Kohl. Thank you.
Chairman Leahy. Thank you very much.
Senator Hatch, we'll turn to you and then we will--and then
we will take a break after you're finished.
[Recess at 4:55 p.m. to 5:08 p.m.]
Chairman Leahy. Welcome back, Judge. We will skip over one
and go to Senator Feingold. You are recognized for up to 20
minutes. I keep adding the ``up to'' hoping somebody will
follow my example.
Senator Feingold. Well, I----
Chairman Leahy. But I do mean nobody will be cut off before
20 minutes.
Senator Feingold. Thank you, Mr. Chairman. I understand,
and I'd like to begin using my time by asking that a letter
from former members of PRLDEF's Board describing the role of
board members, which does not include choosing or controlling
litigation--I'd ask unanimous consent.
Chairman Leahy. Without objection it will be part of the
record.
[The letter appear as a submission for the record.]
Senator Feingold. Thank you, Mr. Chairman.
Judge, again, thanks for your tremendous patience. I'd like
to start by talking for a moment about the recent Supreme Court
decision in Caperton v. Massey. I consider this a significant
case that bears upon the flood of special interest money that
threatens to undermine public confidence in our justice system.
The facts of this case are notorious: John Grisham used them as
an inspiration for his novel, The Appeal.
A jury in West Virginia returned a $50 million verdict for
a large coal company, and pending the appeal, the company's CEO
spent $3 million to elect an attorney named Brent Benjamin to
the state supreme court. That was a huge amount of money,
relatively speaking--more than the amount spent by all of
Benjamin's other financial supporters combined. Benjamin won
the election, became a West Virginia Supreme Court Justice, and
lo and behold, he voted to overturn that $50 million verdict
against his main campaign contributor. Twice, he refused to
recuse himself in the case, despite his obvious conflict of
interest.
Last month, the Supreme Court held that Benjamin's failure
to recuse himself was intolerable under our Constitution's
guarantee of due process of law. The court also noted
approvingly that most states have adopted codes of judicial
conduct that prevent this kind of conflict, and to that end, I
commend the Wisconsin Supreme Court's plan to revise its
recusal rules to provide additional safeguards that protect
judicial impartiality.
You've been a judge for many years and you may have seen
examples when you thought a judge should have withdrawn,
although hopefully none were as egregious as this case. In your
opinion, what additional steps should judges and legislators
take to ensure that the judiciary is held to the highest
ethical standards and that litigants can be confident that
their cases will be handled impartially?
Judge Sotomayor. Senator, I would find it inappropriate to
make suggestions to Congress about what standards it should
hold judges to or litigants to. That's a policy choice that
Congress will consider.
I note that the American Bar Association has a Code of
Conduct that applies to litigants. The Judicial Code has a Code
of Conduct for judges. And as you noted in--in the State system
where judges are elected, many States are doing what I just
spoke about, making and passing regulations.
Caperton was a case that was taken under the local rules of
the Supreme Court, presumably, that exercises supervisory
powers over the functioning of the courts and it presented,
obviously, a significant issue because the court took it and
decided the case.
At issue fundamentally is that judges, lawyers, all
professionals must, on their own, abide by the highest
standards of conduct. And I have given a speech on this topic
to students at Yale at one point where I said the law is only
the minimum one must do. Personally, one must act in a way in
cases to ensure that you're acting consistent with your sense
of meeting the highest standards of the profession.
Senator Feingold. Thank you, Judge.
As I'm sure you know, on the last day of the term, the
Supreme Court ordered that a pending case involving federal
election law called Citizens United v. FEC be re-argued in
September. It's quite possible that you will be a member of the
court by then. I do not intend to ask you how you would rule in
that case, but I do want to express my very deep concern about
where the Supreme Court may be heading, and then pose a general
question to you.
In 2003, the court, in a 5-4 ruling, upheld the McCain-
Feingold bill against constitutional challenge. I believe that
ruling accurately applied the court's previous precedents and
recognized that Congress must have the power to regulate
campaign finance to address serious problems of corruption and
the appearance of corruption.
Since the arrival on the court of its two newest members,
the court seems to have started in another direction on these
issues, striking down or significantly narrowing two provisions
of the law: the Millionaire's Amendment in the Davis case and
the issue ad provision in Wisconsin Right to Life. Several
Justices have even argued that corporations and living persons
should have the same constitutional rights to support their
chosen candidates and that Austin v. Michigan Chamber of
Commerce, a case rejecting that idea, should be overruled.
Austin is premised on what I believe is an absolutely
reasonable conclusion that the political activities of
corporations may be subjected to greater regulation because of
the legal advantages given to them by the states that allow
them to amass great wealth. In scheduling re-argument in the
Citizens United case, the court specifically asked the parties
to address whether Austin should be overruled. If the court
does that, and depending on how exactly it rules, Judge, it may
usher in an era of unlimited corporate spending on elections
that the nation has not seen since the 19th century.
Without addressing the specifics of the Citizens United
case, I'd like to ask you what the Constitution and the Supreme
Court's precedents generally provide about the rights of
corporations, and what the current state of the law is as far
as corporate participation in elections, as you understand it.
Judge Sotomayor. Senator, I have attempted to answer every
question that's been posed to me. You have noted that Citizens
United is on the court's docket for September. I think it's
September 9th. If I were confirmed for the--to the court, it
would be the first case that I would participate in.
Given that existence of that case, the very first one, I
think it would be inappropriate for me to do anything to speak
about that area of the law because it would suggest that I'm
going into that process with some prejudgment about what
precedent says and what it doesn't say, and how to apply it in
the open question the court is considering. I appreciate what
you have said to me, but this is a special circumstance given
the pendency of that particular case.
Senator Feingold. And frankly, Judge, I probably would say
the same thing if I were in your shoes, given----
[Laughter.]
Senator Feingold.--given the facts as they are. I
appreciate the opportunity to express what I wanted to say
about that.
And with that, Mr. Chairman, I'm going to use up less than
half of my time.
Chairman Leahy. All right. Thank you. I think you've set a
fantastic example.
[Laughter.]
Chairman Leahy. I commend you. I say that in a totally
nonpartisan fashion.
Senator Grassley.
Senator Grassley. I assume that I get the time that he
didn't use?
Chairman Leahy. No.
[Laughter.]
Chairman Leahy. No. After your demonstrator, was it
yesterday--your demonstrator, that you tend to turn people on,
we don't need any more.
[Laughter.]
Senator Grassley. Okay.
Chairman Leahy. We don't need any more excitement, Senator
Grassley.
Senator Grassley. Yeah.
Chairman Leahy. We want it as low-key as possible. But
you--you do have up to 20 minutes. The opportunity is up to 20
minutes.
Senator Grassley. Now, I believe that I'm going to ask you
something you've never been asked before during this hearing, I
hope. I'd like to be original on something.
I want to say to you that there's a Supreme Court decision
called Baker v. Nelson, 1972. It says that the Federal courts
lack jurisdiction to hear due process and equal protection
challenges to State marriage laws ``for want of substantial
Federal question'', which obviously is an issue the courts deal
with quite regularly, I mean, the issue of is it a Federal
question or not a Federal question.
So do you agree that marriage is a question reserved for
the States to decide based on Baker v. Nelson?
Judge Sotomayor. That also----
Senator Grassley. I thought I'd ask a very easy----
Judge Sotomayor.--is a question that's pending and
impending in many courts. As you know, the issue of marriage
and what constitutes it is a subject of much public discussion,
and there's a number of cases in State courts addressing the
issue of what--who regulates it, under what terms.
Senator Grassley. Can I please interrupt you?
Judge Sotomayor. Uh-huh.
Senator Grassley. I thought I was asking a very simple
question based upon a precedent that Baker v. Nelson is, based
on the proposition that yesterday, in so many cases, whether it
was Griswold, whether it was Roe v. Wade, whether it was
Chevron, whether it's a whole bunch of other cases that you
made reference to, the Casey case, the Gonzalez case, the
Leegan Creative Leather Products case, the Kelo case. You made
that case to me. You said these are precedents. Now, are you
saying to me that Baker v. Nelson is not a precedent?
Judge Sotomayor. No, sir. I just haven't reviewed Baker in
a while, and so I actually don't know what the status is. If it
is the court's precedent, as I've indicated in all of my
answers, I will apply that precedent to the facts of any new
situation that implicates it.
Senator Grassley. Well----
Judge Sotomayor. Always the first question for a judge.
Senator Grassley. Well, then tell me--tell me what sort of
a process you might go through if a case, a marriage case, came
to the Supreme Court of whether Baker v. Nelson is precedent or
not, because I assume if it is precedent, based on everything
you told us yesterday, you're going to follow it.
Judge Sotomayor. The question on a marriage issue will be,
two sides will come in. One will say Baker applies, another
will say this court's precedent applies to this factual
situation, whatever the factual situation is before the court.
They'll argue about what the meaning of that precedent is, how
it applies to the regulation that's at issue, and then the
court will look at whatever it is that the State has done, what
law it has passed on this issue of marriage, and decide, Okay,
which precedent controls this outcome? It's not that I'm
attempting not to answer your question, Senator Grassley. I'm
trying to explain the process that would be used Again, this
question of how, and what is constitutional or not, or how a
court will approach a case and what precedent to apply to it,
is going to depend on what's at issue before the court. Could
the State do what it did?
Senator Grassley. Can I interrupt you again? Following what
you said yesterday, that certain things are precedent, I assume
that you've answered a lot of questions before this Committee
about--even after you said that certain things are precedent,
of things that are going to come before the court down the road
when--if you're on the Supreme Court. You didn't seem to
compromise or hedge on those things being precedent. Why are
you hedging on this?
Judge Sotomayor. I'm not on this because the holding of
Baker v. Nelson is it's holding. As a holding, it would control
any similar issue that came up. It's been a while since I've
looked at that case so I can't----
Senator Grassley. Okay
Judge Sotomayor.--as I could with some of the more recent
precedent of the court or the more core holdings of the court
on a variety of different issues, answer exactly what the
holding was and what the situation that it applied to. I would
be happy, Senator, as a follow-up to a written letter, or to
give me the opportunity to come back tomorrow and just address
that issue. I'd have to look at Baker again.
Senator Grassley. I would appreciate it.
Judge Sotomayor. It's been too long since I've looked at
it.
Senator Grassley. Yeah. You----
Judge Sotomayor. So it may have been, sir, as far back as
law school, which was 30 years ago.
Senator Grassley. Oh, were you probably in grade school,
you were at that time.
Judge Sotomayor. Yeah. It was--I know that I looked at it,
sir.
Senator Grassley. Okay. Okay.
I want to go on, but I would like to have you do that, what
you'd suggested you'd answer me further after you've studied
it.
I have a question that kind of relates to the first
question. In 1996, Congress passed, and President Clinton
signed into law, the Defense of Marriage Act which defined
marriage for the purpose of Federal law as between one man and
one woman. It also prevents a State or territory from giving
effect to another State that recognizes same-sex marriages.
Both provisions have been challenged as unconstitutional and
Federal courts have upheld both cases, one is the Wilson case,
one is the Bishops case, in District Court.
Do you agree with Federal courts which have held that the
Defense of Marriage Act does not violate the full faith and
credit clause and is an appropriate exercise of Congress' power
to regulate conflicts between laws in different States?
Judge Sotomayor. That's very similar to the Austin
situation, but the ABA rules would not permit me to comment on
the merits of a case that's pending or impending before the
Supreme Court. The Supreme Court has not addressed the
constitutionality of that statute, and to the extent that lower
courts have addressed it and made holdings, it is an impending
case that could come before the Supreme Court. So, I can't
comment on the merits of that case.
Senator Grassley. Okay. Have you ever made any rulings on
the full faith and credit clause?
Judge Sotomayor. I may have. But if your specific question
is, have I done it with respect to a marriage-related issue----
Senator Grassley. Well, I'm not----
Judge Sotomayor. No.
Senator Grassley. On any--on anything in the full faith and
credit clause.
Judge Sotomayor. I actually have no memory of doing so.
Senator Grassley. Okay. That's Okay. No, you can stop
there. That's Okay.
Now, I'm going to go to a place where Senator Hatch left
off, but I'm not going to repeat any of the questions that he
asked. But there's one that I want to ask, and I feel a little
bit guilty on this. My dad used to have a saying to us kids
when we were harping on something. He says, ``When are you
going to quit beating a dead horse? '' But I want to ask you
anyway. You--you also wrote, ``I wonder whether achieving that
goal is possible in all, or even in most, cases, and I wonder
whether, by ignoring our differences as women and men of color,
we do a disservice both to the law and to society.''
So the concern I have about the statement is it's
indicating that you believe judges should, and must, take into
account gender, ethnic background, or other personal
preferences in their decision making process. Is that what you
meant? And I want to follow it up so I don't have to ask two
questions: how is being impartial a disservice to the law and
society? Isn't justice supposed to be blind?
Judge Sotomayor. No, I do not believe that judges should
use their personal feelings, beliefs, or value systems or make
their--to influence their outcomes, and neither do I believe
that they should consider the gender, race, or ethnicity of any
group that's before them. I absolutely do not believe that.
With respect to, yes, is the--is the goal of justice to be
impartial, that is the central role of a judge. It--the judge
is the impartial decision maker between parties who come before
them. My speech was on something else, but I have no quarrel
with the basic principles that you have asked me to recognize.
Senator Grassley. Okay.
Judge Sotomayor. Now, no quarrel sounds equivocal. They--I
do believe in those things absolutely, and that's what I have
proven I do as a judge.
Senator Grassley. Okay.
Then the last one on this point of another remark you made.
You also stated that you ``further accept that our experiences
as women and people of color affect our decisions''. And then,
further, ``that personal experiences affect the facts that
judges choose to see,'' and that, further, ``there will be some
(differences in my judging) based on my gender and Latina
heritage.''
Do you believe that it is ever appropriate for judges to
allow their own identity/politics to influence their judging?
Judge Sotomayor. No, sir. Absolutely not.
Senator Grassley. Okay.
Then I want to move on to another area. This question comes
from your 1992 Senate questionnaire. You wrote in response to a
question about judicial activism that ``intrusions by a judge
upon the functions of other branches of government should only
be done as a last resort and limitedly''. Is this still your
position? And let me follow up: when would such an intrusion be
justified? For example, what is an example of last resort? What
is an example of limited--``limitedly'' ?
Judge Sotomayor. The answer is, judges and--and the manner
in which that question was responded to was, to the extent that
there has been a violation of the Constitution in whatever
manner of court identifies in a particular case, it has to try
to remedy that situation in the most narrow way in order not to
intrude on the functions of other branches or actors in the
process.
The case that I--was discussed in my history has been the
Doe case, in which I joined the panel decision where the
District Court had invalidated a statute that found
unconstitutional a statute that the legislator--legislature had
passed on national security letters. Our panel reviewed that
situation and attempted to discern, and did discern, Congress'
intent to be that despite a--isolation provisions that might
have to be narrowly construed to survive constitutional review,
it held that the other provisions of the Act were
constitutional.
So the vast majority, contrary to what the District Court
did--and I'm not suggesting it was intending to violate what
I'm describing, but the court took a different view than the
Circuit did--we upheld the statute in large measure. To the
extent that we thought there were, and found that there were
two provisions that were unconstitutional, we narrowly
construed them in order to assist in effecting Congress'
intent. That's what I talked about ``limitedly'' in that
answer.
Senator Grassley. Okay.
A little bit along the same line, in your Law Review
articles you wrote that, ``Our society would be straitjacketed
were not the courts, with the able assistance of the lawyers,
constantly overhauling''--and I don't know whether that's your
emphasis or mine, but I've got it underlined--``the law and
adapt''--maybe I'd better start over again.
``Our society would be straitjacketed were it not--were not
the courts, with the able assistance of the lawyers, constantly
overhauling the law and adapting it to the realities of ever-
changing social, industrial, and political changes.''
The explanation of the statement from you. I think you're
saying that judges can twist the law regardless of what the
legislature, the elected branch of government, has enacted into
law. It's kind of my interpretation of that. Obviously I think
you're going to tell me you don't mean that, but at least you
know where I'm coming from.
Judge Sotomayor. No. That interpretation was clearly not my
intent, and if--I don't actually remember those particular
words, but I do remember the speech. I'm assuming you're
talking about returning majesty to the law. And there I was
talking about a broader set of questions, which was how to
bring the public's respect back to the function of judges.
And I was talking about--that judges--that lawyers have an
obligation to explain to the public the reasons why what seems
unpredictable in the law has reasons, and I mentioned in that
speech that one of the big reasons is that Congress makes new
laws. That was the very first reason I discussed. And also that
there's new technology, there's new developments in society,
and what lawyers do is come in and talk to you about, okay,
we've got these laws, how do you apply them to this new
situation?
And what judges do--and that's why I was talking about the
assistance of judges of lawyers--is what you do, is you look at
the court's precedent, you look at what a statute says and you
try to understand the principles that are at issue and apply
them to what the society is doing, and that was the focus of my
speech, which was, talk to the public about the process. Don't
feed into their cynicism that judges are activists, that judges
are making law. Work at explaining to the--to the public what
the process is. I also talk to--part of my speech is what
judges can do to help improve respect of the public in the
legal process.
Senator Grassley. So the use of the word ``overhaul'' does
not in any way--``overhaul the law''----
Judge Sotomayor. Right.
Senator Grassley.--does not in any way imply usurpation of
legislative power by the courts?
Judge Sotomayor. No. And if you look at what I was talking
about, it was, the society develops.
Senator Grassley. Yeah.
Judge Sotomayor. We are not, today, what we were 100 years
ago in terms of technology, medicine, so many different areas.
There are new situations that arise and new facts that courts
look at. You apply the law to those situations, but that is the
process of judging which is sort of trying to figure out, what
does the law say about a set of facts that may not have been
imagined at the time of the founding of the Constitution, but
it's what the judge is facing then: how do you apply it to
that?
Senator Grassley. Yeah.
I want to go back to Didden based upon my opportunity to
reflect on some things you said yesterday. The time limit to
file a case in Didden was 3 years. Mr. Didden was approached
for what he classified as extortion in November 2003. Two
months later, in January of 2004, he filed his lawsuit. But
under your ruling, Mr. Didden was required to file his lawsuit
in July 2002, close to a year and a half before he was actually
extorted. So that doesn't make sense to require someone to file
a lawsuit on a perceived chance that an order might occur.
You also testified that the Supreme Court's Kelo decision
was not relevant to the Didden holding, but your opinion, in
cursory fashion, which is a problem that we addressed
yesterday, states that if there was no Statute of Limitations
issue, Kelo would have permitted Mr. Didden's property to be
taken.
It's hard to believe that an individual's property can be
seized when he refuses to be extorted without any
constitutional violation taking place. It's even harder to
believe that, under these circumstances, Mr. Didden--Mr. Didden
did not deserve his day in court or at least some additional
legal analysis.
Could you please explain how Mr. Didden could have filed
his lawsuit July 2002 before he was extorted in November 2003?
And also please explain why a July 2002 filing would not have
been dismissed because there was no proof that Mr. Didden had
suffered an injury, only an allegation that he might be injured
in the future.
Judge Sotomayor. The basis of Mr. Didden's lawsuit was, the
State can't take my property and give it to a private
developer, and--because that is not consistent with the Takings
Clause of the Constitution.
To the extent he knew the State--and there's no dispute
about this--that the State had found a public use for his
property, that it had a public purpose, that it had an
agreement with a private developer to let that developer take
the property, he knew that he was injured because his basic
argument was, the State can't do this. It can't take my
property and give it to a private developer.
The Supreme Court, in Kelo, addressed that question and
said under certain circumstances the State can do that if it's
for a public use and a public purpose. And so his lawsuit
essentially addressing that question came 5 years after he knew
what the State was doing. The issue of extortion was a question
of whether the private developer, in setting a lawsuit with
them, was engaging in extortion, and extortion is an unlawful
asking of money with no basis. But the private developer had a
basis. He had an agreement with the State. And so that is a
different issue than the timeliness of Mr. Didden's complaint.
Chairman Leahy. Thank you.
Chairman Leahy. Senator Cardin? We'll recognize Senator
Cardin. And then for those who have to plan, we will then
recess until 9:30 tomorrow morning.
Senator Cardin.
Senator Cardin. Well, Judge, let me first say that since
this will be my last time in this hearing to address you, to
say this has been my first confirmation hearing for a--Supreme
Court Justice. You have set a very high standard for me and for
those I might have to consider, because there's always a
possibility of future vacancies on the Supreme Court. As for
responding to our questions, being very open with us, and I
think really demonstrating the type of respect for the process
that has really shown dignity to you and to our committee, I
thank you for that.
I thanked you in the beginning for your willingness to
serve the public as a prosecutor and as a judge, and now
willing to take on this really incredible responsibility. I
just really want to emphasize that again. I don't know if you
thought when you were being considered for this what you would
have to go through as far as the appearance before the
Judiciary Committee, but it gets better after our hearings, I
believe.
So let me ask you one or two questions, if I might. I want
to follow up on Senator Kohl's question on the selection of
cases under certiorari. As has been pointed out earlier, maybe
1 percent of the cases that are petitioned to the Supreme Court
actually recieve an opinion.
Now, Senator Kohl asked you what standards you would use in
choosing cases and one factor I believe is important to look at
is the impact that a Supreme Court case can have on society.
I'm going to refer to one of your cases, the Boykin case, which
was the housing case where you allowed that borrower to go
forward, African-American, on a discrimination issue. And we've
seen throughout history discrimination against minorities in
housing, with red-lining and predatory lending. It led to the
Fair Housing Act enacted by Congress.
The Supreme Court has long recognized Title 7 and 8 of the
Federal Housing Act as part of the coordinated scheme of the
Federal civil rights laws enacted to end discrimination. But
there are still major challenges that are out there. Predatory
lending still takes place. It's happened during this housing
crisis with the subprime mortgage market targeted toward
minority communities.
I say that in relationship to the Boykin case, which I
agreed with your conclusion that it not only could affect the
litigants that were before you, but could have an impact on
industry practice if, in fact, there was discrimination and the
case was decided by your court.
And the same thing is true in the Supreme Court, more so in
the Supreme Court. It is the highest judgment of our land. And
yes, you have to be mindful when you take a case on cert as to
the impact it will have on the litigants. Certainly you have to
take into consideration if there's been different, inconsistent
rulings in the different Circuits.
But it seems to me that one of the standards I would hope
you would use in choosing cases is the importance of deciding
that particular case for the impact it can have on a broader
group of people in our Nation, whether it's a housing case that
could affect communities' ability to get fair access to
mortgages for home ownership, or whether it's a case that could
have an impact on a class of people, on environmental or
economic issues. And I just would like to ask you whether this,
in fact, is a reasonable request as you consider certiorari
requests, that one of the factors that is considered is the
impact it has on the community at large.
Judge Sotomayor. As I indicated earlier, we don't make
policy choices. That means that I would think it inappropriate
for a court to choose a case because--or a court--a judge to
choose a case based on some sense of, I want this result on
society. A judge takes a case to decide a legal issue,
understanding its importance to an area of law and to arguments
that parties are making about why it's important.
The question of--of impact is different than what a judge
looks at, which is what's the state of the law and this
question, and how--and what clarity is needed, and other
factors. But as I said, there's a subtle but important
difference in separating out and making choices based on policy
and how you would like an issue to come out than a question
that a judge looks at in terms of assessing the time at which a
legal argument should be addressed.
Senator Cardin. And I respect that difference and I don't
want you to be taking a case to try to make policy. But I do
think the--need for clarity for the community as to what is
appropriate conduct well beyond the litigants of a particular
case is a factor where clarification is needed and should weigh
heavily on whether the court takes that type of case or not.
Judge Sotomayor. There's just no one factor that controls
the choice where you say, I'm going to look at every case this
way. As I said, judges in--in--well, I shouldn't talk because I
haven't--I'm not there.
Senator Cardin. All right.
Judge Sotomayor. But my understanding of the process is
that it's not based on those policy implications of an outcome.
Senator Cardin. Uh-huh.
Judge Sotomayor. It's based on a different question than
that.
Senator Cardin. Well, let me conclude on one other case
that you ruled on where I also agree with your decision, and
that's in Ford v. McGinnis, where you wrote a unanimous panel
opinion overturning a District Court summary judgment, finding
in favor of the Muslim inmate who was denied, by prison
officials, access to his religious meals marking the end of
Ramadan. You held that the inmate's fundamental rights were
violated and that the opinions of the Department of Corrections
and religious authorities cannot trump the plaintiff's sincere
and religious beliefs.
Religious Freedom is one of the basic principles in our
Constitution. As I said in my opening comments, it was one of
the reasons my grandparents came to America. The freedom of
religion expression is truly a fundamental American right.
Please share with us your philosophy as to--maybe that's the
wrong use of terms, but the importance of that provision in
that Constitution and how you would go about dealing with cases
that could affect this fundamental right in our Constitution.
Judge Sotomayor. I--I don't mean to be funny, but the court
has held that it's fundamental in the sense of incorporation
against the States.
[Laughter.]
Judge Sotomayor. But it is a very important and central
part of our democratic society that we do give freedom of
religion, of practice of religion, that the Constitution
restricts the--the State from establishing a religion, and that
we have freedom of expression and speech as well.
Those freedoms are central to our Constitution. The four
cases, others that I have rendered in this area, recognize the
importance of that in terms of one's consideration of actions
that are being taken to restrict it in a particular
circumstance. Speaking further is difficult to do, again,
because of the role of a judge. To say it's important, that
it's fundamental, that it's legal in common meaning, is always
looked at in the context of a particular case. What's the State
doing?
In the Ford case that you just mentioned, the question
there before the court was, did the District Court err in
considering whether or not the religious belief that this
prisoner had was consistent with the established traditional
interpretation of a meal at issue? Okay.
And what I was doing was applying very important Supreme
Court precedent that said it's the subjective belief of the
individual. Is it really motivated by a religious belief?
That's one of the reasons we recognize conscientious objectors,
because we're asking a court not to look at whether this is
orthodox or not, but to look at the sincerity of the
individual's religious belief and then look at what the State
is doing in light of that. So that was what the issue was in
Ford.
Senator Cardin. Well, thank you for that answer. Again,
thank you very much for the manner in which you have responded
to our questions.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Thank you very much, Senator
Cardin.
As I noted earlier, we will now recess until 9:30 tomorrow
morning. I wish you all a pleasant evening. Thank you.
[Whereupon, at 5:50 p.m. the Committee was recessed.]
CONTINUATION OF THE NOMINATION OF HON. SONIA SOTOMAYOR, TO BE AN
ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES
----------
THURSDAY, JULY 16, 2009
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:33 a.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kohl, Feinstein, Feingold,
Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman,
Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham,
Cornyn, and Coburn.
Chairman Leahy. Judge, thank you. Judge Sotomayor, welcome
back to the Committee for a fourth day. If this seems long, it
is a day more than either Chief Justice Roberts or Justice
Alito was called upon to testify. But you seem to have
weathered it well, and I hope the Senators have, too.
Yesterday we completed the extended first round of
questions, and an additional eight Senators got approximately
halfway through a follow-up round. This morning we can continue
and hopefully conclude.
Senator Kyl is recognized next for 20 minutes, or as I say
with hope springing eternal--I keep saying ``up to 20
minutes.'' Nobody is required to use the full 20 minutes, but I
would hasten to add, everybody is certainly entitled to.
Senator Kyl.
Senator Kyl. Mr. Chairman, before I begin, for those who
are watching this on television, I would just note that I don't
think we put Judge Sotomayor on the hot seat with our
questions, but we certainly did with the temperature in this
room yesterday, and for that I apologize. And I note that it
could get a little steamy this morning, too. I know it is cold
back there, but it is not at all cool where we are.
Chairman Leahy. If I could respond----
Senator Kyl. If there is ever a question about Judge
Sotomayor's stamina in a very hot room, that question has been
dispelled without any doubt whatsoever.
Chairman Leahy. If I might--and I will ask them to set the
clock back to the 20 minutes so this does not go into your
time--it is really an interesting thing, because anybody who
has gone up where the press are, it is like an icebox up there.
And I am hoping we can get this--but at least the microphone is
working. I want to thank Senator Sessions for offering me his
microphone yesterday, but that did not work. And I want to
thank Senator Franken for letting me use his.
So if we start the clock back over so I do not take this
out of Senator Kyl's time, Senator Kyl, please go ahead, sir.
Senator Kyl. Thank you, and good morning, Judge.
Judge Sotomayor. Good morning.
Senator Kyl. In response to one of Senator Sessions'
questions on Tuesday about the Ricci case, you stated that your
actions in the case were controlled by established Supreme
Court precedent. You also said that a variety of different
judges on the appellate court were looking at the case in light
of established Supreme Court and Second Circuit precedent. And
you said that the Supreme Court was the only body that had the
discretion and the power to decide how these tough issues
should be decided. Those are all quotations from you.
Now, I have carefully reviewed the decision, and I think
the reality is different. No Supreme Court case had decided
whether rejecting an employment test because of its racial
results would violate the civil rights laws. Neither the
Supreme Court's majority in Ricci nor the four dissenting
judges discussed or even cited any cases that addressed the
question. In fact, the Court in its opinion even noted--and I
am quoting here--that ``this action presents two provisions of
Title VII to be interpreted and reconciled with few, if any,
precedents in the court of appeals discussing the issue.''
In other words, not only did the Supreme Court not identify
any Supreme Court cases that were on point; it found few, if
any, lower court opinions that even addressed the issue.
Isn't it true that you were incorrect in your earlier
statement that you were bound by established Supreme Court and
Second Circuit precedent when you voted each time to reject the
firefighters' civil rights complaint?
STATEMENT OF HON. SONIA SOTOMAYOR, TO BE AN ASSOCIATE JUSTICE
OF THE SUPREME COURT OF THE UNITED STATES
Judge Sotomayor. Senator, I was--let me place the Ricci
decision back in context. The issue was whether or not
employees who were a member of a disparately impacted group had
a right under existing precedent to bring a lawsuit. Did they
have a right to bring a lawsuit on the basis of prima facie
case and what would that consist of?
That was established Second Circuit precedent and had been,
at least up to that point, concluded from Supreme Court
precedents describing the initial burden that employees had.
That was----
Senator Kyl. Well, are you speaking here--you said had the
right to bring the lawsuit. It is not a question of standing.
There was a question of summary judgment.
Judge Sotomayor. Exactly. Exactly, which is, when you speak
about a right to bring a lawsuit, I mean what's the minimum
amount of good-faith evidence do they have to actually file the
complaint. And established precedent said you can make out, an
employee, a prima facie case of a violation of Title VII under
just merely by--not ``merely.'' That's denigrating it. By
showing a disparate impact.
Then the city was faced with the choice of, OK, we're now
facing two claims, one----
Senator Kyl. If I could just interrupt, we only have 20
minutes here, and I am aware of the facts of the case. I know
what the claims were. The question I asked was very simple. You
said that you were bound by Supreme Court and Second Circuit
precedent. What was it? There is no Supreme Court precedent,
and as the Court itself noted, they could find few, if any,
Second Circuit precedents.
Judge Sotomayor. The question was the precedent that
existed and whether, viewing it, one would view this as the
city discriminating on the basis of race or the city concluding
that because it was unsure that its test actually avoided
disparate impact but still tested for necessary qualifications,
was it discriminating on the basis of race by not certifying
the test?
Senator Kyl. So you disagree with the Supreme Court's
characterization of the precedents available to decide the
case?
Judge Sotomayor. It's not that I disagree. The question was
a more focused one that the Court was looking at, which was
saying--not more focused. It was a different look. It was
saying, OK, you have got these precedents. It says employees
can sue the city. The city is now facing liability. It is
unsure whether it can defeat that liability. And so it decides
not to certify the test and see if it could come up with one
that would still measure the necessary qualifications----
Senator Kyl. Let me interrupt again because you are not
getting to the point of my question, and I know as a good
judge, if I were arguing a case before you, you would say,
``That is all fine and dandy, counsel, but answer my
question.''
Isn't it true that--two things--first, the result of your
decision was to grant summary judgment against these parties?
In other words, it wasn't just a question of whether they had
the right to sue. You actually granted a summary judgment
against the parties. And, second, that there was no Supreme
Court precedent that required that result? And I am not sure
what the Second Circuit precedent is. The Supreme Court said
``few, if any.'' And I don't know what the precedent would be.
I am not necessarily going to ask you to cite the case, but was
there a case? And if so, what is it?
Judge Sotomayor. It was the ones that we discussed
yesterday, the Bushey line of cases that talked about the prima
facie case and the obligations of the city in terms of
defending lawsuits claiming disparate impact. And so the
question then became: How do you view the city's action? Was
it--and that's what the district court had done in its 78-page
opinion to say you have got a city facing liability----
Senator Kyl. All right. So you contend that there was
Second Circuit precedent. Now, on the en banc review, of
course, the question there is different because you are not
bound by any three-judge panel decision in your circuit. So
what precedent would have bound--and yet you took the same
position in the en banc review.
For those who are not familiar, a three-judge court decides
the case in the first instance. In some situations, if the case
is important enough, the other judges on the circuit--there may
be 9 or 10 or 20; I think in the Ninth Circuit there are 28
judges in the circuit. And you can request an en banc review.
The entire circuit would sit. And in that case, of course, they
are not bound by a three-judge decision because it is the
entire circuit sitting of 10 or 12 or 20 judges.
So what precedent then would have bound the court in the en
banc review?
Judge Sotomayor. The panel acted in accordance with its
views by setting forth and incorporating the district court's
analysis of the case. Those who disagreed with the opinion made
their arguments. Those who agreed that en banc certification
wasn't necessary voted their way, and the majority of the court
decided not to hear the case en banc.
I can't speak for why the others did or did not take the
positions they did. Some of them issued opinions. Others joined
opinions.
Senator Kyl. But you felt you were bound by precedent?
Judge Sotomayor. That was what we did in terms of the
decision, which was to accept the--not accept but incorporate
the district court's decision analyzing the case and saying we
agreed with it.
Senator Kyl. Understood. But the district court decision is
not binding on the circuit court, and the en banc review means
that the court should look at it in light of precedents that
are stronger than a three-judge decision. So I am still baffled
as to what precedent you are speaking of?
Judge Sotomayor. Perhaps it is just one bit of background
needs to be explained. When a court incorporates, as we did in
a per curiam, a district court decision below, it does become
the court's precedent. And, in fact, when I----
Senator Kyl. The three judges?
Judge Sotomayor. Yes, but when I was on the district court,
I issued also a lengthy decision on an issue, a constitutional
issue, a direct constitutional issue, that the circuit had not
addressed and very few other courts had addressed on the
question of whether AEDPA's statute of limitations on habeas
were----
Senator Kyl. Okay. Excuse me. I apologize for interrupting,
but I have now used half of my time, and you will not
acknowledge that even though the Supreme Court said there was
no precedent, even though the district court judgment and a
three-judge panel judgment cannot be considered precedent
binding the en banc panel of the court, you still insist that
somehow there was precedent there that you were bound by.
Judge Sotomayor. As I explained, when the circuit court
incorporated the district court's opinion, that became the
court's holding.
Senator Kyl. Of course.
Judge Sotomayor. So it did become circuit holding. With
respect to----
Senator Kyl. By three judges.
Judge Sotomayor. With respect--yes. I'm sorry. With respect
to the question of precedent, it must be remembered that what
the Supreme Court did in Ricci was say: There isn't much law on
how to approach this. Should we adopt a standard different than
the circuit did? Because it is a question that we must decide,
how to approach this issue to ensure that two provisions of
Title VII are consistent with each other.
That argument of adopting a different test was not the one
that was raised before us, but that was raised clearly before
the Supreme Court. And so that approach is different than
saying that the outcome that we came to was not based on our
understanding of what it made out a prima facie case.
Senator Kyl. Well, if it is a matter of first impression,
do judges on the Second Circuit typically dispose of important
cases of first impression by a summary, one-paragraph order,
per curiam opinion?
Judge Sotomayor. Actually, they did in one case I handled
when I was a district court judge.
Senator Kyl. Would that be typical?
Judge Sotomayor. I don't know how you define ``typical,''
but if the district court opinion in the judgment of the panel
is adequate and fulsome and persuasive, they do. In my
Rodriguez v. Artuz case, when I was at district court, on the
constitutionality of an act by Congress with respect to the
Suspension Clause of the habeas provision, the court did it in
less than a paragraph. They just incorporated my decision as
the law of the circuit or the holding of the circuit.
Senator Kyl. Well, let me quote from Judge Cabranes'
dissent. He said, ``The use of per curiam opinions of this
sort, adopting in full the reasoning of a district court
without further elaboration, is normally reserved for cases
that present straightforward questions that do not require
exploration or elaboration by the court of appeals. The
questions raised in this appeal cannot be classified as such as
they are indisputably complex and far from well settled.''
I guess legal analysts are simply going to have to research
and debate the question of whether or not the cases of first
impression or complex, important cases are ordinarily dispensed
of that way.
Let me just say that the implications--the reason I address
this is the implications of the decision are far-reaching. I
think we would all agree with that. It is an important
decision, and it can have far-reaching implications. Let me
tell you what three writers, in effect, said about it and get
your reaction to it.
Here is what the Supreme Court said in Ricci about the
decision, about the rule that your court endorsed. It said that
the rule that you endorsed--and I am quoting now--``allowing
employers to violate the disparate treatment prohibition based
on a mere good-faith fear of disparate impact liability would
encourage race-based action at the slightest hint of disparate
impact.'' This is the Supreme Court.
``Such a rule,'' it said, ``would amount to a de facto
quota system in which a focus on statistics could put undue
pressure on employers to make hiring decisions on the basis of
race. Even worse, an employer could discard test results or
other employment practices with the intent of obtaining the
employer's preferred racial balance.''
Your colleague on the Second Circuit Judge Cabranes said
that under the logic of your decision--and I quote again--
``municipal employers could reject the results of an employment
examination whenever those results failed to yield a desirable
racial outcome''--in other words, ``failed to satisfy a racial
quota.''
That is why the case is so important. I would imagine you
would hope that that result would not pertain. I guess I can
just ask you that, that you would not have rendered this
decision if you felt that that would be the result.
Judge Sotomayor. As I argued--argued. As I stated earlier,
the issue for us, no, we weren't endorsing that result. We were
just talking about what the Supreme Court recognized, which was
that there was a good-faith basis for the city to act. It set a
standard that was new, not argued before us below, and that set
forth how to balance those considerations. That is part of what
the Court does in the absence of a case previously decided that
sets forth the test. And what the Court there said is good
faith is not enough.
Senator Kyl. Understood.
Judge Sotomayor. Substantial evidence is what the city has
to rely on. Those are different types of questions.
Senator Kyl. Of course. And the point is you don't endorse
the result that either Judge Cabranes or the Supreme Court
predicted would occur had your decision remained in effect. I
am sure that you would hope that result would not pertain.
Judge Sotomayor. Yes. But I didn't--that wasn't the
question we were looking at. We were looking at a more narrow
question, which was: Could a city in good faith say we're
trying to comply with the law, we don't know what standard to
use, we have good faith for believing that we should not
certify?
Now the Supreme Court has made clear what standard they
should apply. Those are different issues.
Senator Kyl. Well, I am just quoting from the Supreme Court
about the rule that you endorsed in your decision. And, again,
it said, the Supreme Court said about your rule that, ``Such a
rule would amount to a de facto quota system in which a focus
on statistics could put undue pressure on employers to make
hiring decisions on the basis of race. Even worse, an employer
could disregard test results or other employment practices with
the intent of obtaining an employer's preferred racial
balance.''
I guess we both agree that that is not a good result.
Let me ask you about a comment you made about the dissent
in the case. A lot of legal commentators have noted that while
the basic decision was 5-4, all nine of the Justices disagreed
with your panel's decision to grant summary judgment, that all
nine of the judges believed that the court should have been--
that the district court should have found the facts in the case
that would allow it to apply a test. Your panel had one test.
The Supreme Court had a different test. The dissent had yet a
different test. But, in any case, whatever the test was, all
nine of the Justices believed that the lower court should have
heard the facts of the case before summary judgment was
granted.
I heard you to say that you disagreed with that assessment.
Do you agree that the way I stated it is essentially correct?
Judge Sotomayor. It's difficult because there were a lot of
opinions in that case, but the engagement among the judges was
varied on different levels. And the first engagement that the
dissent did with the majority was saying if you are going to
apply this new test, this new standard, then you should give
the circuit court an opportunity to evaluate the evidence----
Senator Kyl. Well, Judge, I have to interrupt you there.
The Court didn't say if you are going to apply a new standard
you need to send it back. All nine Justices said that summary
judgment was inappropriate, that the case should have been
decided on the facts. There were three different tests: the
test from your court, the test of the majority of the Supreme
Court, and the test of the dissent.
Irrespective of what test it was, they said that the case
should not have been decided on summary judgment. All nine
Justices agreed with that, did they not?
Judge Sotomayor. I don't believe that's how I read the
dissent. It may have to speak for itself, but I--Justice
Ginsburg took the position that the Second Circuit's panel
opinion should be affirmed, and she took it by saying that no
matter how you looked at this case, it should be affirmed. And
so I don't believe that--that was my conclusion reading the
dissent, but obviously it will speak for itself.
Senator Kyl. Well, it will, and I guess commentators can
opine on it. I could read commentary from people like Stuart
Taylor, for example, who have an opinion different from yours,
but let me ask you one final question in the minute and a half
that I have remaining.
I was struck by your response to a question that Senator
Hatch asked you about yet another speech that you gave in which
you made a distinction between the justice of a district court
and the justice of a circuit court, saying that the district
court provides justice for the parties, the circuit court
provides justice for society.
Now, for a couple of days here, you have testified to us
that you believe that not only do district and circuit courts
have to follow precedent but that the Supreme Court should
follow precedent. So it is striking to me that you would
suggest--and this goes back to another comment you made,
perhaps flippantly, about courts of appeals making law. But it
would lead one to believe that you think that the circuit court
has some higher calling to create precedent for society.
In all of my experience--you have Smith v. Jones in the
district court. The court says the way we read the law, Smith
wins. It goes to the court of appeals. The court has only one
job to decide: Does Smith win or does Jones win? It doesn't
matter what the effect of the case is on society. That is for
legislators to decide. You have one job. Who wins, Smith or
Jones, based on the law? And you decide, yes, the lower court
was right; Smith wins.
You are applying precedent and you are deciding the case
between those parties. You are not creating justice for society
except in the most indirect sense that any court that follows
precedent and follows the rule of law helps to build on this
country's reliance on the rule of law.
Judge Sotomayor. I think we are in full agreement. When
precedent is set, it is set--it follows the rule of law. And in
all of the speeches where I have discussed this issue, I have
described the differences between the two courts as one where
precedents are set, that the precedents have policy
ramifications, but not in the meaning that the legislature
gives to it.
The legislature gives it a meaning in terms of making law.
When I am using that term, it is very clear that I am talking
about having a holding, it becomes precedent, and it binds
other courts. You are following the rule of law when you are
doing that.
Senator Kyl. Mr. Chairman, I am over the time, but just a
final follow-up question, if I could.
You yourself noted that you have created precedent as a
district court judge. Both district courts and circuit courts
created precedent simply by deciding a case, but they are both
required to follow precedent. Isn't that correct?
Judge Sotomayor. Yes.
Chairman Leahy. Only because the Senator went over, I would
note the district court in that case did cite the Reeves case,
which is a year 2000 Supreme Court case, as precedent, and a
binding Second Circuit case, the Hayden case, as precedent. And
as the judge has noted, the per curiam decision incorporated
the district court decision.
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman. I
have great respect for Senator Kyl. I have worked with him, I
guess, for about 12 years now on a subcommittee of this
committee.
But I think there is a fundamental misreading of the
Supreme Court decision if I understand it. It is my
understanding that the court was 5-4, is that correct?
Judge Sotomayor. It was.
Senator Feinstein. And that the four dissenters indicated
that they would have reached the same conclusion as the Second
Circuit did, is that correct?
Judge Sotomayor. That was my understanding.
Senator Feinstein. Thank you. Let me clear one thing up. I
am not a lawyer and I have had a lot of people ask me,
particularly from the west coast who are watching this. What is
per curiam? Would you please in common, everyday English
explain what through the court means?
Judge Sotomayor. It is essentially a unanimous opinion
where the court is taking an Act where it is not saying more
than either incorporating a decision by the court below,
because it is not adding anything to it.
Senator Feinstein. Right.
Judge Sotomayor. In some cases, it is when there is--Judge
Cabranes in his dissent pointed out in some cases it is simply
used to denote that an issue is so clear and unambiguous that
we are just going to--the law.
It can be used in a variety of different ways, but it is
generally where you are doing something fairly--in a very
cursory fashion either because a District Court judge has done
a thorough job----
Senator Feinstein. Which was the case in this case with a
very voluminous opinion that I believe was over 50 pages. Is
that correct?
Judge Sotomayor. I keep saying 78 because that is what I--
--
Senator Feinstein. Over 50.
Judge Sotomayor. And as I said, my circuit did that in a
case where I addressed as a District Court judge a case of
first impression on a direct constitutional issue, the
suspension clause. Or it can have--one of the meanings can be
that given by Judge Cabranes.
Senator Feinstein. Right. Now, my understanding also is
that there is precedent in other courts. I am looking at a
decision, Oakley v. City of Memphis written by the Circuit
Court. Essentially what it does is uphold the lower court that
did exactly the same thing. Are you familiar with that case?
Judge Sotomayor. I am.
Senator Feinstein. It is an unpublished opinion, I believe.
Is that correct?
Judge Sotomayor. Yes.
Senator Feinstein. And it was a racially mixed group of
male and female lieutenants. They took the test, the results
came in, the test was canceled and the court upheld the
cancellation.
Judge Sotomayor. Yes.
Senator Feinstein. So your case is not starkly out of the
mainstream. The reason I say this is going back to my days as
mayor, particularly in the 1980's when there were many courts
and many decisions involving both our police and fire
departments. It was a very controversial area of the law.
But the point I wanted to make is there is precedent and
this is certainly one of them.
Judge Sotomayor. I would agree that it was precedent. I
will not choose to quarrel with the Supreme Court's description
of the situation.
Senator Feinstein. Right. I am not asking you to. Now, many
have made comments regarding your wise Latina comment. I would
just like to take a minute to put your comments in the context
of the experiences of women.
This country is built on very great accomplishments. We
forged a new country, we broke away from the British, we wrote
documents that have stood the test of time, the Declaration of
Independence, the Constitution, the Bill of Rights. But we also
have a history of slavery, of segregated schools, of employment
discrimination, of hate crimes and unspoken prejudices that can
make it very hard for individuals to be treated fairly or even
to believe that they can do well in this society.
So I understand empowerment and the role that it plays.
Everything has been hard fought. We as women did not have the
right to vote until 1920 and that was after a tremendous battle
waged by a group of very brave women called suffragettes.
We graduated law school in 1979. There had never been women
on the Supreme Court. Today, women represent 50.7 percent of
the population, 48 percent of law school graduates and 30
percent of American lawyers. But there are only 17 women
Senators and only one woman currently serving on the Supreme
Court and we still make only $.78 on the dollar that a man
makes.
So we are making progress, but we are not there yet and we
should not lose sight of that.
My question is, as you have seen this, and you must have
seen how widely broadcast this is, that you become an instant
role model for women. How do you look at this, your appointment
to the court affecting empowerment for women?
And I'd be very interested in any comments you might make,
and this has nothing to do with the law.
Judge Sotomayor. I chose the law because it is more suited
to that part of me that has never sought the kind of attention
that other public figures get.
When I was in law school, some of my friends thought I
would go into the political arena not knowing that what I
sought was more the life of a judge, the thinking involved in
that and the process of the rule of law.
My career as a judge has shown me that regardless of what
my desires were, that my life, what I have accomplished, does
serve as an inspiration for others. It is a sort of awesome
sense of responsibility. It is one of the reasons that I do so
many activities with people in the community. Not just Latinas,
but all groups because I understand that it is women, it is
Latinas, it is immigrants.
It is all kinds and all backgrounds. Each one of us faces
challenges in their life. Whether you were born rich or poor,
of any color or background, life's challenges place hurdles
every day.
One of the wonderful parts of the courage of America is
that we overcome them. I think that people have taken that
sense that on some levels I have done some of that at various
stages in my life.
So for me, I understand my responsibility. That is why I
understand and have tried as much as I can to reach out to all
different kinds of groups and to make myself available as much
as I can. Often I have to say no, otherwise I'd never work. But
I meet my responsibilities and work very hard at my job, but I
also know I have a responsibility to reach out.
Senator Feinstein. Well, for whatever it is worth, I think
that you are a walking, talking example of the best part of the
United States of America.
I just want to say how very proud I am that you are here
today and it is my belief that you are going to be a great
Supreme Court Justice. I just wanted to say that to you
directly and publicly. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Senator Graham.
Chairman Leahy. Senator Graham.
Senator Graham. Thank you, Mr. Chairman. Something I would
like to say to you directly and publicly and with admiration
for your life story is that a lot of the wrongs that have been
mentioned, some have been righted, some have yet to come.
Judge, I hope you understand the difference between petitioning
one's government and having a say in the electoral process and
voting for people that, if you do not like, you can get rid of
and the difference of society being changed by nine unelected
people who have a lifetime appointment.
Do you understand the difference in how those two systems
work?
Judge Sotomayor. Absolutely, sir. I understand the
Constitution.
Senator Graham. The one thing I can tell you--and this will
probably be the last time we get to talk in this fashion. I
hope to have a chance to get to know you better and we will see
what your future holds, but I think it is going to be pretty
bright.
The bottom line is one of the problems the court has now is
that Mr. Ricci has a story to tell, too. There are all kinds of
stories to tell in this country and the court has, in the
opinion of many of us, gone into the business of societal
change, not based on the plain language of the Constitution,
but based on motivations that can never be checked at the
ballot box.
Brown v. Board of Education is instructive in the sense
that the court pushed the country to do something politicians
were not brave enough to do. Certainly, we are not brave enough
in my state. And if I had been elected as a Senator from South
Carolina in 1955, the year I was born, I would be amazed if I
would have had the courage of a Judge Johnson in the political
arena.
But the court went through an analysis that separate was
not equal. It had a basis in the Constitution, after fact-
finding, to reach a reasoned conclusion in the law and the
courage to implement that decision, and the society had the
wisdom to accept the court's opinion, even though it was
contentious and, literally, people died.
We are going to talk about some very difficult societal
changes that are percolating in America today, like who should
get married and what boundaries there are on the definition of
marriage, and who is best able or the most capable of making
those fundamental decisions.
The full faith and credit clause, in essence, says that
when a valid enactment of one state is entered into, the sister
states have to accept it. But there is a public policy
exception in the full faith and credit clause. Are you aware of
that?
Judge Sotomayor. I am, applied in different situations.
Senator Graham. Some states have different age limits for
marriage. Some states treat marriage differently than others,
and the courts deferred based on public policy.
The reason these speeches matter and the reasons elections
matter is because people now understand the role of the court
in modern society when it comes to social change. That is why
we fight so hard to put on the court people who see the world
like us. That is true from the left and that is true from the
right.
Let me give you an example of why that is important. We
have talked a lot about the Second Amendment, whether or not it
is a fundamental right. We all now agree it is an individual
right. Is that correct?
Judge Sotomayor. Correct.
Senator Graham. Well, that is groundbreaking precedent in
the sense that just until a few months ago or last year, I
guess, that was not the case. But it is today. It is the law of
the land, by the Supreme Court, the Second Amendment is an
individual right, and you acknowledge that. That is correct?
The Heller case.
Judge Sotomayor. That was the decision and it is what the
court has held, and so it is unquestionably an individual
right.
Senator Graham. But here is the next step for the court.
You will have to, if you get on the court, with your fellow
justices, sit down and discuss whether or not it is a
fundamental right to the point that it is incorporated through
the due process clause of the 14th Amendment and applied to
every state.
Is it not fair to say, Judge, that when you do that, not
only will you listen to your colleagues, you will read whatever
case law is available, you are going to come down based on what
you think America is all about?
Judge Sotomayor. No, sir.
Senator Graham. So what binds you when it comes to a
fundamental right?
Judge Sotomayor. The rule of law.
Senator Graham. Is not the rule of law, when it comes to
what you consider to be a fundamental right, your opinion as to
what is fundamental among all of us?
Judge Sotomayor. No. In fact, the question that you raise,
is it fundamental in the sense of the law.
Senator Graham. Right.
Judge Sotomayor. That is a legal term. It's very different
and it is important to remember that the Supreme Court's
precedent on the Second Amendment predated its more closely
developed----
Senator Graham. I hate to interrupt, but is there sort of a
legal cookbook that you can go to and say this is a fundamental
right, A, and B is not?
Judge Sotomayor. Well, there's not a cookbook, but there's
precedent that was established after the older precedent that
has talked and described that doctrine of incorporation. That's
a set of precedents that----
Senator Graham. Are you talking about the 1890 case?
Judge Sotomayor. Yes. Well, no. The 1890 case was the
Supreme Court's holding on this issue. But since that time,
there has been a number of number of decisions discussing the
incorporation doctrine, applying it to different provisions of
the Constitution.
Senator Graham. Is there any personal judgment to be relied
upon by a Supreme Court justice in deciding whether or not the
Second Amendment is a fundamental right?
Judge Sotomayor. Well, you hire judges for their judgment,
not their personal views or what their sense of what the
outcome should be. You hire your point judges for the purpose
of understanding whether they respect law, whether they respect
precedent and apply it in a----
Senator Graham. I do not doubt that you respect the law,
but you are going to be asked, along with eight other
colleagues, if you get on the court, to render a decision as to
whether or not the Second Amendment is a fundamental right
shared by the American people. There is no subjective judgment
there?
Judge Sotomayor. The issue will be controlled by the
court's analysis of that question in the case, fundamental as
defined by incorporation, in--likely will be looked at by the
court in a case that challenges a state regulation.
At that point, I would presume that the court will look at
its older precedent in the way it did in Heller, consider
whether it controls the issue or not. It will decide, even if
it controls it, whether it should be revisited under the
doctrine of stare decisis.
It could decide it doesn't control and that would be its
decision. It could decide it does control, but it should
revisit it. In revisiting it, it will look at a variety of
different factors, among them, have there been changes in
related areas of law that would counsel questioning this.
As I've indicated, there was a lot of law after the older
cases on incorporation. I suspect, but I don't know, because I
can't prejudge the issue, that the court will consider that
with all of the other arguments that the parties will make.
Senator Graham. Well, maybe I have got it wrong then. Maybe
I am off base here. Maybe you have got the seven the circuit
talking about the Heller case did not decide the issue of
whether it should be incorporated to the states, because it has
only dealt with the District of Columbia.
You have got the ninth circuit--and I never thought I would
live to hear myself say this--look at the ninth circuit. They
have a pretty good rationale as to why the Second Amendment
should be considered a fundamental right and they talked about
the longstanding relationship of the English man, and they
should have put woman, at least in South Carolina that would
have applied, to gun ownership.
They talked about it was this right to bear arms that led
to our independence. It was this right to bear arms that put
down a rebellion in this country. And they talked about who we
are as a people and our history as a people.
And, Judge, that is why the Supreme Court matters. I do
believe, at the end of the day, you are not going to find a law
book that tells you whether or not a fundamental right exists
vis-a-vis the Second Amendment, that you are going to have to
rely upon your view of America, who we are, how far we have
come and where we are going to go, and our relationship to gun
ownership. That is why these choices are so important.
And here is what I will say about you and you may not agree
with that, but I believe that is what you are going to do and I
believe that is what every other justice is going to do.
And here is what I will say about you. I do not know how
you are going to come out on that case, because I think,
fundamentally, Judge, you are able, after all these years of
being a judge, to embrace a right that you may not want for
yourself, to allow others to do things that are not comfortable
to you, but for the group, they are necessary.
That is my hope for you. That is what makes you, to me,
more acceptable as a judge and not an activist, because an
activist would be a judge who would be chomping at the bit to
use this wonderful opportunity to change America through the
Supreme Court by taking their view of life and imposing it on
the rest of us.
I think and believe, based on what I know about you so far,
that you are broad-minded enough to understand that America is
bigger than the Bronx, is bigger than South Carolina.
Now, during your time as an advocate, do you understand
identity politics? What is identity politics?
Judge Sotomayor. Politics based simply on a person's
characteristics, generally referred to either race or ethnicity
or gender, religion. It is politics based on----
Senator Graham. Do you embrace identity politics
personally?
Judge Sotomayor. Personally, I don't, as a judge, in any
way embrace it with respect to judging. As a person, I do
believe that certain groups have and should express their views
on whatever social issues may be out there.
But as I understand the word ``identity politics,'' it's
usually denigrated because it suggests that individuals are not
considering what's best for America, and that I don't believe
in.
I think that whatever a group advocates, obviously, it
advocates on behalf of its interests and what the group thinks
it needs, but I would never endorse a group advocating
something that was contrary to some basic constitutional right
as it was known at the time, although people advocate changes
in the law all the time.
Senator Graham. Do you believe that your speeches, properly
read, embrace identity politics?
Judge Sotomayor. I think my speeches embrace the concept
that I just described, which is, groups, you have interests
that you should seek to promote; what you're doing is important
in helping the community develop; participate, participate in
the process of your community; participate in the process of
helping to change the conditions you live in.
I don't describe it as identity politics, because it's not
that I'm advocating that groups do something illegal.
Senator Graham. Well, Judge, to be honest with you, your
record as a judge has not been radical, by any means. It is, to
me, left of center. But your speeches are disturbing,
particularly to conservatives, quite frankly, because they do
not talk about get involved, go to the ballot box, make sure
you understand that American can be whatever you would like it
to be, there is a place for all of us.
Those speeches, to me, suggested gender and racial
affiliations in a way that a lot of us wonder will you take
that line of thinking to the Supreme Court in these cases of
first precedent.
You have been very reassuring here today and throughout
this hearing that you are going to try to understand the
difference between judging and whatever political feelings you
have about groups or gender.
Now, when you were a lawyer, what was the mission statement
of the Puerto Rican Legal Defense Fund?
Judge Sotomayor. To promote the civil rights and equal
opportunity of Hispanics in the United States.
Senator Graham. During your time on the board, and you had
about every job a board member could have, is it a fair
statement to say that all of the cases embraced by this group
on abortion advocated the woman's right to choose and argued
against restrictions by state and Federal Government on
abortion rights?
Judge Sotomayor. I can't answer that question, because I
didn't review the briefs. I did know that the fund had a health
care----
Senator Graham. Judge?
Judge Sotomayor [continuing]. Docket that included
challenges to certain limitations on a woman's right to
terminate her pregnancy under certain circumstances.
Senator Graham. Judge, I may be wrong, but every case I
have seen by the Puerto Rican Legal Defense Fund advocated
against restrictions on abortion, advocated Federal taxpayer
funding of abortion for low income women.
Across the board, when it came to the death penalty, it
advocates against the death penalty. When it came to employment
law, it advocates against testing and for quotas.
That is just the record of this organization. The point I
am trying to make is that whether or not you advocate those
positions and how you will judge can be two different things. I
have not seen, in your judging, this advocate that I saw or
this board member.
But when it came to the death penalty, you filed a
memorandum with the Puerto Rican Legal Defense Fund in 1981,
and I would like to submit this to the record, where you signed
this memorandum and you basically said that the death penalty
should not be allowed in America because it created a racial
bias and it was undue burden on the perpetrator and their
family.
What led you to that conclusion in 1981?
Judge Sotomayor. The question in 1991----
Senator Graham. 1981.
Judge Sotomayor. 1981, I misspoke about the year, was an
advocacy by the fund, taking a position on whether legislation
by the State of New York outlawing or permitting the death
penalty should be adopted by the State.
I thank you for recognizing that my decisions have not
shown me to be an advocate on behalf of any group. That is a
different, dramatically different question than whether I
follow the law. And in the one case I had as a district court
judge, I followed the law completely.
Senator Graham. The only reason I mention this is when
Alito and Roberts were before this panel, they were asked about
memos they wrote in the Reagan administration, clients they
represented, a lot to try to suggest that if you wrote a memo
about this area of the law to your boss, Ronald Reagan, you
must not be fit to judge.
Well, they were able to explain the difference between
being a lawyer in the Reagan administration and being a judge
and, to the credit of many of my Democratic colleagues, they
understood that.
I am just trying to make the point that when you are an
advocate, when you were on this board, the board took positions
that I think are left of center and you have every right to do
it.
Have you ever known a low income Latina woman who was
devoutly pro life?
Judge Sotomayor. Yes.
Senator Graham. Have you ever known a low income Latino
family who supported the death penalty?
Judge Sotomayor. Yes.
Senator Graham. So the point is there are many points of
view within groups based on income. You have, I think,
consistently, as an advocate, took a point of view that was
left of center. You have, as a judge, been generally in the
mainstream.
The Ricci case, you missed one of the biggest issues in the
country or you took a pass. I do not know what it is. But I am
going to say this, that as Senator Feinstein said, you have
come a long way. You have worked very hard. You have earned the
respect of Ken Starr, and I would like to put his statement in
the record, and you have said some things that just bugged the
hell out of me.
The last question on the wise Latina woman comment. To
those who may be bothered by that, what do you say?
Judge Sotomayor. I regret that I have offended some people.
I believe that my life demonstrates that that was not my intent
to leave the impression that some have taken from my words.
Senator Graham. You know what, Judge? I agree with you.
Good luck.
Chairman Leahy. Thank you. Senator Durbin has actually
responded to my so far vain request that Senators may want to
pass on the basis that all questions may have been asked, not
everybody has asked them.
But Senator Klobuchar, yesterday, had some very serious and
succinct areas that she was asking. I know time ran out and I
would like to yield to Senator Klobuchar, because she may want
to follow on those.
Senator Klobuchar. Thank you very much, Mr. Chair, and
thank you again, Judge. I think they have turned the air
conditioning on, so this is good. I just have two quick follow-
ups following Senator Graham's question.
The first is that the only death penalty case that I know
of--there may be another one that you ruled on--the Heatley
case, you, in fact, sustained the death penalty in that case.
Is that correct?
Judge Sotomayor. I sustained--well, I rejected the
challenges of the defendant that the application of the death
penalty to him was based on race, yes.
Senator Klobuchar. Okay. Thank you. And then, just the
second one, Senator Graham mentioned the issues of Justice
Roberts and the difference between an advocate and a judge. And
I just came across the quote that Justice Roberts gave about
his work during the Reagan administration, and he said, ``I can
give the commitment that I appreciate that my role as a judge
is different than my role as a staff lawyer for an
administration. As a judge, I have no agenda. I have a guide in
the Constitution and the laws and the precedents of the Court,
and those are what I would apply with an open mind after fully
and fairly considering the arguments and assessing the
considered views of my colleagues on the bench.''
Would you agree with that statement?
Judge Sotomayor. Wholeheartedly.
Senator Klobuchar. All right. Thank you.
There were some letters that have not yet been put on the
record, and they are quite a collection of letters. I
considered reading them all on the record but thought better of
that. So I thought I would ask the Chair if I could put these
letters on the record, and these are letters of support for you
from, first of all, the National Fraternal Order of Police in
support of your nomination, the Police Executive Research
Forum, the National Association of Black Law Enforcement
Executives, the National Latino Peace Officers Association, the
New York State Law Enforcement Council, the National District
Attorneys Association, the Association of Prosecuting
Attorneys, the National Association of Police Organizations,
the National Sheriffs Association, the Major City Chiefs
Association, the Detectives Endowment Association, and then
also a letter from 40 of your past colleagues in the Manhattan
D.A.'s Office, former district attorney colleagues. And all of
these groups have given you their support.
[The letters appear as a submission for the record.]
Senator Klobuchar. And I did want to note just two very
brief portions from the letter. The one from the Police
Executive Research Forum reads, ``Sonia Sotomayor went out of
her way to stand shoulder to shoulder with those of us in
public safety at a time when New York City needed strong,
tough, and fair prosecutors.''
And then also, the letter from your colleagues I found very
enlightening. It was much more personal. It said that, ``She
began as a rookie in 1979, working long hours, prosecuting an
enormous caseload of misdemeanors before judges managing
overwhelming dockets. Sonia so distinguished herself in this
challenging assignment that she was among the very first in her
starting class to be selected to handle felonies. She
prosecuted a wide variety of felony cases, including serving as
co-counsel at a notorious murder trial. She developed a
specialty in the investigation and prosecution of child
pornography cases. Throughout all of this, she impressed us as
one who was singularly determined in fighting crime and
violence, for Sonia's service as a prosecutor was a way to
bring order to the streets of a city she dearly loves. We are
proud to have served with Sonia Sotomayor. She solemnly adheres
to the rule of law and believes that it should be applied
equally and fairly to all Americans.''
``As a group,'' your former colleagues say, ``we have
different worldviews and political affiliations, but our
support for Sonia is entirely nonpartisan. And the fact that so
many of us have remained friends with Sonia over three decades
speaks well, we think, of her warmth and collegiality.''
A pretty nice letter.
In reading these letters from these law enforcement groups,
there was just one follow-up case that you had that I wanted to
allow you to enlighten the country about, and this is one that
former New York Police Detective Chris Montanino spoke about
recently in an article, and he spoke about a case you worked on
as district attorney. He talked about--it was a child
pornography case--how he had gone to various prosecutors to try
to get them interested in the case, and he could not get them
interested. And I have some guesses. Some of these cases, as
you know, can be very involved with a lot of evidence and
sometimes computer forensics and things like that. But he was
not able to interest them in taking on the case. But you were
the one that was willing to take on the case, and it led to the
prosecution of two perpetrators.
Could you talk a little bit about that case, why you think
others didn't and why you decided to take on the case?
Judge Sotomayor. Well, I can't speak to why others decided
to pass on the case. I can talk to you about my views at the
time.
The New York Court of Appeals had invalidated the New York
statute on child pornography on the ground of a constitutional
violation, Federal constitutional violation, that the statute
did not comport with the Federal Constitution.
The Supreme Court took that case directly from the court of
appeals, as is its right to review all issues of Federal
constitutional law, and reversed the New York Court of Appeals
and reinstated the statute.
My sense is because there were still so many open questions
about both the legality of the statute and the question of the
difficulty in proving the particular crime at issue that
involved two men who worked in a change of--chain of adult
bookstores in the then-Times Square area. Times Square has
changed dramatically since that time.
It was mostly circumstantial. We had some tapes, but their
knowledge of what those tapes contained, their intent to sell
and distribute child pornography involving children below a
certain age--it was a difficult, difficult legal and factual
case. But it was clear that it was a serious case. We're
talking about the distribution of films that show children who
were anywhere from 8 years old to 12 years old being explicitly
sexually abused. And it seemed to me that, regardless of the
outcome of the case, whether I secured the convictions or not,
whether it was held up on appeal or not, that the issues it
raised had to be presented in court because of the importance
of the crime.
And so I brought the prosecution. I had a co-counsel in
that case who was second-seating me in that case, meaning she
was assisting me. And the case took a while at trial because,
as I said, it was circumstantial.
The jury returned a verdict against both defendants. They
were sentenced quite severely, and the cases held up on appeal.
It was an enormously complicated case. I assisted in the appeal
because it was so complicated that one of the heads of the
Appeals Division of the New York County District Attorney's
Office had to become involved in it. But the convictions were
sustained.
And so the effort resulted in a conviction of two men who
were distributing films that had the vilest of sexual acts
portrayed against children.
Senator Klobuchar. And one last case I wanted to ask you
about, which the Chairman had briefly mentioned in his opening,
and it was a troubling case because it involved an elected
official. It was U.S. v. Giordano, and this case--it happened
when you were a judge, and it involved very troubling facts
with the mayor of Waterbury, Connecticut, in a variety of
crimes stemming from his repeated sexual abuse of a minor
daughter and a niece of a prostitute. And you wrote for the
majority in that case. There was actually a dissent from one of
your fellow judges on the Second Circuit, and you held in part
that the mayor could, in fact, be charged with the crime of
violating the young girl's civil rights under color of State
law. And I think--and I do not want to put words in your mouth,
but the reason you were able to use that theory is that you
noted how frequently the mayor reiterated to his young victims
that they would be trouble with law enforcement if they didn't
submit to what he wanted them to do.
Could you talk about how that case fits into your overall
approach to judging?
Judge Sotomayor. As I have indicated, the role of a judge
is to look at Congress' words in a statute and discern its
intent. And in cases that present new facts, you must take
existing precedents and apply the teachings of those precedents
to those new facts.
In the Giordano case, there had not been another situation
quite like this one. This was a mayor who, working through a
woman, secured sexual acts by very young girls that were taking
place in his office. And through the woman he was working with
and also through his own exhortations, ``Don't tell anybody,
you'll get into trouble,'' and the woman's exhortations to the
child, the person he was conspiring with, that they would get
in trouble with the police because the police wouldn't believe
them, they would believe him because he was a mayor, the
question for the court became: Is that acting under color of
State law? Is he using his office to promote this illegal
activity against these young girls?
The majority, viewing these facts, said yes, that's the
principles we discern from precedent about what the use of
State law means--of acting under State law means.
The dissent disagreed and it disagreed using its own
rationale about why the law should not be read that way. But
these are cases that rely upon an understanding both of what
the words say and how precedent has interpreted them, and
that's what the majority of the panel did in that case.
Senator Klobuchar. Thank you very much, and I think it has
been enlightening for people to hear about some of your views
on these criminal cases. And I would just like to ask one last
question, and it is the exact question that my friend and
colleague Senator Graham asked Chief Justice Roberts at his
confirmation hearing. And he said, ``What would you like
history to say about you when all is said and done? ''
Judge Sotomayor. I can't live my life to write history's
story. That will be the job of historians long after I'm gone.
Some of them start now, but long after I'm gone.
In the end, I hope it will say I'm a fair judge, that I was
a caring person, and that I lived my life serving my country.
Senator Klobuchar. I think you can't say much more than
that. Thank you very much, Judge.
Chairman Leahy. Thank you, Judge. I appreciate that. Thank
you, Senator Klobuchar.
Senator Cornyn, who, as I mentioned yesterday, is a former
Supreme Court Justice of Texas as well as former Attorney
General, valued member of this Committee, Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. Good morning,
Judge.
Judge Sotomayor. Good morning, Senator.
Senator Cornyn. Judge, when we met the first time, as I
believe I recounted earlier, I made a pledge to you that I
would do my best to make sure that you were treated
respectfully and this would be a fair process.
I just want to ask you up front, do you feel like you have
been given a chance to explain your record and your judicial
philosophy to the American people?
Judge Sotomayor. I have, sir, and every Senator on both
sides of the aisle that have made that promise to me have kept
it fully.
Senator Cornyn. And Judge, you know the test is not whether
Judge Sonia Sotomayor is intelligent. You are. The test is not
whether we like you. I think speaking personally, I think we
all do. The test is not even whether we admire you or respect
you, although we do admire you and respect what you have
accomplished.
The test is really what kind of Justice will you be if
confirmed to the Supreme Court of the United States? Will you
be one that adheres to a written Constitution and written laws
and respect the right of the people to make their laws to their
elected representatives, or will you pursue some other agenda?
Personal, political, ideological, that is something other than
enforcing the law? I think that is really the question.
Of course the purpose of these hearings as you have gone
through these tedious rounds of questioning is to allow us to
clear up any confusion about your record and about your
judicial philosophy. Yet so far I find there is still some
confusion.
For example, in 1996, you said the idea of a stable `Law'
was a public myth. This week you said that fidelity to the law
is your only concern. In 1996, you argued that indefiniteness
in the law was a good thing because it allowed judges to change
the law. Today you characterize that argument as being only
that ambiguity can exist and that it is Congress' job to change
the law.
In 2001, you said that innate physiological differences of
judges would or could impact their decisions. Yesterday you
characterized that argument as being only that innate
physiological differences of litigants to change decisions.
In 2001, you disagreed explicitly with Justice O'Connor's
view of whether a wise man and a wise woman would reach the
same decision. Yet during these hearings you characterize your
argument as being that you agreed with her.
A few weeks ago in your speech on foreign law to the
American Civil Liberties Union, you rejected the approach of
Justices Alito and Thomas with regard to foreign law, and yet
it seems to me that during these hearings you have agreed with
them.
So Judge, what should I tell my constituents who are
watching these hearings and saying to themselves, in Berkeley
and in other places around the country she says one thing, but
at these hearings you are saying something which sounds
contradictory if not diametrically opposed to some of the
things you have said in speeches around the country?
Judge Sotomayor. I would tell them to look at my decisions
for 17 years and note that in every one of them, I have done
what I say that I so firmly believe in. I prove my fidelity to
the law, the fact that I do not permit personal views,
sympathies or prejudices to influence the outcome of cases,
rejecting the challenges of numerous plaintiffs with
undisputably sympathetic claims, but ruling the way I have on
the basis of law, rejecting those claims.
I would ask them to look at the speeches completely, to
read what their context was and to understand the background of
those issues that are being discussed.
I didn't disagree with what I understood was the basic
premise that Justice O'Connor was making, which was that being
a man or a woman doesn't affect the capacity of someone to
judge fairly or wisely. What I disagreed was with the literal
meaning of her words because neither of us meant the literal
meaning of our words.
My use of her words was pretty bad in terms of leaving a
bad impression, but both of us were talking about the value of
experience and the fact that it gives you equal capacity.
In the end, I would tell your constituents, Senators, look
at my record and understand that my record talks about who I am
as a person, what I believe in, and my judgment and my opinion,
that following the rule of law is the foundation of our system
of justice.
Senator Cornyn. Thank you for your answer. Judge, I
actually agree that your judicial record strikes me as pretty
much in the main stream of judicial decision making by District
Court judges and by Court of Appeals judges on the Federal
bench.
While I think what is creating this cognitive dissonance
for many of us and for many of my constituents who I have been
hearing from is that you appear to be a different person almost
in your speeches and in some of the comments that you made.
So I guess part of what we need to do is to try to
reconcile those, as I said earlier.
I want to pivot to a slightly different subject and go back
to your statement that the courts should not make law. You have
also said that the Supreme Court decisions that a lot of us
believe made law actually were an interpretation of the law. So
I would like for you to clarify that.
If the Supreme Court in the next few years holds that there
is a constitutional right to same sex marriage, would that be
making the law? Or would that interpreting the law?
I'm not asking you to prejudge that case or the merits of
the arguments, but just to characterize whether that would be
interpreting the law or whether that would be making the law.
Judge Sotomayor. Senator, that question is so embedded with
its answer, isn't it? Meaning if the court rules one way and I
say that is making law, then it forecasts that I have a
particular view of whatever arguments may be made on this issue
suggesting that it is interpreting the Constitution.
I understand the seriousness of this question. I understand
the seriousness of same sex marriage. But I also know as I
think all America knows, that this issue is being hotly debated
on every level of our three branches of government. It is being
debated in Congress and Congress has passed an Act relating to
same sex marriage. It is being debated on various courts on the
state level, certain higher courts have made rulings.
This is the type of situation where even the characterizing
of whatever the court may do as one way or another suggests
that I have both prejudged an issue and that I come to that
issue with my own personal views suggesting an outcome. Neither
is true. I would look at that issue in the context of a case
that came before me with a completely open mind.
Senator Cornyn. Forget the same sex marriage hypothetical.
Is there a difference in your mind between making the law and
interpreting the law? Or is that a distinction without a
difference?
Judge Sotomayor. Oh, no. It is a very important
distinction. The laws are written by Congress. It makes factual
findings, it determines in its judgment what the fit is between
the law it is passing and the remedy that it is giving as a
right.
The courts when they are interpreting always has to start
with what does the Constitution say? What is the words of the
Constitution? How has precedent interpreted those? What are the
principles that it has discussed govern a particular situation?
Senator Cornyn. How do you reconcile that answer with your
statement that Courts of Appeals make policy?
Judge Sotomayor. In both cases in which I have used that
word in two different speeches, one was a speech, one was a
remark to students. This is almost like the discussion about
fundamental, what does it mean to a non- lawyer and fundamental
what it means in the context of Supreme Court legal theory.
Senator Cornyn. Are you saying it is only a discussion that
lawyers could love?
Judge Sotomayor. Not love, but in the context in both
contexts. It is very, very clear that I am talking about
completely the difference between the two judgings and that
Circuit Courts when they issue a holding, it becomes precedent
on all similar cases.
In both comments, that statement was made absolutely
expressly that that was the context of the policy I was talking
about which is the ramifications of a precedent on all similar
cases.
When Congress talks about policy, it is talking about
something totally different. It is talking about making law,
what are the choices that I am going to make in making the law.
Those are two different things.
I was not talking about courts making law. In fact, in the
Duke speech, I used making policy in terms of its ramifications
on existing cases. I never said in either speech we make law in
the sense that Congress would.
Senator Cornyn. Let me turn to another topic. In 1996 after
you had been on the Federal bench for 4 years, you wrote a law
review article in the Suffolk University Law Review that
pertains to campaign financing.
You said, `Our system of election financing permits
extensive private, including corporate financing of candidate's
campaigns, raising again and again the question of what the
difference is between contributions and bribes and how
legislators or other officials can operate objectively on
behalf of the electorate.'
You said, `Can elected officials say with credibility that
they are carrying out the mandate of a democratic society
representing only the general public good when private money
plays such a large role in their campaigns' ?
Judge Sotomayor, what is the difference in your mind
between a political contribution and a bribe?
Judge Sotomayor. The context of that statement was a
question about what was perking through the legal system at the
time it has been, as you know, before the Supreme Court since
Buckley v. Valeo.
Senator Cornyn. I agree, Your Honor. But my question is
what in your mind is the difference between a political
contribution and a bribe?
Judge Sotomayor. The question is a contributor seeking to
influence or to buy someone's vote, and there are situations in
which elected officials have been convicted of taking a bribe
because they have agreed in exchange for a sum of money to vote
on a particular legislation in a particular way.
That violates the Federal law. The question that was
discussed there was a much broader question as to where do you
draw that line as a society? What choices do you think about in
terms of what Congress will do, what politicians will do.
I have often spoken about the difference between what the
law permits and what individuals should use to guide their
conduct.
The fact that the law says that you can do this doesn't
always mean that you as a person should choose to do this. In
fact, we operate within the law, we should not be a law
breaker, but you should act in situations according to that
sense of what is right or wrong.
We have the recent case that the Supreme Court considered
of the judge who was given an extraordinary amount of money by
a campaign contributor dwarfing everything else in his campaign
in terms of contributions, funding a very expensive campaign.
Senator Cornyn. In fact, that was not a direct contribution
to the judge, was it?
Judge Sotomayor. Well, it was not a direct contribution,
but it was a question there where the Supreme Court said the
appearance of impropriety in this case would have counseled the
judge the get off.
Senator Cornyn. Let us get back to my question, if I can.
Let me ask you this.
Last year, President Obama set a record in fund raising
from private sources, raising an unprecedented amount of
campaign contributions. Do you think, given your law review
article, that President Obama can say with credibility that he
is carrying out the mandate of a democratic society?
Judge Sotomayor. That was not what I was talking about in
that speech.
Senator Cornyn. Well, he was not elected in 1996. But what
I am getting at is whether you are basically painting with such
a broad brush when it comes to people's rights under the First
Amendment to participate in the political process, either to
volunteer their time, make in kind contributions, make
financial contributions. Do you consider that a form of bribery
or in any way improper?
Judge Sotomayor. No, sir. No, sir.
Senator Cornyn. Okay. Thank you for your answer. In the
short time we have remaining, let me return to the New Haven
firefighter case briefly.
As you know, two witnesses I believe will testify after you
are through, and I am sure you will welcome being finished with
this period of questioning. A lot of attention has been given
to the lead plaintiff, Frank Ricci, who is dyslexic, and the
hardship he has endured in order to prepare for this
competitive examination only to see the competitive examination
results thrown out.
But I was struck on July 3rd in the New York Times when
they featured another firefighter who will testify here today,
and that was Benjamin Vargas.
Benjamin Vargas is the son of Puerto Rican parents, as you
probably know, and he found himself in the odd position to say
the least of being discriminated against based on his race,
based on the decision by the Circuit Court panel that you sat
on.
At the closing of the article, Lieutenant Vargas--who hopes
to be Captain Vargas as a result of the Supreme Court decision
because he scored sixth on the competitive examination--at the
very last paragraph in this article it says, ``Gesturing toward
his three sons, Lieutenant Vargas explained why he had no
regrets. He said, `I want to give them a fair shake. To get a
job on the merits, not because they are Hispanic or to fill a
quota.' He said, `What a lousy way to live.' '' That is his
testimony.
So I want to ask you in conclusion, do you agree with Chief
Justice John Roberts when he says the best way to stop
discriminating based on race is to stop discriminating based on
race?
Judge Sotomayor. The best way to live in our society is to
follow the command of the Constitution, provide equal
opportunity for all. I follow what the Constitution says, that
is how the law should be structured and how it should be
applied to whatever individual circumstances come before the
court.
Senator Cornyn. With respect, Judge, my question was do you
agree with Chief Justice John Roberts' statement, or do you
disagree?
Judge Sotomayor. The question of agreeing or disagreeing
suggests an opinion on what the ruling was in the case that he
used it in. I accept the court's ruling in that case. That was
a very recent case.
There is no quarrel that I have, no disagreement. I do not
accept that in that situation that statement the court found
applied. I just said the issue is a constitutional one, equal
opportunity for all under the law.
Senator Cornyn. I understand that you might not want to
comment on what Chief Justice John Roberts wrote in an opinion
even though I don't think he was speaking of a specific case
but rather an approach to the law which would treat us all as
individuals with equal dignity and equal rights.
But let me ask you whether you agree with Martin Luther
King when he said he dreamed of a day when his children would
be judged not by the color of their skin but by the content of
their character. Do you agree with that?
Judge Sotomayor. I think every American agrees with that.
Senator Cornyn. Amen. Mr. Chairman?
Chairman Leahy. Thank you, Senator Cornyn. Just so we will
know for the schedule, we are going to go to Senator Specter,
who is a long-time member of this committee and one of the most
senior members here.
Once Senator Specter's questions are finished, we will take
a very short break. Does that work for you, Judge?
Judge Sotomayor. It most certainly does.
Chairman Leahy. Okay. So Senator Specter is recognized for
up to 20 minutes.
Senator Specter. Thank you, Mr. Chairman. Judge Sotomayor,
you have been characterized as running a hot courtroom, asking
tough questions. We see popping out of the Supreme Court
opinions from time to time, statements about pretty tough
ideological battles in their conference room.
Justice Scalia was quoted as saying, ``The court must be
living in another world. Day-by-day, case-by-case, it is busy
designing a Constitution for a country I do not recognize.''
Referring to a woman's right to choose, in Roe v. Wade, he
said this, ``Justice O'Connor's assertion that a fundamental
rule of judicial restraint requires us to avoid reconsidering
Roe cannot be taken seriously.''
Do you think it possible that, if confirmed, you will be a
litigator in that conference room, take on the ideological
battles which pop out from time to time, from what we read in
their opinions?
Judge Sotomayor. I don't judge on the basis of ideology. I
judge on the basis of the law and my reasoning. That's how I
have comported myself in the circuit court. When my colleagues
and I, in many cases, have initially come to disagreeing
positions, we've discussed them and either persuaded each
other, changed each other's minds, and worked from the starting
point of arguing, discussing, exchanging perspectives on what
the law commands.
Senator Specter. Well, perhaps you will be tempted to be a
tough litigator in the court. Time will tell, if you are
confirmed, if you have some of those provocative statements.
Let me move on to a case which you have decided. You have
been reluctant to make comments about what other people have
said, but I want to ask you about your view as to what you have
said.
In the case of Entergy v. Riverkeeper, which involved the
question which is very important to matters now being
considered by Congress on climate control and global warming,
you ruled in the second circuit that the best technology should
be employed, not the cost-benefit. The Supreme Court reversed
5-4, saying it was cost-benefit.
Could we expect you to stand by your interpretation of the
Clean Water Act when, if confirmed, you get to the Supreme
Court and can make that kind of a judgment because you are not
bound by precedent?
Judge Sotomayor. Well, I am bound by precedent to the
extent that all precedence is entitled to the respect it--to
respect under the doctrine of stare decisis. And to the extent
that the Supreme Court has addressed this issue of cost-benefit
and its permissibility under the Clean Water Act, that's the
holding I would apply to any new case that came and the
framework--it establishes the framework I would employ to new
cases.
Senator Specter. Let me return to a subject I raised
yesterday, but from a different perspective, and that is the
issue of the Supreme Court taking on more cases.
In 1886, there were 451 cases decided by the Supreme Court;
1985, 161 signed opinions; and, in 2007, only 67 signed
opinions. The court has not undertaken cases involving circuit
splits.
In the letter I wrote to you, which will be made a part of
the record, listing a great many circuit splits and the
problems that that brings when one circuit decides one way and
another circuit another and the other circuits are undecided,
and the Supreme Court declines to take cases.
Do you agree with what Justice Scalia said dissenting in
Sorich, where the court refused to take a key circuit split;
that when the court decides not to, ``It seems to me quite
irresponsible to let the current chaos prevail with other
courts not knowing what to do? ''
Stated differently, do you think the Supreme Court has time
to and should take up more circuit splits?
Judge Sotomayor. It does appear that the Supreme Court's
docket has lessened over time, its decisions that it's
addressing. Because of that, it certainly does appear that it
has the capacity to accept more cases.
And the issue of circuit splits is one of the factors that
the court's own local rules set out as a consideration for
justices to think about in the cert process.
So in answer to your question, the direct answer is, yes,
it does appear that it has the capacity.
Senator Specter. The current rule in the Supreme Court is
that petitions for certiorari are applied and there is a so-
called cert pool where seven of the nine justices, excluding
only Justice Stevens and Justice Alito, do not participate in
the cert pool. So that the people applying for a cert don't
have the independent judgments.
When Chief Justice Roberts, before he became Chief Justice,
he said the cert pool's powers are a little disquieting.
Would you join the cert pool or would you maintain an
independent status, as Justice Stevens and Justice Alito do, in
having their own clerks and their own individual review as to
whether a cert ought to be granted?
Judge Sotomayor. I would probably do what Justice Alito
did, although I haven't decided, if I'm given the honor of
becoming a member of the Supreme Court, I haven't decided
anything. I'm not even sure where I would live in New York if
this were to happen--in Washington.
But putting that aside, Senator, my approach would probably
be similar to Justice Alito, which is experience the process,
take, for a period of time, consider its costs and benefits,
and then whether to try the alternative or not and figure out
what I think works best in terms of the functioning of my
chambers and the court.
I can't give a definitive answer, because I generally try
to keep an open mind until I experience something and can then
speak from knowledge about whether to change it or not.
Senator Specter. Judge Sotomayor, you have had some
experience on the pilot program conducted by Federal Judicial
Conference. These were the conclusions reached by the pilot
program.
They said, ``Attitudes of judges toward electronic media
coverage of civil proceedings are initially neutral and became
more favorable after experience under the pilot program.''
``Judges and attorneys who had experience with electronic
media coverage under the program generally reported observing a
small or no effects of the camera presence on participants in
the proceedings, courtroom decorum, or the administration of
justice.''
Would you agree with that, based on your own personal
experience having television in your courtroom?
Judge Sotomayor. My experience was limited. So I can't
speak to the more broad conclusion of that report. I can say
that, as we discussed when I met with you, Senator, mine was
positive.
In the two cases--I believe I only had two cases where the
media asked to record a proceeding. I may not remember others,
but I do remember two. And on the circuit court, we do provide
tapes upon request and some media has asked to record our oral
arguments.
But my experience has generally been positive and I would
certainly be able to recount that.
Senator Specter. C-SPAN has conducted a survey which shows
that 61 percent of the American people would like to see the
Supreme Court televised. In the survey, it disclosed how little
the American public knows about the Supreme Court.
Mr. Chairman, I would ask consent this be included in the
record.
Chairman Leahy. Without objection, it will be included in
the record.
[The information appear as a submission for the record.]
Senator Specter. The interest that has been generated by
this confirmation proceeding, encouraged by the television,
shows the enormous interest that people have in what the court
does.
There has been a fair amount of coverage by the justices on
television. As I cited yesterday, many have appeared on
television. Justice Kennedy says he believes that television is
inevitable.
Everybody has said who has testified that there is a grave
concern about the collegiality and people do not want to make a
judgment before talking to their colleagues, and the sense has
been derived that if anybody really has a strong objection--and
Justice Souter has expressed that view, as noted on his
widespread comment that if TV cameras were to come to the
court, they would have to come in over his dead body; and, if
confirmed, Justice Souter's body won't be there at all.
Would you tell your colleagues the favorable experience
that you have had with television in your courtroom and perhaps
take a role in encouraging your colleagues to follow that
experience for the Supreme Court?
Judge Sotomayor. I would certainly relay my experiences. To
the extent some of them may not know about the pilot study in
many courts, I would share that with them, although I suspect
they do know, and will participate in discussions with them on
this issue. Those things I would do, Senator.
Senator Specter. Some of my colleagues have questioned
whether, as you stated, your panel in the Maloney case was
really bound by Supreme Court precedent. The seventh circuit
reached the same decision your panel did and in that opinion,
written by a highly respected Republican judge, Frank
Easterbrook, the seventh circuit pointed out that Heller
specifically declined to reconsider older Supreme Court cases
which have held that the Second Amendment applies only to the
Federal Government.
Judge Easterbrook wrote, ``That does not license the
inferior courts to go their own ways; it just notes that [the
older precedent] is open to reexamination by the Justices
themselves when the time comes.''
That was your court's conclusion, also, wasn't it?
Judge Sotomayor. It was and I understand, having reviewed
Justice Easterbrook's opinion, that he agreed with the
reasoning of Maloney on that point.
Senator Specter. I want to return to the issue of the basic
authority and responsibility of the Supreme Court to decide the
major cases on separation of power.
There was a case which the Supreme Court decided certiorari
just a couple of weeks ago involving claims for damages brought
by survivors and victims of September 11 against certain
individuals in Saudi Arabia, and this case posed a classic
conflict between executive and legislative responsibilities.
Congress had legislated under sovereign immunity in 1976
that tort claims, like flying an airplane into the World Trade
Center, were an exception to sovereign immunity and the
executive branch interposed objections to having that case
decided because of the sensitivity of matters with Saudi
Arabia.
The case involved circuit splits and very, very important
matters in that tragedy, which, you have commented, reached
you, being very close to the incident. Do you not think that
that is the kind of a case the Supreme Court should have heard
to decide that kind of a very basic conflict between Article 1
powers of the Congress and Article 2 powers of the executive?
Judge Sotomayor. Senator, obviously, issues related to
September 11 and national security are very important issues to
the country as a whole. For the reasons I mentioned earlier, I
lived through September 11, so I understand its great tragedy
and effect on America.
The question you asked me, though, is one that asks me to
make judgment about an act the Supreme Court has done and I
didn't participate in their discussions. I didn't review the
cert petitions. I didn't talk about with them their reasons.
It would seem and is inappropriate to me to comment on a
question that I wasn't a party to in making the decision.
Senator Specter. Well, would you not at least agree with a
proposition that conflicts between the Congress and the
executive branch are of the highest duty for the Supreme Court
to consider and to decide?
Judge Sotomayor. All conflicts under the Constitution, all
issues arising from the Constitution are important.
Senator Specter. Well, I know that, but that is a pretty
easy question to answer. I am not asking you to agree with
Justice Roberts that the court ought to take more cases, which
would seem, to me, to be pretty easy, or the question about
Justice Scalia saying that there is turmoil when the circuits
split and you do not have the Supreme Court taking cert.
But is that not of the highest magnitude? Our discussions
here have involved a great many issues, but I would suggest to
you that on separation of powers and when you undertake the
role of the Congress contrasted with the role of the President,
Congress is Article 1. It was placed with primacy because we
are closest to the food bowl.
And when you have a question, which you would not comment
on yesterday, like the terror surveillance program, which
flatly contradicts the congressional enactment of the Foreign
Intelligence Surveillance Act, that the only way you get a
wiretap is with court approval, and the cases declared
unconstitutional in the Detroit district court and the sixth
circuit dodges the case on standing or very questionable
grounds and the Supreme Court will not even hear it and you
have a case involving September 11 and a very blatant conflict
between Congress' powers expressed under Article 1 with the
Sovereign Immunities Act and the President stepping in under
foreign powers, is that not a category of the highest
magnitude?
Judge Sotomayor. It is so difficult to answer that question
in the abstract. For the reason I've just explained, the issue
is much, much more complicated than an absolute that says if a
case presents this question, I'm always going to take it.
That's not how a judge looks at the issue of granting or
not granting certiorari, I assume, because the court is
weighing so many different factors at the time that decision is
made.
Senator Specter. Judge, I do not want to interrupt you, but
I have got a minute and a half left and there are a couple of
comments I want to make in conclusion.
I would ask you to rethink that and I would also ask you to
rethink the issues you did not want to answer yesterday about
conflict between the Congress and the court. Even though the
Constitution made Congress Article 1 and the President Article
2, the Supreme Court has really reversed the order. The
judiciary is now really in Article 1, if the powers were to be
redefined.
But I would ask you to take a look. You have said
repeatedly that the job of the court is to apply the law, not
to make the law. Take a look again at the standard of
proportional and congruent and see if you do not agree with
Justice Scalia that that is another way for the court to make
law.
Take a look, too, at what Justice Roberts said here in the
confirmation hearings, that there would be deference and
respect to congressional fact-finding and how that is not done
in the Garrett case and in the voting rights case.
Out of consideration for the people who are going to appear
here later, I am not prepared yet to announce my own vote, but
it is my hope that the conventional wisdom is very strong for
your confirmation, that you will use some of those
characteristics of your litigation experience to battle out the
ideas that you believe in, because I have a strong hunch that
they are closer to the ones that I would like to see adopted by
the court.
And do not let the issues of separation of powers skip by.
The Congress is entitled to deference on these big issues and
at least they ought to be decided by the court.
Thank you very much, Judge Sotomayor. You have done quite
an outstanding job as a witness. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter. Judge, we are
going to take a short break. Thank you for all of this. When we
come back, I will recognize Senator Coburn, who is next. Thank
you.
[Whereupon, the hearing was recessed at 11:22 a.m.]
After Recess [11:35 a.m.]
Chairman Leahy. Judge, thank you, and I do want to thank
the press for cooperating. We have tried to make it possible
for TV and print and photographers, and you have been very
gracious in that regard. We are coming close to the end of this
round. Whether it will be the last round or not will be up to
the Republican side. But I would yield now to Senator Coburn
who has been waiting patiently. Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman.
Judge Sotomayor, good morning again.
Judge Sotomayor. Good morning.
Senator Coburn. Yesterday, when I was asking you about
foreign law, you said I should read your speech, so I did. I
read your speech. So I want to come back to that for a minute
because I want to ask you the same question I have asked the
only other two Supreme Court nominees that have come before the
Committee while I have sat on this Committee. And I want to ask
you the same question. My first statement yesterday was asking
you about whether you disagreed with Alito and Thomas, and you
said basically you agreed.
So on the basis of that agreement, will you affirm to this
Committee and the American public that, outside of where you
are directed to do so through statute or through treaty,
refrain from using foreign law in making the decisions that you
make that affect this country and the opinions that you write?
Judge Sotomayor. I will not use foreign law to interpret
the Constitution or American statutes. I will use American law,
constitutional law to interpret those laws, except in the
situations where American law directs a court.
Senator Coburn. Thank you. I want to ask you also--another
question that I asked both Justice Alito and Justice Thomas--
and it is a problem I have with my colleagues here in the
Senate. You have written extensively about some of the
ambiguity that is in law. Would it be your opinion that we
could do a much better job by being much clearer about what our
intent is when we write statutes? Feel free to offend us,
because we sorely need it.
[Laughter.]
Chairman Leahy. Senator Coburn, speak for yourself.
Senator Coburn. I am speaking for the vast majority of the
American people. We do not do a thorough job in making clear
our intent or the background of our intent when we--and I will
give you an example. Two hundred and twenty times in the bill
that just came out of the HELP Committee we gave full shrift to
the Secretary of HHS to write all the regulations, without our
intent, none of our intent.
So as you sit, if you sit, on the Supreme Court, I am sure
many of those are going to come before you without our intent
but with a bureaucracy's intent or an executive branch intent.
So the question I am asking you: In your experience, since
you have noted the ambiguity that is in the law, would you make
it a recommendation to your friends you have now established,
all 19 of us here on the Judiciary Committee, that we might do
a better job of being much more clear in what we intend?
Judge Sotomayor. It would be presumptuous of me to tell you
how to do your job, but I do know in my conversations virtually
with all 89 Senators--perhaps not all of them, but the vast
majority of them, somewhere in the conversation there was
reference to their feelings, like yours, that a better job
could be done by Congress in making its intent clearer. I think
that that's a question that Senators think about, at least the
ones that I've spoken to. And I think that the process is
always better for a court when Congress' intent is more clearly
stated.
Senator Coburn. And there is no doubt in your mind that if
we were much more clear, guidance would be better given to the
Supreme Court as conflicts over the statutes and laws come
forward?
Judge Sotomayor. When Congress' intent is clear, the Court
applies that clear intent.
Senator Coburn. Thank you. I want to go back to a couple
other areas that we talked about. One is some answers to
questions that you gave to--questions from Senator Hatch.
Senator Hatch asked you to describe your understanding of
the test or standard that the Supreme Court uses to determine
whether a right should be considered fundamental. Specifically,
he noted that when determining whether a right is fundamental,
the Supreme Court determined whether the right is deeply rooted
in our Nation's history and tradition, that it is necessarily
to an Anglo-American regime of ordered liberty, or that it is
an enduring American tradition.
You refused to answer him, asserting that you responded
that you haven't examined that framework in a while to know if
that language is precise or not. ``I'm not suggesting it's
not,'' you said, ``Senator, I just can't affirm that
description.''
Similarly, you refused to describe to me the test the Court
used to determine whether a right is a fundamental right.
But, in contrast to that, when Senator Kaufman asked you to
give a very detailed description of the fact the Court's
considering when determining the doctrine of stare decisis, you
stated and went through a long litany of the items with which
the Court uses with which to determine stare decisis. And you
gave a fairly detailed analysis of that process and the
doctrine of stare decisis.
And so I ask you again: Why can't you give us your
description of what you think the parameters are that the Court
uses to determine a fundamental right in light of the 14th
Amendment, incorporation right?
Judge Sotomayor. All right. That language has been used in
certain cases respecting the question of the incorporation of
certain amendments. The question of--and the general framework
will be used with respect to any consideration of
incorporation. That wasn't, I thought, the question that was
being asked of me. I don't remember that being the specific
question. All I'm saying to you is that the framework has been
discussed by the Court in jurisprudence that's developed over
the last hundred years, subsequent to its established
precedents on the Second Circuit.
One of the questions that the Court will address if it
decides to address the incorporation of the Second Amendment is
whether in those related areas it will use or not use the
doctrines or framework of that precedent. There may be
arguments on one side why, on another side why not. What I'm
trying to do is not prejudge an issue that is so pending before
the----
Senator Coburn. Well, I am not asking you to prejudge the
issue. I am asking you under what basis, what is the--what are
the steps and the considerations, not the details of the case.
In other words, you can describe that for us in terms of stare
decisis, but you can't describe that for us in terms of a
fundamental right. And to me that is concerning because we
should understand--that should be transparent to the people in
this country how that works.
Judge Sotomayor. Because that's the very issue the Court's
going to look at. The question of stare decisis is a general
framework that one uses not in a particular context of a case,
I am going to choose always to look at the outcome of the case
in this way. It's----
Senator Coburn. Your Honor, I understand that. If I can't
get you to go there, I want to quit and go on to something
else, if I can.
I also asked you yesterday--I want you to understand. You
were raised in the Bronx. I was born in Wyoming and raised in
Oklahoma. They are really different, both geographically and
culturally, different areas. And so I want you to understand
why I am spending so much time talking with you about the
Second Amendment.
My constituents in Oklahoma understand, as do most
Americans, that the right to own guns hangs in the balance, may
very well hang in the balance with your ascendancy to the
Supreme Court. For us, one wrong vote on what we consider--
regardless of what you consider, but what we consider a
fundamental right, could gut the holding of Heller. And I have
some serious concerns on that issue, and I want to ask you a
few more questions.
Yesterday you said that clearly a constitutional right only
works if you can enforce it. And I agree. Tell me how American
citizens would be able to enforce their individual
constitutional right to bear arms if you are holding that it
does not apply to the States in your previous case at the
appellate level becomes the law of the land.
Judge Sotomayor. The only statement I can start with is
Maloney was decided on the basis of precedent. It was decided
on precedent. The Supreme Court in Heller recognized that it's
precedent. It was based on Second Circuit precedent that had
interpreted the constitutional--the Supreme Court's prior
precedent.
It may well be--may not be--that Senator Hatch was right
that the old precedent should be distinguished in a certain
way. Others may be right that it shouldn't. That issue was not
the one that the Maloney court decided Maloney on. It decided
it on the rule of law. It was a rule of law that led Judge
Easterbrook in the Seventh Circuit decision to say it is not
what we should be doing; it is what the Supreme Court should
do, is to re-examine a precedent that's directly on point.
I can assure your constituents that I have a completely
open mind on this question. I do not close my mind to the fact
and the understanding that there were developments after the
Supreme Court's rulings on incorporation that will apply to
this question or be considered. I have a completely open mind.
Senator Coburn. Do you not consider it ironic that the
majority of the debate about the 14th Amendment in this country
was about the taking of guns from freed slaves? Is that not
ironic that we now have some kind of conflict that we are going
to say that the whole reason and the debate about the 14th
Amendment originated from States taking away the rights of
people's fundamental right to defend themselves? Is that not an
irony to you?
Judge Sotomayor. Senator, would you want a judge or a
nominee who came in here and said, ``I agree with you. This is
unconstitutional'' before I had a case before me, before I had
both sides discussing the issue with me, before I spent the
time that the Supreme Court spent on the Heller decision? And
that decision was mighty long, went through 2 years of history,
did a very thorough analysis and discussion back and forth on
the prior opinions of the Committee. I don't know that that's a
Justice that I can be. I can only come to this process----
Senator Coburn. I agree with you, Your Honor. I don't want
you to tell us how you're going to rule. But I asked you: Isn't
it ironic that in this country where our law comes from
Blackstone forward, comes from English law, which our founding
was perpetrated and carried out under this fundamental right,
and that we have a 14th Amendment right, and that we have
through legal, what I would consider as a physician,
schizophrenia have decided that we can't decide whether this is
a fundamental right?
I will finish with that point other than to note the
pressure reference was to privilege and immunity, not due
process.
Judge Sotomayor. I understand the importance of the right.
It was recognized in Heller, and all I can continue to say,
Senator, is I keep an open mind on the incorporation doctrine.
Senator Coburn. I appreciate that, Your Honor. Thank you
very much.
Let me go back to an area that I know not everybody wants
to hear about, but I think it is important. I asked you about
where we were in terms of settled law on Roe and Doe, and today
I only want to focus on Roe and Doe, not Casey.
What was the state of the law, say, in 1974, 1 year after
Roe? Where did we stand in that issue?
Judge Sotomayor. That women have the right to terminate
their pregnancy in some situations, without Government
regulation, and in others, there would be permissible
Government regulation.
Senator Coburn. Did any of the----
Judge Sotomayor. That's generally, because the Court did
look at other questions in terms of Government regulation.
Senator Coburn. Then let me ask you this: Did any of the
laws of the 50 States regulating abortion survive the decision
in Roe?
Judge Sotomayor. I don't know that I could answer that
question because I don't----
Senator Coburn. Okay. That's fair. They didn't.
Was there any limit to the right to abortion either in the
age of the child in the womb or the reasons for electing that
surgery? And if so, what are those limits, according to Roe and
Doe?
Judge Sotomayor. Senator, I don't actually remember the
Court addressing that because my studies have been on the undue
burden test established in Casey. So my experience in this area
or my knowledge really has been most particularly concentrated
on the Casey standard, which is----
Senator Coburn. I understand that.
Judge Sotomayor [continuing]. What Casey did was change the
Roe standard.
Senator Coburn. Which goes back to why I asked you those
two hypothetical, not abstract but hypothetical cases
yesterday, of the 28-week and a 38-week infant. The truth is
ever since January 22, 1973, you can have an abortion for any
reason you want in this country. And even though Carhart II has
now been ruled, that is, a procedure that will eliminate that
pregnancy is still legal and viable everywhere in this country.
And so what I was trying to draw out to you is where do we
stand in this country when 80 percent of the rest of the world
allows abortion only before 12 weeks--only before 12 weeks--and
yet we allow it for any reason at any time for any
inconvenience under the ``health of the woman'' aspect.
And that is the other reason why I raised the viability
because technology and the States' interest under the Supreme
Court ruling starts with viability. That is when a State can
have interest. It is guaranteed, and there is limited ability
States can have to control that after that.
Is the Casey ruling, the undue burden ruling test, is that
a policy choice? I know it is the supreme law of the land
today, but in your mind, would that represent a policy choice?
Judge Sotomayor. I understood that that was the Court's
framework for addressing both the woman's right to terminate
her pregnancy under the Constitution and the State's rights to
legislate and regulate in areas within its jurisdiction. So it
was the Court's way of attempting to address those two
interests.
Senator Coburn. And Justice Ginsburg is not real happy with
those tests, and neither was--neither are several other members
on the Court.
I want to end up, our conversation when we had a private
conversation, I approached you about the importance of the
cases that you would decide to take if you are on the Court.
Let me ask you a few questions, and I just want your opinion.
And this is not to put you in any box, and if you think it is,
please say so, ``You're trying to put me in a box.''
Do you believe that the Court's abortion rulings have ended
the national controversy over this issue?
Judge Sotomayor. No.
Senator Coburn. Okay. You don't have to name them, but do
you think there are other similarly divisive issues that could
be decided by the Court in the future?
Judge Sotomayor. That I can't answer. I----
Senator Coburn. I don't want you to name any. I am just
saying as you think through your mind, do you think there are
other similarly divisive issues that we could have that would
divide the country so remarkably--you know, assisted suicide,
euthanasia?
Judge Sotomayor. I can only answer what exists. People are
very passionate about the issues they believe in, and so almost
any issue could find an audience or a part of our population
that's fervent about it.
Senator Coburn. Which is a great answer, because on these
divisive issues, is it better that the Court decides them or
elected representatives? If you had a preference, if you were
King tomorrow and you said we are going to decide this either
in the Supreme Court or force Congress to make the decision,
which would you think would be better for us?
Judge Sotomayor. In the first instance, it's always
Congress or State passing regulation that the Court is
reviewing and determining whether it complies with
constitutional limits. It's not a choice of either/or. It's
always Congress' first instance or the State legislators' first
interest with the non-veto of a----
Senator Coburn. I have got 30 seconds left. I want to ask
you another question. You said just a minute ago people are
passionate about what they believe in. And I have read your
speeches and your publications and your--and I believe you are
passionate. And I believe your speeches reflect your passions.
I look at myself when I give a speech. You know, I let it
all go, what I really believe. I am more measured--some people
wouldn't believe that up here, but I am more measured when I am
here. But when I give a speech--and the problem I am having is
I really see a dissonance about what you said outside of your
jurisprudence. And the only ability we have to judge is what
that passion has relayed in the past and your statements here
in combination with your judicial practice.
And so you are an admirable judge, an admirable woman. You
have very high esteem in my eyes for both your accomplishments
and your intellect. I have yet to decide where I am going on
this because I am still deeply troubled because of the answers
that I could not get in the 50 minutes that I have been able to
ask, and also deeply troubled because I believe what you have
spoken to the law students, what you have spoken in your
writings truly reflect your real passions, which I sometimes
find run in conflict with what I think the Constitution has to
say.
But I thank you for giving us such a cordial response, and
I am mightily impressed.
Thank you, Mr. Chairman.
Judge Sotomayor. Thank you, Senator.
Chairman Leahy. Thank you. Senator Coburn, the Republican
side has asked for a third round of those who want another 10
minutes, and so you will have a chance for more questions if
you wish, because I am trying to be fair to both sides, and I
will allow that.
Before we go to Senator Franken, though, and while you are
still here, Senator Coburn, I had reserved about 10 minutes of
my time, and I will use just a minute or so of it. You spoke
about the Second Amendment, which is a significant issue, and
it is one people care about. And you spoke about gun owners out
West and your life in both Wyoming and then Oklahoma. I look at
that, of course, because both Wyoming and Oklahoma have more
restrictive gun laws than my own State of Vermont. I could say
that virtually every State has more restrictive gun laws than
we do in Vermont.
I have been a gun owner since my early teens. I target-
shoot at my home in Vermont as a way of relaxation all the
time. I own numerous weapons, hand guns and long guns. I have
not heard anything or read anything in the judge's writings or
speeches that would indicate to me that in any way I have to
worry that Vermont gun owners--and many Vermonters are gun
owners; it is a way of life--that that is going to change. It
is not going to change for me. It is not going to change what
weapons my two sons, one a former Marine, own. If Judge
Sotomayor is on the Supreme Court, I expect I will still be
back in my home--and you are welcome any time you would like to
come and go target shooting with me there.
Senator Sessions. Mr. Chairman, I would just say briefly
but it is a real pivotal time we are in. If the decision by
Judge Sotomayor becomes law, any city--maybe not Vermont, but
any city or State in America could virtually, I believe, fully
ban all firearms. And that is just where we are, and we can
discuss how much precedent had to bound you to reach that
conclusion. But this is not a little bitty issue. It is very
important.
Chairman Leahy. But States made laws as they have gone
along. Vermont has decided not to have the restrictive laws
that you have in Alabama. But States have made up their mind.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. I have a letter
here from several former U.S. attorneys from the Southern
District of New York. Some of them Republican appointed and
supporting the judge's confirmation. I will read a little bit
from it.
It says they each had personal experience including
appearing before Judge Sotomayor. She came to our cases without
any apparent bias, probed counsel actively with insightful and
at times tough questions and demonstrated time and again that
she not only listens, but is often persuaded by counsel.
In our matters, Judge Sotomayor's opinions reflect clear--
it is great. It is a great letter. I would ask that it be
entered into the record. Sir? Can I enter it into the record?
Thank you.
Thank you, Judge Sotomayor, for your patience and your
terrific answers.
We have heard a lot about your thoughts on specific cases
and on principles of jurisprudence. I would like to ask a much
more general question and one that I think is a really good
question at job interviews.
That is why do you want to be a Supreme Court Justice?
Judge Sotomayor. You are going to hate me for taking a few
minutes, but can I tell you a story?
Senator Franken. I would love it.
Judge Sotomayor. Because it will explain who I am and why.
When Senator Moynihan first told me that he would consider
sending my name to Senator D'Amato for consideration as a
District Court judge, he asked me to keep it quiet for a little
bit of time and I asked permission to tell my mom, Omar. This
is short.
So they were visiting and I told them and mom was very,
very excited. She then said how much more money are you going
to earn? I stopped and I said I'm going to take a big pay cut.
Then she stopped and she stopped and she said, are you going to
do as much foreign travel as you do now? I was flying all over
the U.S. and abroad as part of my private practice work.
I said probably not because I am going to live in a
courthouse in lower Manhattan near where I used to work as a
Manhattan DA. Now the pause was a little longer. She said,
Okay. Then she said, now all the fascinating clients that you
work with, as you may have heard yesterday, I had some fairly
well known clients, you are going to be able to go traveling
with them with the new people you meet, right?
I said, no. Most of them are going to come before me as
litigants to the cases I am hearing and I cannot become friends
with them. Now the pause is really long. She finally looked up
and she said, why do you want this job?
And Omar, who was sitting next to her said, Selena, you
know your daughter. This is in Spanish. You know your daughter
and her stuff with public service. It really has always been
the answer.
Given who I am, my love of the law, my sense of importance
about the rule of law, how central it is to the functioning of
our society, how it sets us apart as many Senators have noted,
from the rest of the world, have always created a passion in
me.
That passion led me to want to be a lawyer first and now to
be a judge because I can't think of any greater service that I
can give to the country than to be permitted the privilege of
being a Justice of the Supreme Court.
Senator Franken. Thank you. Well, I for one have been very
impressed with you, Judge, and I certainly intend to support
your confirmation for the court.
I guess there is another round. I thought I was going to be
the only thing between you and the door. So I planned to just
yield all the rest of my time. But since I am not I would like
to ask you--no. I am going to yield the rest of my time if that
is okay.
Chairman Leahy. Thank you very much, Senator Franken. I
will reserve my time. We will have--Senator Sessions has asked
us. Ten minute rounds. I think they will be primarily on the
Republican side. I may speak again when they finish. We will
begin with you, Senator Sessions.
Senator Sessions. Thank you. Thank you, Chairman Leahy. I
believe we have tried to meet our goal. I had a goal at the
beginning and people would say this is one of the most fair and
effective hearings we have ever had. I hope that has been the
case.
It is a great issue, the choice of putting someone on the
United States Supreme Court. Our nominee has a wonderful group
of friends and a long and distinguished record, but a number of
questions arose that are important.
American people rightly are concerned that on important
social issues that are not clearly stated in the Constitution
on important legal issues not clearly stated in our law seem to
be decided by unelected lifetime appointed courts. Those are
big, big issues that we have discussed here today I hope in a
way that is healthy and positive.
Judge, one thing I will ask you, I asked Justice Roberts
and I am not sure how much good it did because he came back
asking for a pay raise the next week, I think. But can you live
on that salary that you are paid? We are having the largest
deficit in the history of the Republic. A lot of people are
going to have to tighten their belts. Are you prepared to do so
also?
Judge Sotomayor. I have been living on the salary for 17
years, so I will suffer through more of it. It is difficult for
many judges. The pay question is a significant one for judges
who haven't received pay raises I think it is more than 20
years now if I am not mistaken.
Senator Sessions. Well, you are saying pay raises based
on--they are getting pay raises almost every year really, the
cost of living and that kind of thing. But there was a big pay
raise about 20 years ago.
I think that it is about four times the average family
income in America. I hope that you can live on it. If not, you
probably shouldn't take the job.
All judges, whether they are activists or not, if asked are
going to say they follow the law. They just have a different
view of the law. They just have a more looser interpretation of
the law. So that is why we press some of these issues.
We want to determine as best we can just how tightly you
believe you are bound by the law and how much flexibility you
might think that you have as a judge to expand the law to suit
perhaps a--in some policy area or another.
Attorney General Holder recently said that he thought we
lacked courage in discussing the race issue. I think that is
something that we should take seriously. That was a valid
comment.
In my opinion, we had a higher level of discussion of that
issue since I have been in this committee and I hope we have
done it in a way that's correct. This is so sensitive and it is
so important and we need to get it right and we must be fair to
everybody.
We know that there are cases when people have been
discriminated against. They are entitled to a remedy and the
Supreme Court has been quite clear that when you can show a
history of discrimination, and we have had not just in the
south, but in the south, the jurisprudence has developed that
it is appropriate for a judge to have a remedy that would
encourage a move forward to a better opportunity those who have
been held back. So that is good.
But the Supreme Court has also said that this is a
dangerous philosophy because when you do that, you have
identified one racial group and you have given them a
preference over another. So it can be done in a legitimate way
that is remedial.
We still have vestiges of discrimination still in our
society and there will still be needs for remedial remedies.
But I do think, as Justice Roberts said, the best way to end
discrimination is quit doing it. A lot of our orders and court
decisions are such that they benefit one race over another
solely because of their race. It has to be tied to a remedy.
The Supreme Court has made clear that when you do that, it must
meet the highest scrutiny as the courts are supposed to review
that very carefully and the language they use is strict
scrutiny.
You don't favor one group over another without meeting that
high standard. I am glad we began to discuss that and we will
have the firefighters and they will be able to express their
view on it in a little bit.
Judge, let me just say before I go forward that you have
done a good job. You have a good humor, you have been direct in
your answers and we appreciate that.
I will not support, and I do not think any member of this
side will support a filibuster or any attempt to block a vote
on your nomination. It is a very important vote. We all need to
take our time and think it through and cast it honestly as the
occasion demands.
But I look forward to you getting that vote before we
recess in August.
Let me discuss, Judge, I will just express this as we go
forward. In your handling of the Ricci case, I think it is fair
to say that it was not handled in the regular order.
You said in your opening statement that, `The process of
judging is enhanced when the arguments and concerns of the
parties through litigation are understood and acknowledged and
that is why I generally structure my opinions by setting out
what the law requires and then by explaining why a contrary
position, sympathetic or not, is accepted or rejected. That is
how I seek to strengthen both the rule of law and faith in the
impartiality of our justice system.'
I think that is a good statement. But I think what the
panel did in this case did not meet that standard.
I think it was action I would conclude fairly, I think,
contrary to the rule to the Second Circuit, Rule 32-1 says that
summary orders are only appropriate where `a decision is
unanimous and each judge of the panel believes no
jurisprudential purpose would be served by an opinion.'
Your clerk of your court there to the New York Times said
this order `Ordinarily issues when the termination of the case
revolves around well settled principles of law.'
I would note that it was not a pro curium opinion at first.
It was a summary order which is even less of an impactful
decision than the other. But I think the Supreme Court made
clear and I think most Americans understand that the
firefighters case was more than that. It had tremendous
jurisprudential impact and I think you were wrong to attempt to
use the summary order which because it was objected to within
your circuit which resulted in a pretty roaring debate and
discussion and that you went forward, you then did it in a pro
curium way, which at least gave it a little higher credence,
but you did not write an in-depth opinion at all. In fact, it
was still a pro curium and short opinion.
I understand according to some of the writers that Judge
Sack, New York Times, I believe, quoted--National Journal that
he was most reluctant to join the opinion. Judge Pooler was in
the middle, and I guess it didn't reference the third judge,
but apparently you were the third judge that was pushing for
this kind of result.
Did you fail to show the courage that Attorney General
Holder has asked us to show and discuss this issue openly with
an in-depth opinion and wouldn't we have been better off if the
case hand been handled in that fashion?
Judge Sotomayor. Sir, no. I didn't show a lack of courage.
The court's decision was clear in both instances on the basis
for the decision. It was a thorough, complete discussion of the
issues as presented to the District Court. The Circuit Court's
ruling was clear in both instances. No, I did not lack courage.
Senator Sessions. Well, I don't think it was a great
District Court opinion, so I would disagree on that. Mr.
Chairman, you have been fair to us throughout. I do not know
that every member of our side would use the time that they are
allotted, but I am glad that you are allowing them the
opportunity to do so.
Chairman Leahy. Thank you for that compliment, Senator. I
should compliment Senator Specter here when he was Chairman I
was Ranking Member and we had two Supreme Court nominations. We
tried to work out a time to be fair to everybody and we did and
we were told by both Republicans and Democrats that nobody had
to complain about the amount of time.
I have tried to do the same thing. It is a lifetime
appointment. I have been very impressed of course with our
nominee and that has been obvious. Incidentally, she was
originally nominated by President H. W. Bush and then by
President Bill Clinton and now by President Barack Obama.
President Clinton nominated her to the Second Circuit and I
have a letter addressed to the members of the committee, well,
actually to you and I, Senator Sessions, from former President
Clinton. He speaks of her being able to make a unique
contribution to the bench through her experience as a
prosecutor and trial judge and hopes that we will have a speedy
confirmation of her. I will put that in the record.
One of the things in also trying to make sure everybody
gets a balanced time, but we have had a lot of us that have
served as either Chairman or Ranking Member of this committee
and we know how important that is. I use that to yield to
Senator Hatch who has had also the problem of having to
schedule how things go. I yield to you. But thank you, Jeff, I
appreciate that.
Senator Hatch. Well, thank you, Mr. Chairman. I echo Jeff's
statement here.
Judge, you have been great throughout this process and I
appreciate it, but I have some questions that I'd like to ask
that I think you can answer yes or no, of course you can
qualify if you feel like it. But I would like to get through
these because they are important questions to me and millions
of other people that I represent.
Judge, from 1980 from 1992 you were actively involved with
the Puerto Rican Legal Defense and Educational Fund. It is a
well known Civil rights organization in our country.
Among many other activities, this group files briefs in
Supreme Court cases. You served in nearly a dozen different
leadership positions there, including serving on and chairing a
litigation committee.
The New York Times has described you as a `tough
policymaker' with the group and said that you would meet
frequently with the legal staff, review the status of cases and
played an active role in the fund's litigation.
Lawyers of the fund described you as, `An involved and
ardent supporter of their various legal efforts during your
time with the group.' The Associated Press looked at documents
from your service with the fund that showed that you were,
`involved in making sure that the cases handled were in keeping
with its mission statement and were having an impact.'
When Senator Gillibrand introduced you to this committee on
Monday, she compared your leadership role at the fund to
Justice Ruth Bader Ginsburg's participation in the ACLU Women's
Rights Project or Justice Thurgood Marshall's participation on
behalf of the NAACP Legal Defense and Education Fund.
So let me ask you just about a few abortion cases in which
the Fund filed briefs. I do believe you can answer these yes or
no, but again, certainly qualify if you feel like it.
I am not asking for your present views, either personal or
legal, let's get that straight, on these issues, nor am I
asking you how you might rule on these issues in the future. I
just want to make that clear.
I might say that these are important issues. In one case,
Wemus v. Lavars and Harris v. McCray, the Fund joined an Amicus
brief asking the Supreme Court to overturn restrictions on
taxpayer funding for abortion.
The brief compared refusing to use Medicaid Funds to pay
for abortions to the Dred Scott case, the Dred Scott v. Sanford
decision that refused citizenship to black people in our
society and treated them terribly.
At the time, did you know that the Fund was filing this
brief? At the time did you know--well, let me just ask each
one. At the time, did you know the fund was filing this brief?
Judge Sotomayor. No, sir.
Senator Hatch. At the time, did you know that the brief
made this argument?
Judge Sotomayor. No, sir.
Senator Hatch. At the time did you support the Fund filing
this brief that made this argument?
Judge Sotomayor. No.
Senator Hatch. At the time did you voice any concern,
objection, disagreement or doubt about the Fund filing this
brief or making this argument?
Judge Sotomayor. I was not like Justice Ginsburg or Justice
Marshall. I was not a lawyer on the Fund as they were with
respect to the organizations they belong to. I was a board
member and it was not my practice and not that I know of any
board member, although maybe one with Civil Rights experience
would have. I didn't have any in this area, so I never reviewed
the briefs.
Senator Hatch. All right. In another case, Ohio v. Aquin
Center for Reproductive Health, the Fund argued that the First
Amendment right to freely exercise religion undermines laws
requiring parental notification for minors getting abortion.
Now, at the time did you know that the Fund was filing this
brief?
Judge Sotomayor. No. No specific brief. Obviously it was
involved in litigation, so I knew generally they were filing
briefs. But I wouldn't know until after the fact that the brief
was actually filed. But I wouldn't review it.
Senator Hatch. The same questions on this. At the time did
you know that the brief made this argument? At this time did
you support the Fund filing this brief that made this argument?
And at the time did you voice any concern, objection,
disagreement or doubt about the Fund filing this brief or
making this argument?
Judge Sotomayor. No because I never reviewed the brief.
Senator Hatch. That's fine. I'm just going to establish
this.
In another case, Planned Parenthood v. Casey, the Fund
argued against a 24-hour waiting period for obtaining an
abortion. So again, those questions. At the time did you know
that the Fund was filing this brief? Did you know that the
brief made this argument? Did you support the Fund filing this
brief that made this argument? And did you voice any concern,
objection, disagreement or doubt about the Fund filing this
brief or making this argument?
Judge Sotomayor. For the same reason, no.
Senator Hatch. Now, Judge, I am going to be very easy on
you now because I invited constituents in Utah to submit
questions and got an overwhelming response. Many of them
submitted questions about the Second Amendment and other issues
that have already been discussed.
One constituent asked whether you see the courts,
especially the Supreme Court as an institution for resolving
perceived social injustices and equities and disadvantages.
Now, please address this both in terms of a Justice's
intention and the effect of their decisions. That was the
question and I thought it was an interesting question.
Judge Sotomayor. No, that's not the role of the courts. The
role of the courts is to interpret the law as Congress writes
it. It may be the effect in a particular situation that in the
court doing that and giving effect to Congress' intent, it has
that outcome.
But it is not the role of the judge to create that outcome.
It is to interpret what Congress is doing and do what Congress
wants.
Senator Hatch. Great. One final question, Judge. Describe
your judicial philosophy in terms of the phrase `Fidelity to
the Law.'
Would you agree with me that both majority and descending
Justices in last year's gun rights decision in District of
Columbia v. Heller were doing their best to be faithful to the
text and history of the Second Amendment?
Judge Sotomayor. Text and history, how to analyze, yes.
Senator Hatch. In other words, do you believe that they
were exhibiting fidelity to the law as they understood it?
Judge Sotomayor. Yes.
Senator Hatch. Then I take it that you would agree that the
Justices in the majority were not engaging in some kind of
right wing judicial activists in the--characterized the
decision. Is that fair to say?
Judge Sotomayor. It is fair to me to say that I do not view
what a court does as activism. I view it as each judge
principally interpreting the issue before them on the basis of
the law.
Senator Hatch. Great. Let me just ask you one other
constituent question. It is a short one.
Another constituent asked, which is more important or
deserves more weight? The constitution as it was originally
intended or newer legal precedent?
Judge Sotomayor. What governs always is the Constitution.
Senator Hatch. Which is more important or deserves more
weight? The actual wording of the Constitution as it was
originally intended or newer legal precedent?
Judge Sotomayor. The intent of the founders were set forth
in the Constitution. They created the words, they created the
document. It is their words that is the most important aspect
of judging.
You follow what they said in their words and you apply it
to the facts you are looking at.
Senator Hatch. Thank you, Judge. I will give back the
remainder of my time, Mr. Chairman.
Chairman Leahy. I just would note we do have this letter in
the record from the Puerto Rican Legal Defense and Education
Fund in which they say neither the board as a whole nor any
individual member selects litigation to be undertaken or
controls ongoing litigation.
I just think that we should be very, very clear here. It is
probably why they get support from the United Way and a number
of other organizations.
Senator Grassley.
Senator Grassley. Good morning, Justice--Judge Sotomayor.
Yesterday you said you would take a look at Baker v. Nelson, so
I will ask this question. You said you hadn't read Baker in a
long time and would report back. You added that if Baker was
precedent, you would uphold it based upon stare decisis
consistent with your stance in cases like Kato, Roe v. Wade,
Griswold, and many others that you mentioned this week.
Baker involved an appeal from the Minnesota Supreme Court
which held that a Minnesota law prohibiting same sex marriage
did not violate the First, the Eighth, the Ninth, or the 14th
amendment to the Constitution. The Supreme Court in a very
short ruling concluded on its merits that, ``The appeal is
dismissed for want of substantial Federal question.'' Baker
remains on the books as precedent. Will you respect the Court's
decision in Baker based upon stare decisis? And if not, why
not?
Judge Sotomayor. As I indicated yesterday, I didn't
remember Baker, and if I had studied it, it would have been in
law school. You raised a question, and I did go back to look at
Baker. In fact, I don't think I ever read it, even in law
school.
Baker was decided at the time where jurisdiction over
Federal questions was mandatory before the Supreme Court, and
the disposition by the Supreme Court, I believe was what you
related, Senator, which is a dismissal of the appeal raised on
the Minnesota statute.
What I have learned is the question of--it's what the
meaning of that dismissal is, is actually an issue that's being
debated in existing litigation. As I indicated yesterday, I
will follow precedent according to the doctrine of stare
decisis. I can't prejudge what that precedent means until the
issue comes before--what a prior decision of the Court means
and its applicability to a particular issue is until that
question is before me as a judge--or a Justice, if that should
happen.
So, at bottom, because the question is pending before a
number of courts, the ABA would not permit me to comment on the
merits of that. But as I indicated, I affirm that with each
holding of the Court, to the extent it is pertinent to the
issues before the Court, it has to be given the effects of
stare decisis.
Senator Grassley. Am I supposed to interpret what you just
said as anything different than what you said over the last 3
days in regard to Kato or Roe or Griswold or any other
precedent you said, or precedents? Or would it be exactly in
the same tone as you mentioned in previous days with previous
precedents under stare decisis?
Judge Sotomayor. Well, those cases have holdings that are
not open to dispute. The holdings are what they are. Their
application to a particular situation will differ on what facts
those situations present. The same thing with the Nelson case,
which is what does the holding mean, and that's what I
understand is being litigated, because it was a one-line
decision by the Supreme Court, and how it applies to a new
situation is what also would come before a court.
Senator Grassley. Okay. My last question for your
appearance before our Committee involves a word I don't think
that showed up here yet--``vacuums''--and it is a question that
I asked Judge Roberts and Justice Alito, and it comes from a
conversation I had, a dialog I had at a similar hearing when
Judge Souter was before us, now Justice Souter, involving the
term ``vacuums in law.'' And I think the term ``vacuums in
law'' comes from Souter himself, as I will read to you in just
a moment.
I probed Judge Souter about how he would interpret the
Constitution and statutory law. In his response, Justice Souter
talked about the Court filling vacuums left by Congress, and
there are several quotes that I can give you from 19--I guess
it was 1990, but I will just read four or five lines of Judge
Souter speaking to this Committee:
``Because if, in fact, the Congress will face the
responsibility that goes with its 14th Amendment powers, then
by definition, there is, to that extent, not going to be a kind
of vacuum of responsibility created, in which the courts are
going to be forced to take on problems which sometimes, in the
first instance, might be better addressed by the political
branches of Government.''
Both prior to that and after that, Judge Souter talked a
lot about maybe the courts needed to fill vacuums.
Do you agree with Justice Souter, is it appropriate for the
courts to fill vacuums in the law? And let me quickly follow it
up. Do you expect that you will fill in vacuums in the law left
by Congress if you are confirmed to be an Associate Justice?
Judge Sotomayor. Senator Grassley, one of the things I say
to my students when I'm teaching brief writing, I start by
saying to them, ``It's very dangerous to use analogies because
they're always imperfect.'' I wouldn't ever use Justice
Souter's words because they're his words, not mine.
I try always to use--and this is what I tell my students to
do, is use simple words. Explain what you're doing without
analogy. Just tell them what you're doing. And what I do is not
described in the way--or I wouldn't describe it in the way
Justice Souter did.
Judges apply the law, they apply the holdings of precedent,
and they look at how that fits into the new facts before them.
But you're not creating law. If that was an intent that Justice
Souter was expressing--and I doubt it--that's not what judges
do. Judges do what I've just described, and that's not in my
mind acting for Congress. It is interpreting Congress' intent
as expressed in a statute and applying it to the new situation.
Senator Grassley. Thank you.
I am done, Mr. Chairman.
Chairman Leahy. Thank you very much, Senator Grassley.
Senator Kyl, did you want another round?
Senator Kyl. Yes, thank you, Mr. Chairman. I am not sure
how long this will take, but, Judge, I think maybe we are--to
use the President's analogy that we talked about in my very
first question to you, we may be in about the 25th mile of the
marathon, and I might even be persuaded to have a little
empathy for this last mile here. I think you are just about
done.
I wanted to go over three quick things, if I could. The
first is the exchange that we had this morning regarding the
decision in Ricci in which you insisted that you were bound by
Supreme Court and Second Circuit precedent. I quoted from the
Supreme Court decision to the effect that I believe that that
contradicted your answer.
If you have anything different to say than what you said
this morning, I wanted to give you another opportunity to say
it. We don't need to re-plow the same ground. But is there
anything different that you would like to offer on that?
Judge Sotomayor. Senator, after each round, I go to the
next moment. Without actually looking at the transcript, I
couldn't answer that question. It is just impossible to right
now. I'm glad you're giving me the opportunity, but I would
need a specific question as to something I said and what I
meant before I could respond.
Senator Kyl. All right. Since we will probably have a few
questions as follow-up in writing and you will be providing us
answers to those, maybe the best thing is just to ask a general
question, or if there is something specific that I can related
it to, and then you can respond in that way.
Judge Sotomayor. Thank you, sir.
Senator Kyl. You are very welcome.
Now, the second question has to do with the Second
Amendment. In the Maloney case, you held that it was not
incorporated into the 14th Amendment, and what--well, maybe I
should ask you what that means. Let me ask then two separate
situations as a practical matter.
If the Supreme Court does not review that issue, then is it
the case that at least in the Second Circuit and the Seventh
Circuit, the States that are in the Seventh and Second Circuit,
those States could pass laws that restrict or even prohibit
people from owning firearms?
Judge Sotomayor. I did not hold it was not incorporated. I
was on a panel that----
Senator Kyl. Fair enough.
Judge Sotomayor.--viewed Supreme Court precedent and Second
Circuit precedent as holding that fact.
Senator Kyl. Right.
Judge Sotomayor. You can't talk in an absolute. There
always has to be a reason for why a State acts, and there also
has to be a reason for the extent of the regulation the State
passes. And so the question in Maloney for us was a very narrow
question, which was: Are these nunchuk sticks--and I have
described them previously as these martial arts sticks tied
together by a belt that when you swing them, if somebody comes
by, there could be, if not serious, deadly force in some
situations--whether the State had a reason recognized in law
for determining that it was illegal to own those sticks.
The next issue that would come up by someone who challenged
the regulation would be, What's the nature of the regulation
and how does it comport with the reason the State gives for the
actions it did?
So absolute regulation is not what I would answer. I would
answer what this----
Senator Kyl. Let me--excuse me.
Judge Sotomayor.--regulation is.
Senator Kyl. I appreciate your answer. What would be the
test that would be applied by a court in the event that a State
said because of the danger that firearms present to others, we
are going to require that only law enforcement personnel can
own firearms in our State? And someone challenged that as an
affront to their rights, they would say the Federal Government
can't take that right away from us because of the Second
Amendment. What would the test be that the Court would apply to
analyze the regulation of the State?
Judge Sotomayor. Well, that's very similar, although not
exactly, if I understood it, to Heller, the facts in Heller.
And the Court there said that the regulation in D.C. was
broader than the interest asserted.
That question in a different State would depend on the
circumstances of its barring----
Senator Kyl. Well, excuse me for interrupting. Is there no
standard--I mean, we are familiar with strict scrutiny, the
reasonable basis test and so on. Is there a standard of which
you are aware that the Court would use to examine the State's
right to impose such a restriction given that the Second
Amendment would be deemed not incorporated?
Judge Sotomayor. In Maloney, the Court addressed whether
there was a violation of the equal protection statute--equal
protection of the 14th Amendment, and determined that rational
basis review--now that I understand that you are asking about--
--
Senator Kyl. Sure. I am sorry. I didn't----
Judge Sotomayor.--a standard of review that's----
Senator Kyl. Now, of the tests that the Court applies
traditionally, the rational basis is the least difficult of
States to meet in justifying a regulation, is it not?
Judge Sotomayor. I'm not going to be difficult with you.
It's the one where you don't need an exact fit between the
exact injury that you are seeking to remedy in the legislation.
Senator Kyl. Could I----
Judge Sotomayor. So it does have more----
Senator Kyl. Flexibility for the state?
Judge Sotomayor. Well, ``flexibility'' is the wrong--more
deference to congressional findings about what----
Senator Kyl. Or State law.
Judge Sotomayor. Exactly.
Senator Kyl. Right. You know the general rule that the
rational basis test is the least intrusive on a State's ability
to regulate, whereas strict scrutiny is the most intrusive on
the State's ability. Is that a fair characterization?
Judge Sotomayor. It's a fair characterization that when you
have strict scrutiny, the Government's legislation must be very
narrowly tailored.
Senator Kyl. Right. So----
Judge Sotomayor. In rational basis there is a broader
breadth for the States to act.
Senator Kyl. So wouldn't it be correct to say that as
between the application of the Second Amendment to the District
of Columbia, for example, compared to a situation in which a
State or a city imposed a regulation on the control of
firearms, that it would be much more likely that the Court
would uphold the State's ability or the city's ability to
regulate that than it would--in the abstract I am talking about
here--than it would a Federal attempt to regulate it under the
Second Amendment?
Judge Sotomayor. That's the problem within the abstract,
because what the Court would look at is whatever legislature--
State legislative findings there are in the fit between those
findings and the legislation.
Senator Kyl. Right, and I appreciate that you are not going
to--without knowing the facts of every case, you can't opine.
But just as a general proposition, obviously if the amendment
is incorporated, it will be much more difficult for a
government to impose a standard than if it is not incorporated.
Judge Sotomayor. Well, the standard of review, even under
the incorporation doctrine, was actually not decided in Heller,
and that issue wasn't resolved. So what that answer will be is
actually an open question that I couldn't even discuss in a
broad term other than to just explain----
Senator Kyl. All right. Again, to interrupt, because we are
less than 2 minutes now. If Senator Leahy says, gee, in
Vermont, he is not worried about the fact that the Second
Amendment isn't incorporated, maybe if I lived in New York or
Massachusetts or some other State I would be worried. The
question I guess I would ask here is: Can you understand why
someone who would like to own a gun would be concerned that if
the amendment is not deemed incorporated into the 14th
Amendment as a fundamental right, that it would be much more
likely that the State or city in which that individual lived
could regulate his right to own a firearm?
Judge Sotomayor. Very clear to me from the public
discussions on this issue that that is a concern for many
people.
Senator Kyl. Final question. You are familiar--this goes to
the foreign law issue. You are familiar with the difference in
the treatment of foreign law by the U.S. Supreme Court in
Kennedy v. Louisiana on the one hand and in Roper v. Simmons on
the other hand. In Roper, the Court ruled it was cruel and
unusual to apply the death penalty and drew substantially on
foreign law. In Kennedy v. Louisiana, an adult was convicted of
raping an 8-year-old child. And the same five Justices who
wrote the opinion in Roper ruled that it was cruel and unusual
to sentence the individual to death, but cited no foreign law
whatsoever.
Some have said that a discussion of foreign law was left
out of the Kennedy case because it actually cut against the
majority's opinion. What do you think?
Judge Sotomayor. I can't speak for what they did. I can
only do what you did, which is to describe what the courts did
and what they said. It's impossible for me to speak about why a
particular court acted in a particular way or why a particular
Justice analyzed an issue outside of what the opinion says.
Senator Kyl. I will just tell you my view is it kind of
tells me that if a court can find some foreign law that
supports its opinion, it might use it. If the opinion is on the
other side, then it doesn't. In my view, that is one of the
problems with using foreign law, and I gather from what you
said earlier you don't think the Court should use foreign law
either except in cases of treaty and other similarly
appropriate cases.
Judge Sotomayor. I do not believe that foreign law should
be used to determine the result under constitutional law or
American law, except where American law directs.
Senator Kyl. Thank you very much. Thank you, Judge.
Chairman Leahy. Thank you.
Senator Graham.
Senator Graham. Thank you, Judge, I guess we do get to talk
again. When you look at the fundamental right aspect of the
Second Amendment, you will be looking at precedent, you will be
looking at our history, you will be looking at a lot of things.
Hopefully, you talk to your godchild, who is an NRA member.
You can assimilate your view of what America is all about
when it comes to the Second Amendment. But one thing I want you
to know is that Russ Feingold and Lindsey Graham have reached
the same conclusion. So that speaks strong of the Second
Amendment, because we do not reach the same conclusion a lot.
So I just want you to realize that this fundamental right
issue of the Second Amendment is very important to people
throughout the country, whether you own a gun or not, and it is
one of those things that I think, when you look at it, you will
find that America, unlike other countries, has a unique
relationship with the Second Amendment.
Today, Khalid Sheikh Mohammed is appearing in a military
tribunal in Guantanamo Bay, Cuba. He will be appearing before a
military judge and he will be represented by military lawyers
and there will be a military prosecutor.
The one thing I want to say here is that I have been a
judge advocate, a member of the military legal community, for
well over 25 years and to America and the world who may be
watching this, I have nothing but great admiration and respect
for those men and women who serve in our judge advocate corps
who will be given the obligation by our nation to render
justice against people like Khalid Sheikh Mohammed.
I just want to say this, also, on this historic day. To
those who wonder why we do this, why do we give him a trial?
Why are we so concerned about him having his day in court? Why
do we give him a lawyer when we know what he would do to our
people in his hands?
I would just like to say that it makes us better than him.
It makes us stronger for us to give the mastermind of 9/11 his
day in court, represented by counsel, and any verdict that
comes his way will not be based on prejudice or passion or
religious bigotry. It will be based on facts.
Now, let us talk about what this nation is facing. This
Congress, Judge, is trying to reauthorize the Military
Commission Act, trying to find a way to bring justice to the
enemies of this country in a way that will make us better in
the eyes of the world and, also, make us safer here at home.
Have you had an opportunity to look at the Boumediene,
Hamdan, Hamdi, Rasul cases?
Judge Sotomayor. I have.
Senator Graham. You will be called upon in the future, if
you get on the court, to pass some judgment over the enactments
of Congress. When it comes to civilian criminal law, do you
know of any concept in civilian law that would allow someone to
be held, in criminal law, indefinitely without trial?
Judge Sotomayor. When you're talking about civilian
criminal law, you're talking about----
Senator Graham. Domestic criminal law.
Judge Sotomayor.--domestic criminal prosecution.
Senator Graham. Right.
Judge Sotomayor. After conviction, defendants are often
sentenced----
Senator Graham. I am talking about you are held in jail
without a trial.
Judge Sotomayor. The Speedy Trial Act and there are
constitutional principles that require a speedy trial. So in
answer, no, there is no----
Senator Graham. That is a correct statement of the law,
Judge, in my opinion. You cannot hold someone in domestic
criminal settings indefinitely without trial.
Under military law, the law of armed conflict, is there any
requirement to try, in a court of law, every enemy prisoner?
Judge Sotomayor. There, you have an advantage on me,
because I--I'm sorry.
Senator Graham. Fair enough. The point I am trying to make,
and check if I am wrong, you will have some time to do this, as
I understand military law, if we, as a nation, one of our
airman is downed on a foreign land, held by an adversary, it is
my understanding we cannot demand, under the Geneva Convention,
that that airman or American soldier go to a civilian court.
That is not the law. If we have a pilot in the hands of the
enemy, there is no requirement of the detaining force to take
that airman before a civilian judge. I think that is the law.
There is no requirement under military or the law of armed
conflict to have civilian judges review the status of our
prisoners. That is a right that we do not possess.
The question for the country and the world, if people
operate outside the law of armed conflict that do not wear
uniforms, are they going to get a better deal than people that
play by the rules?
As we discuss these matters, I hope you take into account
that there is no requirement to try everyone held as an enemy
prisoner. Do you believe that there is a requirement in the law
that at a certain point in time, that a prisoner has to be
released, an enemy prisoner, just through the passage of time?
Judge Sotomayor. I can only answer that question narrowly,
and narrowly because the court's holdings have been narrow in
this area. First, military commissions and proceedings under
them have been a part of the country's history. And so there's
no question that they are appropriate in certain circumstances.
Senator Graham. And, Judge, they will have to render
justice. They will have to meet the standards of who we are. My
point to some critics on the right who have objected to my view
that we ought to provide more capacity is that wherever the
flag flies, in whatever courtroom, there is something attached
to that flag.
So we are going to work hard to create a military
commission consistent with the values of this country. But I
just want to let you know that under traditional military law,
it is not required to let someone go who is properly detained
as part of the enemy force because of the passage of time.
Judge, it would be crazy for us to capture someone, give
them adequate due process, independent judicial review, and the
judges agree with the military, ``You're part of al Qaeda, you
represent a danger,'' and say, at a magic point in time, ``Good
luck, you can go now.''
The people that we are fighting, if some of them are let
go, they are going to try to kill us all and it does not make
us a better nation to put a burden upon ourselves that no one
else has ever accepted.
So my goal, working with my colleagues, is to have a
rational system of justice that will make sure that every
detainee has a chance to make the argument, ``I am being
improperly held,'' have a day in court, have a review by an
independent judiciary, but we do not take it so far that we can
not keep an al Qaeda member in jail until they die, because
some of them deserve to be in jail until they die.
I want the world to understand that America is not a bad
place because we will hold al Qaeda members under a process
that is fair, transparent, until they die. My message to those
who want to join this organization or thinking about joining it
is that you can get killed if you join and you may wind up
dying in jail.
As this country and this Congress comes to grips with how
to deal with an enemy that does not wear a uniform, that does
not follow any rules, that would kill everybody they could get
their hands on in the name of religion, that not only we focus,
Senator Whitehouse, on upholding our values, that we focus on
the threat that this country faces in an unprecedented manner.
So, Judge, my last words to you will be if you get on this
court and you look at the Military Commission Act that the
Congress is about pass, when you look at whether or not habeas
should be applied to a wartime battlefield prison, please
remember, Judge, that we are not talking about domestic
criminals who robbed a liquor store.
We are talking about people who have signed up for a cause
every bit as dangerous as any enemy this country has ever faced
and that this Congress, the voice of the American people who
stand for reelection has a very difficult assignment on its
hands.
There are lanes for the executive branch, the judicial
branch and the congressional branch, even in a time of war.
Please, Judge, understand that 535 Members of Congress cannot
be the commander in chief and that unelected judges cannot run
the war. Thank you and Godspeed.
Judge Sotomayor. Thank you, Senator.
Chairman Leahy. Senator Cornyn.
Senator Cornyn. You are almost through, Judge. I just want
to ask three relatively quick items that I was not able to get
to earlier, just for your brief comment.
You wrote in 2001 that neutrality and objectivity in the
law are a myth. You said that you agreed that ``there is no
objective stance, but only a series of perspectives, no
neutrality, no escape from choice in judging.'' Would you
explain what that means?
Judge Sotomayor. In every single case, and Senator Graham
gave the example in his opening statement, there are two
parties arguing different perspectives on what the law means.
That's what litigation is about.
And what the judge has to do is choose the perspective
that's going to apply to that outcome. So there is a choice.
You're going to rule in someone's favor. You're going to rule
against someone's favor.
That's the perspective of the lack of neutrality. It's that
you can't just throw up your hands and say I'm not going to
rule. Judges have to choose the answer to the question
presented to the court. And so that's what that part of my
talking was about, that there is choice in judging. You have to
rule.
Senator Cornyn. You characterized, in your opening
statement, that your judicial philosophy is one of fidelity to
the law. Would you agree that both the majority and the
dissenting justices in last year's landmark gun rights case,
the D.C. v. Heller case, were each doing their best to be
faithful to the text and the history of the Second Amendment?
In other words, do you believe that they were exhibiting
fidelity to the law?
Judge Sotomayor. I think both were looking at the legal
issue before them, looking at the text of the Second Amendment,
looking at its history, looking at the court's precedent over
time and trying to answer the question that was before them.
Senator Cornyn. Do you think it is fair to characterize the
five justices who affirmed the right to keep and bear arms as
engaged in right-wing judicial activism?
Judge Sotomayor. I don't use that word for judging. I
eschew labels of any kind. That's why I don't like analogies
and why I prefer, in brief-writing, to talk about judges
interpreting the law.
Senator Cornyn. What about the 10 Democratic Senators,
including Senator Feingold, who has been mentioned earlier, who
joined the brief, the amicus brief to the U.S. Supreme Court
urging the court to recognize the individual right to keep and
bear arms? Do you think, by encouraging an individual right to
keep and bear arms, that somehow these Senators were
encouraging the court to engage in right-wing judicial
activism?
Judge Sotomayor. I don't describe people's actions with
those labels.
Senator Cornyn. I appreciate that. You testified earlier
today that you would not use foreign law in interpreting the
Constitution and statutes. I would like to contrast that
statement with an earlier statement that you made back in
April, and I quote, ``International law and foreign law will be
very important in the discussion of how to think about
unsettled issues in our legal system. It is my hope that judges
everywhere will continue to do this.''
Let me repeat the words that you used 3 months ago. You
said ``very important'' and you said ``judges everywhere.''
This suggests to me that you consider the use of foreign law to
be broader than you indicated in your testimony earlier today.
Do you stand by the testimony you gave earlier today, do
you stand by the speech you gave 3 months ago, or can you
reconcile those for us?
Judge Sotomayor. Stand by both, because the speech made
very clear, in any number of places, where I said you can't use
it to interpret the Constitution or American law. I went
through--not a lengthy, because it was a shorter speech, but I
described the situations in which American law looks to foreign
law by its terms, meaning it's counseled by American law.
My part of the speech said people misunderstand what the
word ``use'' means and I noted that ``use'' appears to people
to mean if you cite a foreign decision, that means it's
controlling an outcome or that you are using it to control an
outcome, and I said no.
You think about foreign law as a--and I believe my words
said this. You think about foreign law the way judges think
about all sources of information, ideas, and you think about
them as ideas both from law review articles and from state
court decisions and from all the sources, including Wikipedia,
that people think about ideas. Okay.
They don't control the outcome of the case. The law compels
that outcome and you have to follow the law. But judges think.
We engage in academic discussions. We talk about ideas.
Sometimes you will see judges who choose--I haven't, it's
not my style, but there are judges who will drop a footnote and
talk about an idea. I'm not thinking that they're using that
idea to compel a result. It's an engagement of thought.
But the outcome--you could always find an exception, I
assume, if I looked hard enough, but in my review, judges are
applying American law.
Senator Cornyn. Your Honor, why would a judge cite foreign
law unless it somehow had an impact on their decision or their
decision-making process?
Judge Sotomayor. I don't know why other judges do it. As I
explained, I haven't. But I look at the structure of what the
judge has done and explains and go by what that judge tells me.
There are situations--that's as far as I can go.
Senator Cornyn. You said, at another occasion, that you
find foreign law useful because it ``gets the creative juices
flowing.'' What does that mean?
Judge Sotomayor. To me, I am a part academic. Please don't
forget that I taught at two law schools. I do speak more than I
should and I think about ideas all the time. And so for me,
it's fun to think about ideas.
You sit in a lunchroom among judges and you'll often hear
them say, ``Did you see what that law school professor said''
or ``did you see what some other judge wrote and what do you
think about it,'' but it's just talking. It's sharing ideas.
What you're doing in each case, and that's what my speech
said, is you can't use foreign law to determine the American
Constitution. It can't be used either as a holding or
precedent.
Senator Cornyn. Do you agree with me that if the American
people want to change the Constitution, that is a right
reserved to them under the Constitution to amend it and change
it rather than to have judges, under the guise of interpreting
the law, in effect, change the Constitution by judicial fiat?
Judge Sotomayor. In that regard, the Constitution is
abundantly clear. There is an amendment process set forth. It
controls how you change the Constitution.
Senator Cornyn. I would just say if academics or
legislators or anybody else who has got creative juices flowing
from the invocation of foreign law, if they want to change the
Constitution, my contention is the most appropriate way to do
that is for the American people to do it through the amendment
process rather than for judges to do it by relying on foreign
law.
Judge Sotomayor. We have no disagreement.
Senator Cornyn. Thank you very much, Your Honor.
Chairman Leahy. Thank you. Senator Coburn.
Senator Coburn. Thank you, Mr. Chairman. I am going to go
into an area that we have not covered, no one has covered yet.
I am reminded of Senator Sessions talking to you about pay.
I would predict to you, in about 15 or 18 years, judicial
pay, we will not be able to pay your salary. Nine years from
now, we are going to have $1 trillion worth of interest on the
national debt. It is not very funny.
What it does is it undermines the freedom and security of
our children and our grandchildren. I want to go to Madison.
Madison is the father of our Constitution.
I want to get your take on three issues; one, the commerce
clause; two, the general welfare clause; and, No. 3, the 10th
Amendment. I don't know if you have read the Federalist Papers,
but I find them very interesting to give insight into what our
founders meant, what they said when they wrote our
Constitution.
In Federalist 51, Madison expressed the importance of a
restrained government by stating, ``In framing a government
which is to be administered by men over men, the great
difficulty lies in this, you must first enable the government
to control the governed, and, in the next place, oblige to
control itself.''
Do you believe that our Federal courts enable the Federal
Government to exceed its intended boundaries by interpreting
Article I's commerce clause and necessary and proper clause to
delegate virtual unlimited authority to the Federal Government?
Judge Sotomayor. The Supreme Court, in these two rulings or
one, has said there are limits to all powers set forth in the
Constitution and the question for the court in any particular
situation is to determine whether whatever branch of government
or state is acting within the limits of the Constitution.
Senator Coburn. Let me read you another Madison quote,
again, the father of our Constitution. ``If Congress can employ
money indefinitely to the general welfare and are the sole and
supreme judges of general welfare, they may take the care of
religion into their own hands; they may appoint teachers in
every state, county and parish and pay them out of the public
treasury; they may take into their own hands the education of
our children, establishing in like manner schools throughout
the union; they may assume the provision for the poor; they may
undertake the regulation of all roads other than post roads.''
``In short, everything from the highest object of state
legislation down to the most minute object of police would be
thrown under the power of Congress. Were the power of Congress
to be established and the latitude contended for, it would
subvert the very foundations and transmute the very nature of
the limited government established by this Constitution and the
American people.''
I guess my question to you is do you have any concerns, as
we now have a $3.6 trillion budget, $11.4 trillion worth of
debt, $90 trillion worth of unfunded obligations that are going
to be placed on the backs of our children, that maybe some
reining in of Congress in terms of the general welfare clause,
the commerce clause, and reinforcement of the 10th Amendment
under its intended purposes by our founders, which said that
everything that was not specifically listed in the enumerated
powers was left to the states and the people, do you have any
concerns about where we are heading in this nation and the
obligations of the Supreme Court maybe to relook at what
Madison and our founders intended as they wrote these clauses
into our Constitution?
Judge Sotomayor. One of the beauties of our Constitution is
the very question that you ask me, is the dialog that's left in
the first instance to this body and to the House of
Representatives.
The answer to that question is not mine in the abstract.
The answer to that question is a discussion that this
legislative body will come to an answer about as reflected in
laws it will pass. And once it passes those laws, there may be
individuals who have rights to challenge those laws and will
come to us and ask us to examine what the Constitution says
about what Congress did.
But it is the great beauty of this nation that we do leave
the lawmaking to our elected branches and that we expect our
courts to understand its limited role, but important role in
ensuring that the Constitution is upheld in every situation
that's presented to it.
Senator Coburn. I believe our founders thought that the
Supreme Court would be the check and balance on the commerce
clause, the general welfare clause, and the insurance of the
10th Amendment, and that is the reason I raised those issues
with you.
I wonder if you think we have honored the plain language of
the Constitution and the intent of the founders with regard to
the limited power granted to the Federal Government.
Judge Sotomayor. That's almost a judgment call. I don't
know how to answer your question, because it would seem like it
would lead to the natural question, did the courts do this in
this case, and that would be opining on a particular view of
the case. And that case would have a holding and I would have
to look at that holding in the context of another case.
I'm attempting to answer your question, Senator, but our
roles and the ones we choose to serve, your job is wonderful.
It is so, so important. But I love that you're doing your job
and I love that I'm doing my job as a judge. I like mine
better.
Senator Coburn. I think I would like yours better, as well,
although I doubt that I could ever get to the stage of a
confirmation process.
Well, let me just end up with this. People call me simple
because I really believe this document is the genesis of our
success as a country and I believe these words are plainly
written and I believe we ignore them at our peril.
My hope is that the Supreme Court will relook at the intent
of our founders and the 10th Amendment, where they guaranteed
that everything that wasn't spelled out specifically for the
Congress to do was explicitly reserved to the states and to the
people.
To do less than that undermines our future and all we have
to do is take a little snapshot of where we are today
economically, financially and leadership-wise, to understand we
ignored their plain words and we find ourselves near bankruptcy
because of it.
I thank you, Mr. Chairman.
Chairman Leahy. Thank you. It is almost over. There is one
question that I withheld the balance of my time before and I
want to make sure I ask this question, because I asked it of
Chief Justice Roberts and Justice Alito when they were before
this Committee.
As you know, in death penalty cases, it takes five justices
to stay an execution, but only four to grant certiorari to hear
a case. You could grant certiorari to hear a case, but if the
execution is not stayed, it could become a moot point. The
person can be executed in between.
So usually if there are four justices willing to hear a
case, somebody agrees to the fifth vote to stay an execution
just as a matter of courtesy, so the cert does not become moot.
So the person is not executed in the few weeks that might be in
between granting of cert and the hearing of the case.
Now, both Chief Justice Roberts and Justice Alito agreed
that this rule was sensible, the rule of five or the courtesy
fifth. It appears, according to a study done by the New York
Times, that very reasonable rule and the rule that both Chief
Justice Roberts and Justice Alito said was very reasonable, and
I think the majority of us on the Committee thought it was
reasonable, they suggest that that rule has not been adhered
to, the rule of four, because there have been a number of cases
where four justices voted for cert and wanted to stay the
execution, but the fifth would not and the person was executed
before the case was heard.
If you were on the Supreme Court, and this is basically the
same thing I asked Justice Roberts and Justice Alito, if you
were on the Supreme Court, four of your fellow justices said
they would like to consider a death penalty case and they asked
you to be a fifth vote to stay the execution, even though you
did not necessarily plan to vote for cert, how would you
approach that issue?
Judge Sotomayor. I answer the way that those two justices
did, which is I would consider the rule of the fifth vote in
the way it has been practiced by the court. It has a sensible
basis, which is that if you don't grant the stay, an execution
can happen before you reach the question of whether to grant
certiorari or not.
Chairman Leahy. Well, I thank you. I have applauded both
Chief Justice Roberts and Justice Alito for their answers. It
appears that perhaps somewhere between the hearing room and the
Supreme Court, their minds changed.
Now, in 2007, Christopher Scott Emmett was executed even
though four justices had voted for a stay of execution. Justice
Stevens wrote a statement, joined by Justice Ginsberg, calling
for a routine practice of staying executions scheduled in
advance of our review of the denial of a capital defendant's
first application--first application--for a Federal writ of
habeas corpus.
I am not asking for a commitment on what Justices Stevens
and Ginsberg said, but is that something that ought to at least
be considered?
Judge Sotomayor. Unquestionably. As I said, there is an
underlying reason for that practice.
Chairman Leahy. And there is an understanding that when the
case is reviewed, the sentence may well be upheld and the
execution will go forward. But this is on the various steps for
that hearing.
Judge Sotomayor. Yes, sir.
Chairman Leahy. Thank you. Senator Sessions.
Senator Sessions. Just briefly, I thank you again for your
testimony. I know judges come before these committees and they
make promises and they mean those things and then, if they are
lucky, they get a lifetime appointment and I think, most
likely, their judicial philosophy will take over as the years
go by, 10, 20, 30 years on the bench.
So this is an important decision for us to reach and to
consider and we will all do our best. I hope you felt that it
has been a fairly conducted hearing. That has been my goal.
Judge Sotomayor. Thank you, Senators, to all Senators. I
have received all the graciousness and fair hearing that I
could have asked for and I thank you, Senator, for your
participation in this process and in ensuring that.
Senator Sessions. Thank you. You are very courteous. I
think, for the record, a number of significant articles should
be in the record.
Chairman Leahy. Without objection.
Senator Sessions. One from the Washington Post on July 9,
``Uncommon Detail.'' Wall Street Journal, ``Defining Activism
Down,'' July 15. New York Times, ``New Scrutiny on Judge's Most
Controversial Case'' by Adam Liptak. New York Times, ``Nominee
Rulings are Exhaustive, But Often Narrow.'' The Ninth Justice,
``How Ricci Almost Disappeared.'' The Ninth Justice, ``Justices
Reject Sotomayor Position 9-0.'' And the Wall Street Journal,
``The Wise Latina'' article of June 15, which is an important
analysis.
[The articles appear as a submission for the record.]
Senator Sessions. Mr. Chairman, for the record, I would
also offer a letter from Sandra Froman, former president of
National Rifle Association, and a series of other people who
cosigned that letter, making this point. I think it is
important, Sandra Froman, herself a lawyer.
``Surprisingly, Heller was a 5:4 decision, with some
justices arguing that the Second Amendment does not apply to
private citizens or, if it does, even a total gun ban could be
upheld if a legitimate government interest could be found. The
dissenting justices also found D.C.'s absolute ban on handguns
within the home to be a reasonable restriction. If this had
been the majority view, then any gun ban could be upheld and
the Second Amendment would be meaningless.''
It goes on to say, ``The Second Amendment survives today by
a single vote in the Supreme Court. Both its application to the
states and whether there will be a meaningful strict standard
of review remain to be decided. Justice Sotomayor has revealed
her views on these issues and we believe they are contrary to
the intent and purposes of the Second Amendment and the Bill of
Rights. As the Second Amendment leaders, we are deeply
concerned about preserving all fundamental rights for current
and future generations. We strongly oppose this nominee.''
I offer that and a letter from the Americans United for
Life, a 60-plus association, North Carolina Property
Association.
[The information appear in the index.]
Chairman Leahy. We will hold the record open until 5
tonight for any other material people wish to submit to the
record.
Senator Sessions. Thank you, Mr. Chairman. And thank you
for your courtesy throughout.
Chairman Leahy. Thank you. We will also hold the record
open until 5 tomorrow for additional questions that Senators
wish to ask.
Now, Judge Sotomayor, this hearing has extended over 4
days. On the first day, you listened to our opening statements
rather extensively. You shared with us a very concise statement
about your own fidelity to the law and I suspect it will be in
law school texts in years to come.
Over the last 3 days, you have answered our questions from
Senators on both sides of the aisle. I hope I speak for all the
Senators, both Republican and Democratic, on this Committee
when I thank you for answering with such intelligence, grace
and patience.
I also thank the members of your family for sitting here,
also, with such intelligence, grace, and especially patience.
During the course of this week, almost 2,000 people have
attended this hearing in person, 2,000. Millions more have seen
it, heard it or read about it thanks to newspapers and blogs,
television, cable, Webcasting. I think through these
proceedings, the American people have gotten to know you.
Even though I sat on two different confirmation hearings
for you over the past 17 years, I feel I have gotten to know
you even better. The President told the American people in his
Internet address back in May, as a justice of the Supreme
Court, you would ``bring knowledge and experience acquired over
the course of a brilliant legal career, with the wisdom
accumulated over the course of an extraordinary journey, a
journey defined by hard work, fierce intelligence, and enduring
faith in America, all things are possible.''
We bore witness to that this week. Experience and wisdom
will benefit all Americans. When you walk under that piece of
Vermont marble over the door of the Supreme Court, speaking of
equal justice under law, I know that will guide you.
Judge Sotomayor, thank you, Godspeed.
Judge Sotomayor. Thank you all.
Chairman Leahy. We stand in recess for 10 minutes.
[Whereupon, the Committee was recessed at 1:24 p.m.]
AFTER RECESS
[1:42 p.m.]
Senator Whitehouse. Good afternoon, everyone. The Ranking
Member has joined us, and the hearing will now come to order.
We have a considerable number of witnesses to get through
today, so I would ask Ms. Askew and Ms. Boies and the witnesses
who will follow them to please be scrupulous about keeping your
oral statements to 5 minutes or under. Your full written
statement will be put in the record, and Senators will each
have 5 minutes to ask questions of each panel. Along with
Ranking Member Sessions, I am very glad to welcome ABA
witnesses Kim Askew and Mary Boies.
Kim Askew is the Chair of the ABA Standing Committee on the
Federal Judiciary, and Mary Boies is the ABA Standing
Committee's lead evaluator on its investigation into Judge
Sotomayor's qualifications to be an Associate Justice on the
Supreme Court of the United States. The Ranking Member and I
both look forward to their testimony, and if I could ask them
please to stand and be sworn, we will begin.
Do you affirm that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Ms. Askew. I do.
Ms. Boies. I do.
Senator Whitehouse. Please be seated. You may proceed with
your statements.
STATEMENT OF KIM J. ASKEW, ESQ., CHAIR, STANDING COMMITTEE ON
THE FEDERAL JUDICIARY, AMERICAN BAR ASSOCIATION, ACCOMPANIED BY
MARY M. BOIES, MEMBER, STANDING COMMITTEE ON THE FEDERAL
JUDICIARY, AMERICAN BAR ASSOCIATION
Ms. Askew. Thank you. Good afternoon and thank you for
having us. I am Kim Askew of Dallas, Texas, Chair of the
Standing Committee on the Federal Judiciary. This is Mary
Boies. Mary Boies is our Second Circuit representative, and as
you mentioned, she was the lead evaluator on the investigation
of Judge Sonia Sotomayor. We are honored to appear here today
to explain the Standing Committee's evaluation of this nominee.
The Standing gave her its highest rating and unanimously found
that she was ``Well Qualified.''
For 60 years, the Standing Committee has conducted a
thorough, non-partisan peer review in which we do not consider
the ideology of the nominee, and we have done that with every
Federal judicial nominee. We evaluate the integrity, the
professional competence, and the judicial temperament of the
nominee. The Standing Committee does not propose, endorse, or
recommend nominees. Our sole function is to evaluate the
professional qualifications of a nominee and then rate the
nominee either ``Well Qualified,'' ``Qualified,'' or ``Not
Qualified.''
A nominee to the Supreme Court of the United States must
possess exceptional professional qualifications--that is, a
high degree of scholarship, academic talent, analytical and
writing ability, and overall excellence. And because of that,
our investigations of Supreme Court nominees is more extensive
than the nominations to the lower Federal courts and are
procedurally different in two ways.
First, all circuit members participate in the evaluations.
An investigation is conducted in every circuit, not just the
circuit in which the nominee resides.
Second, in addition to the Standing Committee reading the
writings of the nominee, we commission three reading groups of
distinguished scholars and practitioners who also review the
nominee's legal writings and advise the Standing Committee.
Georgetown University Law Center and Syracuse University School
of Law formed reading groups this year, and these groups were
comprised of professors who are all recognized experts in their
substantive areas of law. Our practitioners reading group was
also formed, and that group was also comprised of nationally
recognized lawyers with substantial trial and appellate
practices. All of them are familiar with Supreme Court
practices, and many have clerked for Justices on the U.S.
Supreme Court.
In connection with Judge Sotomayor's evaluation, we
initially contacted some 2,600 persons who were likely to have
relevant knowledge of her professional qualifications. This
included every United States Federal judge, State judges,
lawyers, law professors and deans, and, of course, members of
the community and bar representatives. We received 850
responses to our contacts, and we personally interviewed or
received detailed letters or emails from over 500 judges,
lawyers, and others in the community who knew Judge Sotomayor
or who had appeared before her. We also analyzed transcripts,
speeches, other materials, and, of course, Ms. Boies and I
interviewed her, and it is on that basis that we reached the
unanimous conclusion as a Standing Committee that she was well
qualified.
Her record is known to this distinguished Committee. She
has been successful as a prosecutor, a lawyer in private
practice, a judge, a legal lecturer. She has served with
distinction for almost 17 years on the Federal bench, both as a
trial court judge and an appellate judge. She has taught in two
of the Nation's leading law schools, and her work in the
community is well known.
She has a reputation for integrity and outstanding
character. She is universally praised for her diligence and
industry. She has an outstanding intellect, strong analytical
abilities, sound judgment, an exceptional work ethic, and is
known for her courtroom preparation. Her judicial temperament
meets the high standards for appointment to the Court.
The Standing Committee fully addressed the concerns raised
regarding her writings and some aspects of her judicial
temperament. Those are set forth in detail in our
correspondence to this Committee, and we ask that they be made
a part of the record.
[The information appear as a submission for the record.]
Ms. Askew. In determining that these concerns did not
detract from the highest rating of ``Well Qualified'' for the
judge, the Standing Committee was persuaded by the overwhelming
responses of lawyers and judges who praised her writings and
overall temperament.
On behalf of the Standing Committee, Ms. Boies and I thank
you for the opportunity to be present today and present these
remarks, and we are certainly available to answer any questions
you may have.
[The prepared statement of Ms. Askew appear as a submission
for the record:]
Senator Whitehouse. Thank you so much.
Ms. Boies, do you have a separate statement you wish to
make?
Ms. Boies. I do not, Senator. We are happy to answer your
questions.
Senator Whitehouse. Very good. I appreciate it.
I just want to summarize a few conclusions from the report
and then ask you a little bit about the scope of the effort
that went into it in terms of the numbers of people who were
interviewed and the duration and nonpartisan nature of the
effort, if you would.
On page 6, you conclude that Judge Sotomayor ``has earned
and enjoys an excellent reputation for integrity and
outstanding character. Lawyers and judges uniformly praised the
nominee's integrity.''
On page 11, you report that Judge Sotomayor's opinions show
``an adherence to precedent and an absence of attempts to set
policy based on the judge's personal views. Her opinions are
narrow in scope, address only the issues presented, do not
revisit settled areas of law, and are devoid of broad or
sweeping pronouncements.''
On page 13, you report that ``the overwhelming weight of
opinion shared by judges, lawyers, courtroom observers, and
former law clerks is that Judge Sotomayor's style on the bench
is: A, consistent with the active questioning style that is
well known on the Second Circuit''--and which, as a personal
aside, I will say I liked as a practitioner; ``B, directed at
the weak points in the arguments of parties to the case even
though it may not always seem that way to the lawyer then being
questioned; C, designed to ferret out relative strengths and
shortcomings of the arguments presented; and, D, within the
appropriate bounds of judging.''
And, finally, the Committee unanimously found an absence of
any bias in the nominee's extensive work. Lawyers and judges
overwhelmingly agree--this is your quote--that ``she is an
absolutely fair judge. None, including those many lawyers who
lost cases before her, reported to the Standing Committee that
they have ever discerned any racial, gender, cultural, or other
bias in her opinions, or in any aspect of her judicial
performance. Lawyers and judges commented that she is open-
minded, thoroughly examines a record in far more detail than
many circuit judges, and listens to all sides of the
argument.''
Could you tell us a little bit about the scope of the
review that took place that enabled you to reach those firm
conclusions?
Ms. Boies. Unlike with most Federal judicial nominees, in
the case of a Supreme Court nominee, the entire 15-member
Committee writes letters to the entire judiciary throughout the
country and also to lawyers throughout the country. We go
through her opinions, and we look to see what lawyers appeared
in front of her, and we write many letters to those people. In
addition, we write to, as Chair Askew said, to law school deans
and law professors. And as she mentioned, we commissioned three
reading groups of professors and practitioners. There were 25
law professors from Syracuse Law School and from Georgetown Law
Center who read her opinions, as did 11 practitioners, many of
whom themselves were former Supreme Court law clerks. And the
standards that we look at and the only standards are the
professional competence, judicial temperament, and integrity.
And each circuit member interviews all the judges and
lawyers who respond to our letters or whom they identify as
someone who knows or has worked with Judge Sotomayor. Those
interviews are then collected. I review them. The Chair and I
had a personal interview with Judge Sotomayor in her chambers
in New York. We met for over 3 hours, and we discussed with her
in detail every criticism that we had heard of her judging and
the factors that we look at.
And following that, we received the reading group reports
which were, each one, hundreds and hundreds of pages that went
through her opinions one by one. They didn't merely give an
overall summary. We read those. In addition, I read every
opinion that she wrote on the Second Circuit and many that she
wrote on the district court.
In addition, we took many of her--we, the Standing
Committee, took many of her opinions, and we divided them among
themselves so that we, too, read those opinions, not merely the
reading groups. And I think that is a snapshot of the scope of
our review, but I will give you one example, if I may, of how
we operate, and that is, we received a critical review from a
lawyer about her conduct at a particular oral argument. We
identified the date of that argument and the case. We then went
through the court records and the opinions that were written,
and we identified all of the lawyers who were involved in that
case. We identified the docket sheet from the Second Circuit
for that date so that we could identify any other lawyers who
might have been present in the courtroom even though they were
not there for that particular case. And we identified all of
the lawyers who had any argument that day, because maybe they
would have a view of the panel. And then, finally, we talked to
the other members of the panel to ask what their view was on
her judicial temperament because we had received a fairly
important criticism. And so we not only reviewed that
criticism, but we looked to see how others viewed the same
conduct.
Now, you may say that this is stacking the deck against
her, because we know we have a critical comment, and maybe she
was having a very bad day, and maybe she wasn't up to her--the
way she normally would be on the bench. But we talked to at
least ten other lawyers and another member of the panel.
Ms. Askew. And that is what the peer review process is.
Much of what you will read anecdotally, if you talk to, you
know, the legal press, you may not have personal knowledge
necessarily of what the judge does, or you may not have been
the lawyer who actually participated in that argument. The
reason we talk to lawyers is because we examine whether you
have personal knowledge of what you are telling us. We will ask
you about the case that you were in because then we can go
forward and investigate.
So we talked to all the lawyers. We talked to the judges.
In some instances, we even had the pleasure of listening to the
transcript because one of the allegations here was a lack of
temperament. That cannot always be picked up from the written
record. Luckily, we were able to find out there so we could
hear the tone and the tenor of the ``hot courtroom'' that has
been described before this Committee.
And so when we come to this distinguished Committee and say
that this was in keeping with the practice of the Second
Circuit, we have looked at it in every way that we possibly can
to ensure what took place.
Senator Whitehouse. Well, let me conclude by thanking you
for the thoroughness of your evaluation, and as I understand
it, the ultimate conclusion was to evaluate her as ``Well
Qualified,'' which is the highest available ranking, which was
unanimous, and you considered her conduct as a judge over 17
years to be, and I quote, ``exemplary.''
Ms. Boies. That is correct.
Senator Whitehouse. Thank you very much.
The Ranking Member, Senator Sessions.
Senator Sessions. Thank you, Mr. New Chairman. It is good
to be with you.
Senator Whitehouse. And you, sir.
Senator Sessions. The American Bar Association was critical
of former President Bush--well, former former President Bush--
for not asking for evaluations before the nomination was made.
President Obama followed that same process. Since that time,
have you changed your view about the viability or the
advisability of conducting the--asking the President to give
the names--a name or names before a final decision is made?
Ms. Askew. As Chair of the Committee, let me answer that.
The Committee does not take a stand on that. The ABA may take a
stand on whether it thinks it is a better idea for a President
to nominate or to pre- or post-nomination basis, but the
Standing Committee is divorced of the policy side of the ABA.
It is our position, and always has been, that we will conduct a
neutral, nonpartisan peer review whenever the President gives
us that information.
Senator Sessions. With regard to the temperament question,
there were some questions you asked about that, and I guess the
Almanac or whatever that Judge Sotomayor turned out, they have
quite a--much more negative feedback from the lawyers: ``a
terror on the bench,'' ``a bit of a bully,'' a lot of
statements like that. And yet you still gave her the highest
rating. So you talked to those people, and you are Okay with
that?
Ms. Askew. We absolutely are. And just to give you a sense,
we talked to over 500 lawyers, and not to minimize any comment,
because sometimes one criticism can be the most important
comment that we get on a nominee. But of the 500 lawyers that
we spoke to, we received comments on the temperament issue from
less than 10 lawyers. They were mostly lawyers and judges who
were outside of the Second Circuit and were not as familiar
with Second Circuit precedent.
Senator Sessions. Well, you know, I hope the Second Circuit
doesn't approve of beating up lawyers too much.
Ms. Askew. Well, they do not----
Senator Sessions. But, anyway----
Senator Whitehouse. Just enough.
Senator Sessions. Let me ask you, did you--I was troubled
by the handling of the Ricci case. That was a summary order at
first until other judges on the panel objected, and then was a
per curiam opinion. But I think the process of making that a
summary opinion was--to me, pretty much takes you back. How did
you conclude--did you look at that precisely?
Ms. Boies. We did look at that case, Senator. We do not
take a position on whether an opinion is right or is wrong.
That is not what our function is. However, we did look at the
procedure that was followed in the Ricci case, and that is a
case in which the Second Circuit panel heard full briefing and
oral argument, and following which the panel--which was not
presided over by Judge Sotomayor, but the panel decided to
adopt, in effect, the district court ruling because they
affirmed the ruling and they agreed with its reasoning, and
they did not----
Senator Sessions. Well, that is basically true. However,
one judge was quite reluctant, another one moderated, and the
judge apparently wanted to do it this way and prevailed. But
the only thing I was asking about--and if you are prepared to
make an expression of opinion--is the decision to decide it as
a summary matter, not even a per curiam opinion. Did you deal
with that issue and specifics?
Ms. Askew. We are aware of how the Second Circuit handles
summary opinions. We did not talk to her about that. We did not
believe that was within the criteria that we evaluate with
judges. We did read the opinion in great detail. Members of the
reading groups, all three reading groups--indeed, we were very
lucky to receive the Supreme Court opinion on this before our
report was finalized, so we got a complete briefing on that
case. And we----
Senator Sessions. One more thing. A recent group of
political scientists did a study of the ABA nomination process
from 1985 to 2008 and found that the ABA must take affirmative
steps to change its system for rating nominees to avoid favor
and--bias in favor of liberal nominees. Do you take that
seriously? Are you willing to look at how you handle these
things?
Ms. Askew. We take any critique of our process seriously. I
can tell you that we judge every nominee based on the record
that is presented to us and the background and experience of
the nominee.
Senator Sessions. Well, let me just say this: I think it is
a valuable contribution to the process.
Ms. Askew. Thank you.
Senator Sessions. When you talk to lawyers and sometimes--
most people are very--tend very much to be supportive of any
nominee, especially if--you know, they just tend to be
supportive and minimize problems. But sometimes I think you
could pick up things that other people wouldn't that could be
valuable to this process, and I thank you.
Ms. Askew. Thank you.
Ms. Boies. Senator, if I may, I would like just to go back
briefly to the Ricci decision. One thing that I did look at is
that in calendar year 2008, the Second Circuit issued 1,482
opinions, not counting the non-argued asylum cases. And of
those 1,482, 1,081 were decided by summary order. Only 401 full
opinions were issued.
And as I read the record, one of the reasons the panel
believed it could proceed by summary order is because it
believed that there was controlling Second Circuit precedent
which a panel is not in a position to change.
So I don't mean to open the issue, but I would like to put
it into some context as to how the Second Circuit normally
operates.
Senator Sessions. Well, that is a nice way to say it. But
this was a--the rule said if it has jurisprudential importance,
you should have an opinion. I think it was in violation of the
rule. I don't know why they did it, but it was in violation of
the rule, in my judgment as a practicing lawyer. I would have
thought you would have agreed, Ms. Boies.
Senator Whitehouse. We will hear next from the
distinguished Senator from Pennsylvania, Senator Specter.
Senator Specter. Well, thank you, Mr. Chairman. No
questions, just a comment to thank you for your service. There
have been occasions when the American Bar Association was not
consulted, and I think that the ABA has a special status. The
Judiciary Committee is hearing from all interested parties. It
is not possible to invite all interested parties to appear in
person, but we welcome comments from anyone in a free society
to tell us what they think of the nominee.
But the ABA performs this function regularly with all
Federal judges, and you interview a lot of people who are
knowledgeable and have had contact, and I think it is very,
very useful. So thank you for your service.
I have no questions, Mr. Chairman, on the substance.
Senator Whitehouse. Then we will turn to Senator Cardin of
Maryland.
Senator Cardin. I also do not have any questions, but I do
want to make an observation, because I very much respect the
opinions of the American Bar Association and fellow lawyers.
I think it is the highest compliment when your peers give
you the highest rating. They are your toughest critics. I know
that lawyers who are selecting a jury will almost always strike
lawyers from that jury list because they are the toughest
audience that you have. So this, I think, speaks to the
nominee.
And as I understand it, the manner in which you go about
rating a judge is not only her experience but also the way that
she has gone about reaching her decisions from the point of
view of the appropriate role of a judge, her judicial
temperament, and the absence of bias in rendering those
decisions. And they are exactly what we are looking for from
the next Justice on the Supreme Court.
So I just really want to thank you for giving us this
information and participating in the process.
Ms. Askew. Thank you, Senator.
Senator Whitehouse. Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. I just want to
welcome our two witnesses, and thank you for your assistance to
the Committee, and particularly to say how good it is to see
Kim Askew, my constituent from Dallas, Texas. She does great
work as Chair of the Committee, and welcome. Thank you for your
assistance to the Committee in performing its constitutional
function.
Ms. Askew. Thank you.
Senator Whitehouse. There being no further questions, the
panel is excused with our gratitude for a commendable and very
diligent effort.
Senator Sessions. Thank you very much.
Senator Whitehouse. We will take a 5-minute recess while
the next panel assembles.
[Whereupon, at 2:08 p.m., the Committee was recessed.]
After Recess [2:12 p.m.]
Senator Whitehouse. The hearing of the Judiciary Committee
will come back to order.
We are awaiting the arrival of Mayor Bloomberg and District
Attorney Morgenthau, who are coming down from New York. I'm
told that they are 5 minutes away, but the 5 minutes that
people are away can be a longer 5 minutes than a regular 5
minutes. So in the interest of the time of the proceeding and
of the other witnesses, we will proceed and come to them when
they arrive and have a chance to take their seats.
Senator Sessions. Well, in the Mayor's defense, he probably
thought we would be operating under Senate time and we would
certainly be late and he could have a little extra time.
Senator Whitehouse. That is our custom.
Senator Sessions. But we're moving along well. Thank you,
Mr. Chairman.
Senator Whitehouse. Our first witness then will be Dustin
McDaniel. He is the Attorney General for the State of Arkansas
and the Southern Chair of the National Association of Attorneys
General. Previous to his election as Attorney General, he
worked in private practice in Jonesboro, Arkansas. Prior to
taking office, Mr. McDaniel also served as a uniformed patrol
officer in his hometown of Jonesboro, Arkansas. He is a
graduate of the University of Arkansas Little Rock Law School.
Attorney General McDaniel, will you please stand to be
sworn?
Do you affirm that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. McDaniel. I do.
Senator Whitehouse. Please be seated.
Attorney Morgenthau, please be seated.
Attorney General McDaniel, please proceed with your
statement.
STATEMENT OF DUSTIN MCDANIEL, ATTORNEY GENERAL, STATE OF
ARKANSAS
Mr. McDaniel. Thank you, Mr. Chairman and Ranking Member
Sessions. My name is Dustin McDaniel and I'm the Attorney
General of the State of Arkansas. I am here today to speak in
support of the nomination of Judge Sonia Sotomayor to the
Supreme Court of the United States.
We've all heard all week about her compelling life story
and impressive accomplishments. I have the highest respect and
admiration for her and I'm proud to testify on behalf of this
person who was first appointed by President George H.W. Bush,
and then by my most famous predecessor in the Arkansas Attorney
General's Office, President Bill Clinton.
More specifically, I'm here to rebut any assertion that her
participation in the matter of Ricci v. DeStefano in any way
reflects upon her qualifications or abilities to serve as a
Justice on the United States Supreme Court.
When the Supreme Court granted certiorari in the Ricci
case, I, on behalf of the State of Arkansas, joined with five
other attorneys general in support of the Second Circuit.
Before I address the case and the brief, let me address the
parties and their issues.
I entered the world of public service long before I became
an elected official. After college, I turned down my admission
into law school and took a civil service exam in my hometown of
Jonesboro, Arkansas. I became a police officer and I saw
firsthand the heroism and dedication of the men and women who
protect and serve our communities very day. Firefighters like
Frank Ricci and his colleagues run into homes and buildings
when everyone else is running out. I have the highest respect
and gratitude for all who serve our communities, States, and
Nation. They are heroes among us and they deserve to be treated
fairly by our system.
My personal experience with the civil service exam was a
favorable one, but not all are so lucky. I understand the
frustration that the firefighters felt with this process. I
also understand the city's fear of litigation and unfair
results. I am for a process that is fair. No one should be
given an unfair advantage, but no one should be subject to an
unfair disadvantage either.
As Attorney General, I represent hundreds of State
agencies, boards and commissions in matters of employment law.
My job is to allow my clients to do their job without fear of
unreasonable litigation. The law had, until recently, allowed
for flexibility, necessary for public employers. The Supreme
Court's ruling in this case will likely increase costly
litigation and the taxpayers will ultimately pay the bill.
All who have commented on the nomination process in recent
years have been critical of those who have been labeled an
``activist'' judge. It's important to note that the Second
Circuit's ruling in this case was not judicial activism at
work; to the contrary, they followed existing law.
In Ricci, the panel adopted the lengthy analysis of the
District Court, which they called ``thorough, thoughtful and
well-reasoned''. The District Court cited cases dating back
some 28 years. The ruling was consistent with the law and the
doctrine of stare decisis. Granted, the Supreme Court, in a
closely divided opinion, ruled differently, but in doing so it
set new precedent.
It is also important to note that the Second Circuit's
ruling was supported by many prestigious groups, including the
EEOC, the Department of Justice, the National League of Cities,
the National Association of Counties, International Municipal
Lawyers Association, and the Republican and Democratic
Attorneys General of Alaska, Iowa, Arkansas, Maryland, Nevada,
and Utah. There's a large body of research available on Judge
Sotomayor's record.
No allegation that she rules based on anything other than
the law can stand when cast in the light of her actual record.
The Congressional Research Service concluded, ``Perhaps the
most consistent characteristic of her approach as an appellate
judge could be described as an adherence to the doctrine of
stare decisis'', that is, upholding past judicial precedents.
One only has to look so far as to her own words. In Hayden
v. Pataki, she wrote in a dissent, ``It is the duty of a judge
to follow the law, no question its plain terms.'' She concluded
by saying, ``Congress would prefer to make any needed changes
itself rather than have courts do so for it. In my opinion,
Judge Sotomayor is abundantly qualified and is an excellent
nominee. I believe that the people of the United States would
be well served by her presence on the courts.
It is my great honor and privilege to be here at this
Committee, and I thank you ever so much for the opportunity to
appear here today. Thank you.
Senator Whitehouse. Thank you very much, Attorney General
McDaniel.
We will do a round of questions for the Attorney General
and then once the--since the panel is completely assembled, I
will have all the witnesses sworn and then we will proceed to
Mayor Bloomberg, to District Attorney Morgenthau, and on across
the panel, with one brief interruption to allow the
distinguished Senator from the State of New York, Senator
Schumer, to introduce Mayor Bloomberg.
Attorney General McDaniel, as a--as an experienced lawyer,
is--let me ask you, is it not the case that it's the Supreme
Court's task very frequently to resolve conflicts between the
Circuit Court of Appeal?
Mr. McDaniel. Yes, of course it is, Senator.
Senator Whitehouse. And if a Circuit Court is bound by its
own prior precedent and therefore the doctrine of stare decisis
controls a particular decision, that does not in any way
inhibit the Supreme Court from reviewing that second decision
against conflicting decisions from other circuits in its task
in resolving those conflicts, correct?
Mr. McDaniel. That's--that is correct.
Senator Whitehouse. Is it your sense that that is what
occurred in this case, that the Second Circuit, in Ricci, felt
itself bound by stare decisis as a result of its prior
precedent, but that the Supreme Court took the case to resolve
issues of conflict with other circuits?
Mr. McDaniel. Well, it certainly seems clear that the--the
binding law from the Supreme Court, which dated back up to 28
years, made it clear that remedial actions, although race-
conscious, race-neutral, were permissible. I think that that is
precisely what the case demonstrated and how the court ruled,
and why the States that--that participated, Arkansas included,
thought that it was important to preserve for our clients the
ability to try to avoid litigation if they think they cannot
defend an existing practice. If they cannot defend it, no
lawyer would tell their client, oh, go do it anyway. But
clearly the Supreme Court thought that it was ripe for review,
and they also thought that it was ripe to change the law, which
is their purview, and that's what they did.
Senator Whitehouse. That's an interesting point. And many
observers, including prominent observers who have had their
views expressed in the public media about this, have indicated
that that decision changed the landscape of civil rights law.
If a judge is a cautious and conservative jurist on a Circuit
Court, do you believe it's appropriate for the Circuit Court to
change the landscape of civil rights law?
Mr. McDaniel. Absolutely not. I don't think that the Second
Circuit did anything short of what it had to do, which was to
apply the existing law. The fact that the majority--a bare
majority--in the United States Supreme Court decided to change
existing law, frankly, that would have been inappropriate for
the Second Circuit to take that responsibility on itself.
Senator Whitehouse. Thank you, Attorney General.
Senator Sessions. Thank you, Mr. McDaniel. I was a 2-year
Attorney General, and it was a great honor.
With regard to the Ricci case, are you aware that the panel
attempted to decide this case on a summary order, writing no
opinion, not even a pro curium opinion?
Mr. McDaniel. I am aware of that, sir.
Senator Sessions. And are you aware that by chance one of
the other members of the Circuit found out about that and an
uproar of sorts occurred because the people--the other
members--other members of the Circuit were very concerned about
the opinion and thought it was an important opinion. Are you
aware of that?
Mr. McDaniel. I know that the--I know that the panel, or at
least the body of judges, chose to review the matter and they
voted not to meet en banc, and that there was----
Senator Sessions. That's correct.
Mr. McDaniel.--a pro curium that was issued.
Senator Sessions. That's correct. Now, by you--now, you say
that there was Second Circuit opinion and authority to uphold
this case. But--but on re-hearing, the slate is wiped clean and
the panel can develop or formulate new authority or determine
clearly whether or not that previous case may have applied. And
are you aware that when they voted, the vote was 6:6 and Judge
Sotomayor was the key vote in deciding not to re-hear the case?
Therefore, we can conclude that not only did she decide this
case, but it's really not accurate to say she was just
following authority since it was her vote that didn't allow
that authority to be reevaluated.
Mr. McDaniel. Well, Senator, she was in the majority, so
it's fair to say that any one of those judges could be the
deciding vote that----
Senator Sessions. That is correct. But it's not fair, I
think, to say that she didn't have an opportunity to reevaluate
it. She was simply applying a law that she was bound to follow
when she could have--if she felt differently, she could have
called--she could have allowed it to have been re-discussed.
Mr. McDaniel. Well, I also think that there were Supreme
Court cases, not just Second Circuit cases.
Senator Sessions. Well, are you aware that the Supreme
Court says there were not? Are you aware the Supreme Court, in
their opinion, said there was no Supreme Court authority on
this matter?
Mr. McDaniel. I have read their opinion and I tend to agree
with the minority, that this was, in fact, squarely within
the----
Senator Sessions. Okay. Now, you filed--which I give you
credit for. I did some of these things when I was Attorney
General. You--you joined with 32 other State attorneys general
in submitting an amicus brief to the U.S. Supreme Court on the
Heller case. You took the provision--the brief argues that
``the right to keep and bear arms is among the most fundamental
of rights because it is essential to securing all other
liberties''. I see the Mayor not happily listening to that.
[Laughter.]
Senator Sessions. You--but--so you believe that the Second
Amendment is a fundamental right. Are you aware that Sandy
Froman, the former president of NRA--you're probably not
familiar with this letter. But she's a lawyer, and--and pointed
out that Heller was just a 5:4 opinion, with some Justices
arguing that the Second Amendment does not apply to private
citizens, or that if it does, even a total gun ban would be
upheld if a legitimate government interest could be found. The
dissenting Justices also found that DC's absolute gun ban on
handguns within the home a reasonable restriction. That
wouldn't play too well in Alabama, and probably not Arkansas,
Oklahoma, or Texas. But most places.
So I guess I'm saying, are you concerned that--and are you
aware, of course, of the Maloney case in which Judge
Sotomayor--and I think she can contend there was authority in
that case that justified her concluding the Second Amendment
does not apply to the States, but I was disappointed in the
breadth, and the way she wrote it gave me concern.
So are you aware that one vote on the Supreme Court can
make the difference on the question of whether or not the right
to keep and bear arms is protected against mayors or
legislatures of States who disagree?
Mr. McDaniel. Well, I was proud to join Arkansas into the
brief on Heller v. District of Columbia. I intend to join again
in the NRA v. Chicago in the attempt to have the Supreme Court
review and take up the question, which I believe is ripe, as to
whether or not the Second Amendment is applied to the States as
incorporated by the Fourteenth Amendment. I do believe that the
Second Amendment is a fundamental right, and I do believe that
it is an individual right, not one tied to participation in a
militia.
The Attorney General, the current Attorney General in
Texas, Senator Cornyn's successor, and I have spent some time
on that issue, even recently. And I am not, nonetheless,
concerned with Judge Sotomayor's position. I am confident that
her answers that she's provided to this Committee and her
record are consistent with one another, and I do not believe
that the right to keep and bear arms is at risk with this
nominee, or frankly I wouldn't testify for her.
Senator Sessions. Well, thank you. I think it is.
Senator Whitehouse. Now that the panel is assembled, I will
swear the entire panel in. We will return to regular order. You
can all give your opening statements, and then questioning will
begin at the conclusion of those opening statements.
Would you please stand to be sworn? You may sit.
Do you affirm that the testimony you're about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mayor Bloomberg. I do.
Mr. Morgenthau. I do.
Mr. Henderson. I do.
Mr. Ricci. I do.
Mr. Vargas. I do.
Mr. Kirsanow. I do.
Ms. Chavez. I do.
Senator Whitehouse. Please be seated.
I will recognize Senator Schumer for a moment to welcome
his constituent and the mayor of New York City, Michael
Bloomberg.
Senator Schumer. Well, it's my honor to welcome two very
distinguished constituents here. I want to thank every witness
for coming, but particularly extend a welcome to two of New
York's greatest public servants, Mayor Bloomberg and District
Attorney Morgenthau. As you know, this nomination is the source
of enormous pride to all New Yorkers, and your support for
Judge Sotomayor has been extremely helpful to this Committee,
to the Senate as a whole, and to the Nation in understanding
what kind of Justice she will be, and very much appreciate your
being here.
Thank you, Mr. Chairman.
Senator Cardin. Welcome.
Mayor Bloomberg is the mayor of New York City. He is
currently serving in his third term as mayor. He founded
Bloomberg, LP, a New York City company that now has employees
in more than 100 cities. Mayor Bloomberg is a graduate of Johns
Hopkins University located in Baltimore, Maryland and Harvard
Business School.
We look forward to your testimony.
STATEMENT OF HON. MICHAEL BLOOMBERG, MAYOR, CITY OF NEW YORK
Mayor Bloomberg. Mr. Chairman, thank you. Ranking Member
Sessions, thank you very much. Senator, Senator, Senator.
Senator Sessions, I must say, as a former gun owner, a former
member of the NRA, and also a staunch defender of the Second
Amendment, we probably don't disagree very much if we really
had a chance to talk.
In any case, I wanted to thank everyone for the opportunity
to testify before you today. I'm Mike Bloomberg and I'm here
not only as the mayor of New York City, the city where Judge
Sonia Sotomayor has spent her entire career, but also as
someone who has appointed or reappointed more than 140 judges
to New York City's criminal and family courts. So, I do
appreciate the job before you.
About 3 months ago when President Obama invited Governor
Schwarzenegger, Ed Rendell, and me to the White House to
discuss infrastructure policy, I did find an opportunity to
tell him what many of the best legal minds in New York were
telling me: Judge Sonia Sotomayor would be a superb Supreme
Court Justice. I strongly believe that she should be supported
by Republicans, Democrats and independents, and I should know
because I've been all three.
[Laughter.]
Mayor Bloomberg. Judge Sotomayor has all the key qualities
that I look for when I appoint a judge. First, she is someone
with a sharp and agile mind, as her distinguished record and
her testimony, I think, made clear. And as a former prosecutor,
commercial litigator, District Court judge and appellate judge,
she certainly brings a wealth of unique experience.
Second, she is an independent jurist who does not fit
squarely into an ideological box. A review of her rulings by
New York University's Brennan Center found that judges on the
Second Circuit court who were appointed by Republicans agreed
with her more than 90 percent of the time when overruling a
lower court decision, and when ruling a governmental action
unconstitutional. So this is clearly someone whose decisions
have cut across party lines, which is something I think the
Supreme Court could use more of.
And third, whether you agree or disagree with her on
particular cases, she has a record of sound reasoning. In
interviewing judicial candidates, I like to ask questions that
have no easy answers and then listen to how they develop their
responses. I want to know that they are open-minded enough to
change their views if they hear compelling evidence and to see
if they can provide a strong rationale for their legal
conclusions, even if I disagree with it.
The fact is, you're never going to agree with a judicial
candidate on every issue. I've appointed plenty of judges whose
answers I don't agree with at all, and I should point out that
includes times when Judge Sotomayor has ruled against New York
City, as she has done in a number of cases. So I'm not here as
someone who agrees with the outcome of her decisions 100
percent of the time, and I don't think that that should be the
standard.
Now, I'm not a lawyer or a constitutional scholar, but I
think the standard should be: does she apply the law based on
rational legal reasoning and is she within the bounds of
mainstream thinking on issues of basic civil rights? And on
both questions, I think the answer is, unequivocally, yes. It's
impossible to know how she will rule on cases in the future, or
even what those cases might be.
Given that a Supreme Court judge is likely to serve for
decades, focusing on the issues de jour rather than
intellectual capacity, analytical ability, and just plain
common sense would miss what this country clearly needs:
someone who has the ability to provide us with the legal
reasoning and guidance that will be necessary to navigate the
uncharted waters of tomorrow's great debates. And I'm very
confident that Judge Sotomayor has that ability.
Finally, as the mayor of her hometown I would just like to
make two brief points. First, on the issue of diversity; The
Supreme Court currently includes one member who grew up in
Brooklyn and one who grew up in Queens, and so there's no doubt
that adding someone who comes from the Bronx would improve the
diversity of this court.
[Laughter.]
Mayor Bloomberg. And if you disagree with me, you haven't
been to Brooklyn, Queens, or the Bronx.
[Laughter.]
Mayor Bloomberg. But seriously, Sonia Sotomayor is the
quintessential New York success story. She has beaten all the
odds and rose to the top. If that's not the American dream, I
don't know what is. However, I don't believe she should be
confirmed on the strength of her biography, but I do think that
her life's story tells you an awful lot about her character and
ability.
And second, I just want to add a caution against those who
would suggest that Judge Sotomayor's service to the Puerto
Rican Legal Defense and Education Fund is somehow a negative.
That's an organization that is well-respected for its civil
rights work in New York City, and although I certainly have not
always seen eye-to-eye on every issue with them, there's no
question that they have made countless contributions to our
city, and Judge Sotomayor should be based solely on her record
and not on the record of others in the group.
So, thank you very much for the opportunity to testify, and
I urge you to confirm Sonia Sotomayor as a Justice of the
United States Supreme Court.
Senator Cardin. Mayor Bloomberg, thank you very much for
your testimony.
We'll now hear from Robert Morgenthau. Mr. Morgenthau has
been the District Attorney of New York County since 1975 and is
the longest-serving incumbent of that position. During his nine
terms in office, his staff has conducted about 3.5 million
criminal prosecutions in homicides in Manhattan, and has a rate
of 90 percent success. A graduate of Yale Law School, District
Attorney Morgenthau served aboard a Naval destroyer through
World War II.
It's a real pleasure to have you before our Committee.
STATEMENT OF ROBERT MORGENTHAU, DISTRICT ATTORNEY, NEW YORK
COUNTY, NEW YORK
Mr. Morgenthau. Thank you, Mr. Chairman. I appreciate the
opportunity of testifying today, and I'm pleased to join those
who endorse the nomination of Judge Sotomayor to the United
States Supreme Court.
I first came to know Judge Sotomayor when I was on a
recruiting trip to the Yale Law School. At that time, Jose
Cabranes was Yale's general counsel. He also tought at the law
school. I asked him if there was anyone special I should speak
with and he said, yes. He said a remarkable student named Sonia
Sotomayor was deciding where to work, and while he did not know
whether she'd given any thought to being a prosecutor, it would
be well worth my while to meet her. He was decidedly correct.
I'm happy to be able to say that the Judge joined my office
and remained with us for 5 years. In my conversations with her,
I learned about the compelling story of her life with which you
are now familiar. In a nutshell, she was raised by her mother
in a working-class home in South Bronx, and as a teenager
worked the evening shift in a garment factory to help make ends
meet. She went on through hard work and force of will to
overcome her initial difficulties with English composition to
win Princeton University's highest undergraduate honor, the
Pyne Prize, and to graduate with Honors from the Yale Law
School.
In the District Attorney's Office, the Judge was
immediately recognized by trial judges--and supervisors as
someone ``a step ahead of her colleagues'', ``one of the
brightest and most mature, hardworking, stand-out'', ``was
marked for rapid advancement. Ultimately, she took on every
kind of criminal case that comes into an urban courthouse, from
turnstile jumping to homicide.
One of those cases, the ``Tarzan'' murder case, involved an
addicted burglar named Richard Maddicks, who had terrorized the
neighborhood during crime sprees that left three dead and
involved his swinging into apartment windows from rooftops,
shooting anyone in his way. He is now serving a 137 years to
life sentence.
Another case prosecuted by Assistant D.A. Sotomayor in 1983
involved a Times Square child pornography operation. That was
the first child prosecution in New York after a landmark 1982
Supreme Court decision, People v. Furman, upholding New York's
new child pornography laws.
Assistant D.A. Sotomayor left the jurors in tears over what
the defendants had done to child victims. These cases happened
to grab the public attention, but Judge Sotomayor--Assistant
D.A. Sotomayor--understood that every case is important to the
victim and appropriately gave undivided attention to the proper
disposition of all of them.
Assistant District Attorney Sotomayor soon developed a
reputation. Unlike many beginning prosecutors, she simply would
not be pushed around, by judges or by attorneys. Some judges
were eager to dispose of cases cheaply to clear their
calendars. ADA Sotomayor, instead, fought for the right
conclusion in each case. Maybe that experience in the criminal
court in New York City helped her prepare for these hearings.
After leaving my office, Judge Sotomayor joined a prominent
law firm and also accepted a part-time appointment of the New
York City Campaign Finance--there she continued to earn a
reputation for being tough, fair, nonpolitical in an arena
where those characteristics were sorely needed, and she has
taken those characteristics with her to the Federal bench,
where they are equally important.
Judge Sotomayor's career in the law has spanned three
decades and she has worked in almost every level of our
judicial system: prosecutor, private litigator, trial court
judge, and an appellate court judge in what I think is the
second-most important court in the world. She has been an able
champion of the law and her depth of experience will be
invaluable on our highest court.
Judge Sotomayor is highly qualified for any position in
which a first-rate intellect, common sense, collegiality, and
good character would be assets. I might add that the Judge will
be the only member of the Supreme Court with experience trying
criminal cases in the State courts. The overwhelming majority
of American prosecutions occur in State courts.
Judge Sotomayor will bring to the court a full
understanding of problems faced by prosecutors in those cases,
as well as a first-hand knowledge of the trauma faced by
victims and of the legitimate needs of police officials that
work in the State law enforcement system. She will also
understand the impact of Federal judicial decisions on State
prosecutions.
In short, the Judge is uniquely qualified, by intellect,
experience, and commitment to the rule of law to be an
outstanding--and I repeat, outstanding--member of the court.
President Obama, and for that matter the United States, should
be proud to see once more the realization of that simple
American credo, that in this country a hardworking person with
talent can rise from humble beginnings to one of the highest
positions in the land.
Thank you, Mr. Chairman, for the opportunity to testify
today.
Senator Cardin. Thank you very much for your testimony.
We'll now hear from Wade Henderson, a familiar person to
this Committee. Wade Henderson is the president and CEO of the
Leadership Conference on Civil Rights and counsel to the
Leadership Conference Education Fund. He is a professor of
public interest law at the University of the District of
Columbia. Prior to his role with the Leadership Conference, Mr.
Henderson was the Washington Bureau Director of the NAACP. Mr.
Henderson is a graduate from Rutgers University School of Law.
Mr. Henderson.
STATEMENT OF WADE HENDERSON, PRESIDENT AND CEO, LEADERSHIP
CONFERENCE ON CIVIL RIGHTS
Mr. Henderson. Thank you, Mr. Chairman, Ranking Member
Sessions, members of the Committee. I have the privilege of
representing the views of the Leadership Conference, the
Nation's leading civil and human rights coalition, consisting
of more than 200 organizations working to build an America
that's as good as its ideals.
This afternoon I will briefly address four of the points
that have figured in the debate about Judge Sotomayor's
nomination: first, her qualifications for serving on the
Nation's highest court; second, her personal background and her
empathy for others who have had to work hard to succeed; third,
her role in the unanimous ruling by a three-judge panel in the
case of Ricci v. DeStefano; and fourth, her past membership on
the board of one of the Leadership Conference's member
organizations, the Puerto Rican Legal Defense and Education
Fund.
First, let me rejoice in what is self-evident. The
nomination of Judge Sotomayor to be an Associate Justice on our
Nation's highest court is a milestone by many standards. The
Nation's first African-American President has nominated the
first Hispanic-American, only the third woman, and only the
third person of color to serve on the Supreme Court. While
great challenges remain on our Nation's quest for equal
opportunity, we have truly reached an historic marker on the
journey toward our goal of ``Equal Justice For All'', the
phrased inscribed not far from here on the front of the Supreme
Court building.
But hopeful and historic as her nomination has been, Judge
Sotomayor should herself be just not by who she is, but by what
she has done. Now, let me be as clear as I can: there is no
question that she is qualified. Judge Sotomayor's eloquent and
thoughtful testimony before this Committee speaks for itself.
Her distinguished career at Princeton and Yale Law School
have been much stated. She then spent 5 years as a prosecutor,
as we've heard, in Manhattan, working for the legendary
District Attorney Robert Morgenthau--pleased to have him here
today--and 8 years as a corporate litigator. Seventeen years as
a Federal District Court judge and appellate court judge add up
to an individual who is one of the most qualified to have ever
come before this Committee.
Second, as with other nominees across the philosophical
spectrum, including Justice's Thomas and Alito, Judge Sotomayor
has spoken of her family history and her personal struggles.
These experiences help her to understand others and to do
justice. They further qualify her for the highest court, and
she has said and done nothing that could reasonably be
understood otherwise.
Third, Judge Sotomayor has participated in thousands of
cases and authored hundreds of opinions, but much of the debate
about her nomination has concentrated on the difficult case of
Ricci v. DeStefano. Whatever one may feel about the facts of
this case, we all agree that the Supreme Court, in its Ricci
decision, set a new standard for interpreting Title 7 of the
1964 Civil Rights Act. Using this one decision to negate Judge
Sotomayor's 17 years on the bench does a disservice to her
record and to this country.
Fourth, I must speak to the attacks on Judge Sotomayor
because of her service on the board of one of our Nation's
leading civil rights organizations. These attacks do an
injustice not only to Judge Sotomayor and to the Puerto Rican
Legal Defense and Education Fund, but also to the entire civil
rights community and to all those who look to us for a measure
of justice.
Make no mistake, legal defense funds play an indispensable
role in American life. They are private attorneys general that
assist individuals, often those with few resources and no other
representation, to become full shareholders in the American
dream.
When Justice Thurgood Marshall was nominated there were
those who questioned his role with the NAACP Legal Defense
Fund, but history does not remember their quibbles kindly.
Judge Sotomayor has lived the American dream and she
understands all who aspire to it. Her qualifications are
unquestioned and the lessons that she has learned in her life,
as well as in libraries, will serve her and our country well in
the years ahead. All those who walk through the entrance to the
Supreme Court seeking what is inscribed above its door, ``Equal
Justice Under Law'', can be confident that a Justice Sotomayor
will continue to do her part to keep the promise of our courts
and our country.
Thank you very much.
Senator Cardin. Well, thank you very much--for your
testimony.
We'll now hear from Frank Ricci, a name that's been
mentioned second only to Sotomayor during this hearing. Frank
Ricci has over a decade of experience as a firefighter with the
New Haven Fire Department and was a plaintiff in the case of
Ricci v. DeStefano. He's a contributing author of two books on
firefighting.
It's a pleasure to have you before the Committee.
STATEMENT OF FRANK RICCI, DIRECTOR OF FIRE SERVICES,
CONNECTICOSH (CONNECTICUT COUNSEL ON OCCUPATIONAL SAFETY AND
HEALTH)
Mr. Ricci. Thank you, Senator. Thank you for the
opportunity to appear before this distinguished Committee. I
accepted, with honor, the invitation to tell my story. Many
others have a similar story and I feel I'm speaking for them as
well.
The New Haven firefighters were not alone in their
struggle. Firefighters across the country have had to resort to
the Federal courts to vindicate their civil rights. Technology
and modern threats have challenged our profession. We have
become more effective and efficient, but not safer. The
structures we respond to today are more dangerous, constructed
with lightweight components that are prone to early collapse,
and we face fires that can double in size every 30 to 60
seconds.
Too many think that firefighters just fight fires. Officers
are also responsible for mitigating vehicle accidents,
hazardous material incidents, and handling complicated rescues.
Rescue work can be very technical. All of these things require
a great deal of knowledge and skill.
Lieutenants and Captains must understand the dynamic fire
environment and the critical boundaries we operate in. They are
forced to make stressful decisions based on imperfect
information and coordinate tactics that support our operational
objectives. Almost all our tasks are time-sensitive. When your
house is on fire or your life is in jeopardy, there are no time
for do-overs.
The lieutenant's test that I took was, without a doubt, a
job-related exam that was based on skills, knowledge, and
abilities needed to ensure public and the firefighters' safety.
We all had an equal opportunity to succeed as individuals and
we were all provided a road map to prepare for the exam.
Achievement is neither limited nor determined by one's race,
but by one's skills, dedication, commitment, and character.
Ours is not a job that can be handed out without regard to
merit and qualifications.
For this reason, I, and many others, prepared for these
positions throughout our careers. I studied harder than I ever
had before, reading, making flash cards, highlighting, reading
again, all while listening to prepared tapes. I went before
numerous panels to prepare for the oral assessment. I was a
virtual absentee father and husband for months because of it.
In 2004, the city of New Haven felt not enough minorities
would be promoted and that the political price for complying
with Title 7, the city's civil service rules, and the charter
would be too high, therefore they chose not to fill the
vacancies. Such action deprived all of us the process set forth
by the rule of law. Firefighters who earn promotions were
denied them.
Despite the important civil rights and constitutional
claims we raised, the Court of Appeals panel disposed of our
case in an unsigned, unpublished summary order that consisted
of a single paragraph that made mention of my dyslexia, and
thus led many to think that this was a case about me and a
disability. This case had nothing to do with that. It had
everything to do with ensuring our command officers were
competent to answer the call and our right to advance in our
profession based on merit, regardless of race.
Americans have the right to go into our Federal courts and
have their cases judged based on the Constitution and our laws,
not on politics or personal feelings. The lower court's belief
that citizens should be reduced to racial statistics is flawed.
It only divides people who don't wish to be divided along
racial lines. The very reason we have civil service rules is to
root out politics, discrimination, and nepotism. Our case
demonstrates that these ills will exist if the rules of merit
and the law are not followed.
Our courts are the last resorts for Americans whose rights
are violated. Making decisions on who should have command
positions solely based on statistics and politics, where the
outcome of the decision could result in injury or death, is
contrary to sound public policy.
The more attention our case got, the more some people tried
to distort it. It bothered us greatly that some perceived this
case as involving a testing process that resulted in minorities
being completely excluded from promotions. That was entirely
false, as minority firefighters were victimized by the city's
decision as well. As a result of our case, they should now
enjoy the career advancement that they've earned and deserve.
Enduring over 5 years of court proceedings took its toll on
us and our families. The case was longer--was no longer just
about us, but about so many Americans who had lost faith in the
court system. When we finally won our case and saw the messages
we received from every corner of the country, we understood
that we did something important together: we sought basic
fairness and even-handed enforcement of the laws, something all
Americans believe in.
Again, thank you for the honor and privilege of speaking to
you today.
Senator Cardin. Mr. Ricci, thank you very much for your
testimony.
We'll now hear from Lieutenant Ben Vargas. Benjamin Vargas
is a lieutenant in the New Haven Fire Department and was a
plaintiff in the case of Ricci v. DeStefano. He also worked
part-time as a consultant for a company that sells equipment to
firefighters.
Mr. Vargas.
STATEMENT OF LIEUTENANT BEN VARGAS, NEW HAVEN FIRE DEPARTMENT
Mr. Vargas. Thank you. Members of this Committee, it is
truly an honor to be invited here today.
Notably, since our case was summarily dismissed by both the
District Court and the Court of Appeals panel, this is the
first time I'm being given the opportunity to sit and testify
before a body and tell my story. I thank you for this--
Committee for the opportunity.
Senators of both parties have noted the importance of this
proceeding because decisions of the United States Supreme Court
can greatly impact the everyday lives of ordinary Americans. I
suppose that I and my fellow plaintiffs have shown how true
that is. I never envisioned being a plaintiff in a Supreme
Court case, much less one that generated so much media and
public interest. I am Hispanic and proud of the heritage and
background that Judge Sotomayor and I share, and I congratulate
Judge Sotomayor on her nomination.
But the focus should not have been on me being Hispanic.
The focus should have been on what I did to earn a promotion to
captain, and how my own government and some courts responded to
that. In short, they didn't care. I think it important for you
to know what I did, that I played by the rules and then endured
a long process of asking the courts to enforce those rules.
I am the proud father of three young sons. For them, I
sought to better my life and so I spent 3 months in daily study
preparing for an exam that was unquestionably job-related. My
wife, a special education teacher, took time off from work to
see me and our children through this process.
I knew we would see little of my sons during these months
when I studied every day at a desk in our basement, so I placed
photographs of my boys in front of me. When I would get tired
and went to stop--wanted to stop, I would look at the pictures,
realize that their own futures depended on mine, and I would
keep going. At one point, I packed up and went to a hotel for
days to avoid any distractions, and those pictures came with
me.
I was shocked when I was not rewarded for this hard work
and sacrifice, but I actually was penalized for it. I became
not Ben Vargas the fire lieutenant who proved himself qualified
to be captain, but a racial statistic. I had to make decisions
whether to join those who wanted promotions to be based on race
and ethnicity or join those who would insist on being judged
solely on their qualifications and the content of their
character. I am proud of the decision I made, and proud of the
principle that our group vindicated together.
In our profession, we do not have the luxury of being wrong
or having long debates. We must be correct the first time and
make quick decisions under the pressure of time and rapidly
unfolding events. Those who make these decisions must have the
knowledge necessary to get it right the first time. Unlike the
judicial system, there are no continuances, motions or appeals.
Errors and delays can cost people their lives.
In our profession, the racial and ethnic make-up of my crew
is the least important thing to us and to the public we serve.
I believe that countless Americans who had something to say
about our case understand that now. Firefighters and their
leaders stand between their fellow citizens and catastrophe.
Americans want those who are the most knowledge and qualified
to do the task. I am willing to risk, and even lay down, my
life for fellow citizens, but I was not willing to go along
with those who placed racial identity over these more critical
considerations.
I am not a lawyer, but I quickly learned about the law as
it applied to this case. Studying it as much as I studied for
my exam, I thought it clear that we were denied our fundamental
civil rights. I expected Lady Justice with the blindfolds on,
and a reasoned opinion from a Federal Court of Appeals telling
me, my fellow plaintiffs, and the public that the court's view
on the law--what the court's view on the law was, and do it in
an open and transparent way. Instead, we were devastated to see
a one-paragraph, unpublished order summarily dismissing our
case, and indeed even the notion that we had presented
important legal issues to that Court of Appeals.
I expected the judges who heard my case along the way to
make the right decisions, the ones required by the rule of law.
Of all that has been written about our case, it was Justice
Alito who best captured our own feelings. We did not ask for
sympathy or empathy, we asked only for even-handed enforcement
of the law, and prior to the majority Justice opinion in our
case, we were denied just that.
Thank you.
Senator Cardin. Thank you for your testimony.
We'll now hear from Peter Kirsanow. Peter Kirsanow serves
on the U.S. Commission on Civil Rights. He's a member of the
National Labor Relations Board, where he received a recess
appointment from President George W. Bush. Previously, he was a
partner with the Cleveland law firm of Benesch, Friedlander,
Coplan & Aronoff. Mr. Kirsanow received his law degree from
Cleveland State University.
STATEMENT OF PETER KIRSANOW, COMMISSIONER, U.S. COMMISSION ON
CIVIL RIGHTS
Mr. Kirsanow. Thank you, Mr. Chairman, Senator Sessions,
members of the Committee. I am Peter Kirsanow, member of the
U.S. Commission on Civil Rights. I am currently back at
Benesch, Friedlander in the Labor Employment Practice Group.
I'm here in my personal capacity.
The U.S. Commission on Civil Rights was established by
the----
Senator Sessions. Is that microphone on?
Mr. Kirsanow. The U.S. Commission on Civil Rights was
established by the 1957 Civil Rights Act to, among other
things, act as a national clearinghouse for information related
to denials of equal protection and discrimination.
In furtherance of the clearinghouse process, my assistant
and I reviewed the opinions in civil rights cases in which
Judge Sotomayor participated while on the Second Circuit in the
context of prevailing civil rights jurisprudence, and with
particular attention to the case of Ricci v. DeStefano. Our
review revealed at least three significant concerns with
respect to the manner in which the three-judge panel that
included Judge Sotomayor handled the case.
The first concern was, as you've heard, the summary
disposition of this particular case. The Ricci case contained
constitutional issues of extraordinary importance and impact.
For example, the issues of--that are very controversial and
volatile--racial quotas and racial discrimination. This was a
case of first impression, no Second Circuit or Supreme Court
precedent on point. Indeed, to the extent there were any cases
that could provide guidance, such as Wygant, Crowson, Adderand,
even private sector cases such as Johnson Transportation, Frank
v. Xerox, Rubber v. Steelworkers, would dictate or suggest a
result opposite of that reached by the Sotomayor panel.
The case contained a host of critical issues for review,
yet the three-judge panel summarily disposed of the case, as
you've heard, in an unpublished, one-paragraph pro curium
opinion that's usually reserved for cases that are relatively
simple, straightforward, and inconsequential.
The second concern is that the Sotomayor panel's order
would inevitably result in proliferation of de facto racial and
ethnic quotas. The standard endorsed by the Sotomayor panel was
lower than that adopted by the Supreme Court's test of strong
basis in evidence. Essentially, any race-based--decision evoked
to avoid a disparate impact lawsuit would provide immunity from
Title 7 review. Under this standard, employees who fear the
prospect or expense of litigation, regardless of the merits of
the case, would have a green light to resort to racial quotas.
But even more invidious is the use of quotas due to racial
politics, and as Judge Alito's concurrence showed, there was
glaringly abundant evidence of racial politics in the Ricci
case. Had the Sotomayor panel decision prevailed, employees
would have license to use racial preferences and quotas on an
expansive scale. Evidence introduced before the Civil Rights
Commission shows that when courts open the door to preferences
just a crack, preferences expand exponentially.
For example, evidence adduced before hearings of the Civil
Rights Commission in 2005 and 2006 show that despite the fact
that Adderand was passed more than--or decided more than 10
years ago, Federal agencies persist in using race-conscious
programs in Federal contracting, governmental contracting as
opposed to race-neutral alternatives. Moreover, even though the
Supreme Court had struck down the use of raw numerical rating
in college admissions in Gratz v. Bollinger, thereby requiring
that race be only a mere plus factor, a thumb on the scale in
the admissions process, powerful preferences show no signs of
abating.
A study by the Center for Equal Opportunity showed that at
a major university, preferences were so great that the odds
that a minority applicant would be admitted over a similarly
situated white comparative were 250:1, at another major
university, 1,115:1. That's not a thumb on the scale, that's an
anvil. And had the reasoning of the Ricci case in the lower
court prevailed, what happened to Firefighter Ricci and
Lieutenant Vargas would happen to innumerably more Americans of
every race throughout the country.
The third concern is that the lower court's decision that
would permit racial engineering by employers would actually
harm minorities who are purported beneficiaries of that
particular decision. Evidence adduced at a 2006 Civil Rights
Commission hearing shows that there's increasing data that
preferenced--preferences create mismatch effects that actually
increase the probabilities that minorities will fail if they
receive beneficial treatment or preferential treatment.
For example, black law students who are admitted under
preferences are 2.5 times more likely not to graduate than a
similarly situated white or Asian comparative, 4 times as
likely not to pass the bar exam on the first try, and 6 times
as likely never to pass the bar exam, despite multiple
attempts.
Mr. Chairman, it is respectfully submitted that if a
nominee's interpretive doctrine permits an employer to treat
one group preferentially today, there's nothing that prevents
them from treating another group or shifting the preferences to
another group tomorrow, and that's contrary to the colorblind
ideal contemplated by the 1964 Civil Rights Act, Title 7, which
was the issue decided in the Ricci case.
Thank you, Mr. Chairman.
Senator Cardin. And thank you for your testimony.
We'll now hear from Linda Chavez, who is chairman of the
Center for Equal Opportunity and a political analyst for Fox
News Channel. She's held a number of appointed positions, among
them White House Director of Public Liaison, and Staff Director
of U.S. Commission on Civil Rights.
STATEMENT OF LINDA CHAVEZ, PRESIDENT, CENTER FOR EQUAL
OPPORTUNITY
Ms. Chavez. Thank you, Mr. Chairman and members of the
Committee. I testify today not as a wise Latina woman, but as
an American who believes that skin color and national origin
should not determine who gets a job, a promotion, or a public
contract, or who gets into colleges or receives a fellowship.
My message today is straightforward: Mr. Chairman, do not
vote to confirm this nominee. I say this with some regret,
because I believe Judge Sotomayor's personal story is an
inspiring one, which proves that this is truly a land of
opportunity where circumstances of birth and class do not
determine whether you can succeed. Unfortunately, based on her
statements both on and off the bench, I do not believe Judge
Sotomayor shares that view.
It is clear from her record that she has drunk deep from
the well of identity politics. I know a lot about that well,
and I can tell you that it is dark and poisonous. It is, in my
view, impossible to be a fair judge and also believe that one's
race, ethnicity and sex should determine how someone will rule
as a judge. Despite her assurances to this Committee over the
last few days that her ``wise Latina'' woman statement was
simply a ``rhetorical flourish that fell flat'', nothing could
be further from the truth. All of us in public life have at one
time or another misspoken, but Judge Sotomayor's words weren't
uttered off the cuff. They were carefully crafted, repeated not
just once or twice, but at least seven times over several
years.
As others have pointed out, if Judge Sotomayor were a white
man who suggested that whites or males made better judges,
again, to use Judge Sotomayor's words, ``whether born from
experience or inherent physiological or cultural differences'',
we would not be having this discussion because the nominee
would have been forced to withdraw once those words became
public.
But of course, Judge Sotomayor's offensive words are just a
reflection of her much greater body of work as an ethnic
activist and judge. Identity politics is at the core of who
this woman is. And let me be clear here. I'm not talking about
the understandable pride in one's ancestry or ethnic groups,
which is both common and natural in a country as diverse and
pluralistic as ours. Identity politics involves a sense of
grievance against the majority, a feeling that racism permeates
American society and its institutions, and the belief that
members of one's own group are victims in a perpetual power
struggle with the majority.
From her earliest days at Princeton University and later
Yale Law School, to her 12-year involvement with the Puerto
Rican Legal Defense and Education Fund, to her speeches and
writings, including her jurisprudence, Judge Sotomayor has
consistently displayed an affinity for such views.
I have outlined at much greater length in my prepared
testimony--which I ask permission be included in the record in
full--the way in which I believe identity politics has
permeated Judge Sotomayor's life's work. But let me briefly
outline a few examples. As an undergraduate, she actively
pushed for race-based goals and time tables for faculty hiring.
In her much-praised senior thesis, she refused to identify the
U.S. Congress by its proper name, instead referring to it as
the ``North American Congress'', or the ``mainland Congress''.
During her tenure as chair of the Puerto Rican Legal
Defense and Education Fund's Director Litigation Committee, she
urged quota-seeking lawsuits challenging civil service exams,
seeking race-conscious decision making similar to that used by
the city of New Haven in Ricci.
She opposed the death penalty as racist. She supported
race-based government contracting. She made dubious arguments
in support of bilingual education and, more broadly, in trying
to equate English language requirements as a form of national
origin discrimination. As a Judge, she dissented from an
opinion that the Voting Rights Act does not give prison inmates
the right to vote, and she has said that as a witness--a
witness' identification of an assailant may be unconstitutional
racial profiling, in violation of the Equal Protection Clause,
if race is an element of that identification.
Finally, she has shown a willingness to let her policy
preferences guide her in the Ricci case.
Although she has attempted this week to back away from some
of her own intemperate words and has accused her critics of
taking them out of context, the record is clear: identity
politics is at the core of Judge Sotomayor's self-definition.
It has guided her involvement in advocacy groups, been the
topic of much of her public writing and speeches, and
influenced her interpretation of law. There is no reason to
believe that her elevation to the Supreme Court will temper
this inclination, and much reason to fear that it will play an
important role in how she approaches the cases that will come
before her if she is confirmed.
I, therefore, respectfully urge you not to confirm Judge
Sotomayor as an Associate Justice of the Supreme Court. Thank
you.
Senator Cardin. Thank you for your testimony.
[The prepared statement of Ms. Chavez appear as a
submission for the record.]
Senator Cardin. Let me, first, recognize our Chairman,
Chairman Leahy, who I understand wants to reserve his place.
Chairman Leahy. Thank you, Senator Cardin. One, I thank you
and the other Senators who have filled in on this part. I was
here throughout the--throughout all the testimony by Judge
Sotomayor and the questions asked by both Republicans and
Democrats, so I will reserve my time.
I do welcome all the witnesses, both for and against the
nominee. Senator Sessions and I joined together to make sure
that everybody was invited, everybody was given a chance to
testify. And if you wish to add to your testimony, the record
will be open for 24 hours for you to do that.
Thank you very much.
Senator Cardin. Thank you, Mr. Chairman.
Mayor Bloomberg, let me start with you, if I might, in my
questioning. There's been a lot of discussion about the Puerto
Rican Legal Defense and Education Fund, including during this
panel discussion. And Judge Sotomayor served on the board, had
nothing to do with the selection of individual cases from the
point of view of its content, but served in a voluntary
capacity with that board.
And first I'm going to quote from you and then give you a
chance, perhaps, to expand upon it. You have been quoted
saying, ``Only in Washington could someone's many years of
volunteer service to a highly regarded nonprofit organization
that has done so much good for so many be twisted into a
negative and that that group has made countless important
contributions to New York City.''
I just want to give you a chance to respond to Judge
Sotomayor's service on the Puerto Rican Legal Defense and
Education Fund.
Mayor Bloomberg. Well, this is an organization that has
defended people who don't have the wherewithal to get private
counsel, don't have traditions of understanding the law, and it
happens to focus on people mainly who come from Puerto Rico and
have language problems in addition to a lack of, perhaps,
understanding of how our court system works.
And it provides the kind of representation that we all, I
think, believe that everybody that appears before a judge and
before the law deserves. They raise money privately to pay
lawyers to defend, and I don't agree with some of their
positions, and I agree with other ones. But having more of
these organizations is a lot better than having less. At least
people do have the option of getting good representation.
Senator Cardin. Thank you.
Mr. Henderson, during the hearing of Judge Sotomayor we had
a chance to talk a little bit about voting rights and the
recent case before the Supreme Court, and the fact that one
Justice questioned the constitutionality, in fact, pretty well
determined the constitutionality of the--reauthorization of the
Voting Rights Act, saying it was no longer relevant.
Judge Sotomayor, during her testimony, talked about
deference to Congress, the fact that it was passed by a 98:0
vote in the U.S. Senate, and by a lopsided vote in the House of
Representatives, the 25-year extension. I just want to get your
comments as to whether the Voting Rights Act is relevant today
and your confidence level of Judge Sotomayor as it relates to
advancing civil rights for the people of our Nation.
Mr. Henderson. Thank you, Mr. Chairman, for your question.
Let me back up for just a minute and say that these hearings
have really been a testament to the wisdom of the founding
fathers in setting up a three-part system of government, with
the President making a nomination for an Associate Justice on
the Supreme Court and the Senate Judiciary Committee providing
its advice and consent. Under our system of government, the
Senate and the House have a particular responsibility to delve
deeply into the constitutional rights of all Americans,
particularly around the right to vote.
Voting really is the language of democracy. If you can't
vote, you don't count. And the truth is that, notwithstanding
the Fifteenth Amendment to the Constitution, the Thirteenth and
Fourteenth Amendments, African-Americans, Latinos, women, other
people of color, were often denied their right to vote well
into the 20th century.
It took not just those amendments, but actually a statute
enacted by this Congress to ensure that the rights of Americans
to vote, indeed, could be preserved, and it was only in the
aftermath of the 1965 Voting Rights Act that we have seen the
expansion of the franchise and democratization of our, you
know, Republic in a way that serves the interest of the
founders.
Having said that, Congress reached a decision and we
authorize in the Voting Rights Act in 2006 that this law was
necessary. Sixteen thousand pages of a congressional record
speak eloquently to that important interest. The fact that this
issue was held, both with congressional review and also a
national commission set up by the Lawyers Committee for Civil
Rights and others in the civil rights community, holding
hearings around the country, added to the record that was
created.
The fact that this bill passed, rather the reauthorization
of the Voting Rights Act, 390:33 in the House and 98:0 in the
Senate speaks eloquently about the important need of this Act,
and the continuing need for it. So the fact that some on the
Supreme Court found otherwise doesn't disturb me at all. There
is a need for it. That need continues, and notwithstanding
evidence.
Senator Cardin. Well, thank you for correcting my numbers
on--the number that it voted by. I appreciate that.
I just wanted to ask Mr. McDaniel a quick question. That
is, during the confirmation hearings both Democratic and
Republican Senators have been urging from our nominee to look
at what the law is, and not judge based upon an emotion. You
have to follow the precedents of the court.
I have a simple question to you in the Ricci case. Do you
believe that the Sotomayor decision with the three-judge panel
was within the mainstream of judicial decision making when that
decision was reached?
Mr. McDaniel. Senator, I do believe that. And to hear the
stories of these--these firefighters in person, I--I don't have
any reason not to use the word ``empathy''. I have a great deal
of empathy for the circumstances that they have described, and
I don't know that I have a great deal for how the city fathers
handled the matter. But by the time it made it to the Second
Circuit, I believe that the panel did what the law required and
I don't think that there is a grant--a just legal criticism for
the way that the panel handled the matter, and the fact that
the Supreme Court chose to change the law in a bare majority
also is their prerogative.
Senator Cardin. Thank you very much.
Senator Sessions.
Senator Sessions. Thank you. I thank all of you. This is a
very important panel. Actually, much of your testimony was
moving and I appreciate it, and I think you're calling us to a
higher level of discussion on these issues because they go to
the core of who we are as Americans, and I just want to share
that.
We are worried about the Second Amendment. I will just as
the Mayor, you signed a brief in favor of the DC gun ban, which
would bar even a handgun in someone's home, so I would assume
you would be agreeable with the opinion of Judge Sotomayor and
her view. We've got different views about these things.
Mayor, I want to tell you, I appreciate your leadership.
It's a tough job to be Mayor of New York. You're showing
strength and integrity.
Mr. Morgenthau, you're the dean of prosecutors. I hear many
people over the years that have worked for you and they're very
complimentary of you, and I know you're proud of this protegee
of yours who's moved forward.
Mr. Morgenthau. Senator, may I tell you that my grandmother
was born in Montgomery, Alabama?
Senator Sessions. I am impressed to hear that.
[Laughter.]
Senator Sessions. I feel better already. Oh, that's good.
Mr. Attorney General, thank you for your able comments. And
Mr. Henderson, it's good to work with you. Senator Leahy and
I--I'm talking, during these hearings, we're going to do that
crack cocaine thing that you and I have talked about before.
We've got to.
[Laughter.]
Mr. Henderson. Thank you, Senator. I appreciate it.
Senator Sessions. I may want to restate that.
[Laughter.]
Senator Sessions. Let me correct the record.
Ms. Chavez. Please rephrase it, Senator. Please rephrase.
Senator Sessions. I misspoke.
Mr. Henderson. No. Quite all right.
Senator Sessions. We're going to reduce the burden of
penalties in some of the crack cocaine cases and make them
fairer.
So Mr. Ricci, thank you for your work. I would say, Mr.
Henderson, that I said the PRLDEF Legal Defense Fund is a good
organization in my opening statement, and I think it has--it--
it has every right to advocate those positions that it does.
But the nominee was on the board for a long time and it did
take some positions that she rightly was asked about, whether
or not she agreed to it, especially during some of those times
she was chairman of the Litigation Committee. But I value
these--I value that groups can come together and file lawsuits
and take the matter to the court.
Just briefly, Mr. Kirsanow, on a slightly different subject
than you started, I think you probably know this answer, but
could you tell us, for the purpose of this hearing, as briefly
as you can, what the concern is in the Voting Rights Act? It's
not that we're against--anybody is against voting rights. I
voted for it. But there are some constitutional concerns.
Could you share precisely what that is?
Mr. Kirsanow. Sure. And specifically with respect to the
latest Supreme Court decision related to that, what was
articulated is that the pre-clearance provisions of the Voting
Rights Act pertain to a legacy of discrimination that occurred
in many States where poll taxes and literacy tests were being
imposed on black citizens. However, in this particular case the
Austin political subdivision came into existence after all of
the--the legacy of this discrimination had actually occurred,
or even after the Voting Rights Act itself had been passed.
The question is, how can it be that you've got a
preexisting law that is almost, for lack of a better term, ex-
post facto, applying to an organization that came into
existence after the law was in effect. There was no history of
discrimination or denials of equal protection or denial of
voting rights by this particular political subdivision, so it
was peculiar in that regard, and I think there were several
justices who evinced some concern about the approach in that
particular case.
Senator Sessions. Thank you. It's just, there are two sides
to that story. We passed the bill and we extended it, and all
of us had some angst and worry. I said I wanted to vote for it,
and we did. We extended it for probably longer than we should
have. Not that it would ever end. Huge portions of it would--
may never end. But some portions of it may not have been needed
to continue.
Mr.--Lieutenant Vargas, that was a moving story you gave
us. Let me just ask you this. Do you think that other members
of the fire department, had they study as--studied as hard as
you and mastered the subject matter as well as you did, could
have passed the test--more of them would have passed if they'd
studied as hard as you?
Mr. Vargas. Absolutely.
Senator Sessions. You think you----
Mr. Vargas. Absolutely. I studied with a group of them and
they all supported me on what I was doing because they knew the
effort that I put in and--and they were right there. We really
weren't all that far behind. And, you know, minorities would
have been promoted. That's something that--that continues to
get left out. There would have been minorities promoted to
captain, minorities promoted to lieutenant as well, and, you
know, when you take these exams, sometimes you have winners and
sometimes--you know, but you go into that situation knowing
that that's going to be the case.
Senator Sessions. Mr. Kirsanow, you indicated that all the
judges, I believe your phrase was, on the Supreme Court,
rejected the standard of review that the panel, Justice
Sotomayor's panel, set for the firefighter exam. Is that right?
Mr. Kirsanow. Senator, even the dissent had a different
standard. It was a good cause standard which would have given a
little bit more definitiveness to the approach that defendants
could take in defending. As you know, Title 7 has a safe harbor
of job-related, consistent with business necessity. If you can
establish that in fact the test that the firefighters took were
job-related, consistent with business necessity, then only
under those circumstances--the only way you could show a
disparate impact if--is if those tests weren't made. Even the
dissent said it should have been sent back on remand.
Senator Sessions. Thank you.
Ms. Chavez, I noticed one thing. According to the ABA
statistics, only 3.5 percent of lawyers in America in 2000 were
Hispanic, yet Hispanics make up 5 percent of the Federal
District Court judges and 6 percent of Circuit Court judges.
Would you comment on that?
Ms. Chavez. Well, first of all, I think it's important--you
know, there's been a lot of attention focused on the phrase ``a
wise Latina woman''. I used it myself, obviously, ironically,
in testifying today.
But I think it's important to read Judge Sotomayor's entire
speech because, in fact, it wasn't just that she was saying a
wise Latina woman would make a better judge. What she was
saying was that the race, ethnicity and gender of judges would,
and should, make a difference in their judging.
And she says in the speech itself, she says she doesn't
know always how that's going to happen, but she even cites some
studies, sociological studies, that took--take a look at the
way in which women judges have handed down decisions and makes
the case that women judges decide cases differently than men
do, and she speaks of this approvingly. And she talks about
statistics and how few Latinos there are on the bench. And the
statistics that you just cited come from an article that I
wrote in Retort to the statistics that she used.
I bring that up because inherent in that analysis of hers
is the notion that there ought to be proportional
representation on judicial panels, that we ought to be
selecting judges based on race, ethnicity and gender, and that
we ought to have more or less proportional representation.
And I have to say that, you know, that really I think comes
very close to arguing for quotas, a position, by the way, that
she has taken with--when she was with the Puerto Rican Legal
Defense and Education Fund. By the way, she was not just on the
board, she actually signed some memoranda. Those are in the
record, and I've cited some instances of that in my written
testimony. And the point is that if there is so-called under
representation of some groups, it means there's over-
representation of others.
And I said in my testimony that if we are concerned about
the number of Latino judges, the first thing you need to be a
judge is a college degree and a law degree. And, in fact, if
just using Judge Sotomayor's own statistics, if anything, if
you look at the number of attorneys who are Latino at the time
that she was writing, Hispanics were actually somewhat over-
represented on the judicial bench. I reject all of that. That
doesn't bother me in the least that they are over-represented.
I think we should not be making ethnicity and race or gender a
qualification for sitting on the bench, or being a firefighter,
or being a captain or a lieutenant on a firefighting team. I
think we ought to take race, ethnicity and gender out of the
equation.
Senator Sessions. Thank you.
Senator Cardin. Senator Durbin.
Senator Durbin. Ms. Chavez, do you think that Judge
Sotomayor's being awarded the Pyne Award at Princeton for high
academic achievement and good character, being summa cum laude
and Phi Beta Kappa was because it was a quota, that they wanted
to make sure there was a Latina who received that?
Ms. Chavez. No, I don't. And, in fact, what is interesting
about Judge Sotomayor's tenure at Princeton University is that
she has said that she was admitted as an affirmative action
admittee because her test scores were not comparable to that of
her peers. But she also has talked about what happened to her
when she got there, and that she recognized that in fact she
was not particularly well-prepared, that she did not write well
and that one of her professors pulled her aside and said she
had to work on her writing skills.
Senator Durbin. So that would have been----
Ms. Chavez. I admire----
Senator Durbin. Excuse me. That would make it a pretty
amazing story then.
Ms. Chavez. That's right. And I wish that that was the
story that she was telling Latinos, that she----
Senator Durbin. I think that's the story of her life that
I'm describing.
Ms. Chavez. Well, it--I wish that what she was telling
Latinos is that if you do what Ben Vargas has done, if you do
what Frank Ricci has done, if you take home the books and you
study them and you memorize what you need to know so that you
can pass the test like I did when I took home grammar books----
Senator Durbin. Well, I----
Ms. Chavez.--and learned how to write standard English,
that that should be the story, not that she should be insisting
on racial quotas and racial preferences.
Senator Durbin. Ms. Chavez, I think that--I think that the
story of her life is one of achievement, overcoming some odds
that many people have never faced in her family life and
personal life.
Mr. Morgenthau, when you were alerted about her skills in
law school, did they tell you that they had an opportunity here
for you to hire a wise Latina lawyer? Is that what you were in
the market for?
Mr. Morgenthau. Absolutely not.
Senator Durbin. Would you--if you could speak in the
microphone, I'd sure appreciate it.
Mr. Morgenthau. I'm sorry. Absolutely not. I mean, I took
one look at her resume, you know, summa cum laude at Princeton,
the Yale Law Journal, and I said--and then I talked to her
and--and I thought she had common sense and judgment and
willingness to work. The fact that she was Latino or Latina had
absolutely nothing to do with it.
And may I just use this opportunity to say that I was one
of the founding directors of the Puerto Rican Legal Defense
Fund and the reason I did that was I thought it was important
to represent a way under-represented minority--you know, you're
looking back 35, 40 years--to have an organization which was
dedicated to help people in Housing Corp discrimination cases.
So I urged her to join the Puerto Rican Legal Defense Fund.
I mean, I had become a life member of the NAACP in 1951. I've
been on the National Commission of the Anti-Defamation League.
I think that one of the great strengths of the United States is
its diversity and--and--but we've got to help people from the
various minority groups make their way and advance. I must say,
I'm very critical of some of my friends and relatives who want
to forget where they came from, and it's to her credit that she
remembers where she came from.
Senator Durbin. And Mayor Bloomberg, I believe you had a
quote that I read about Washington being maybe the only place--
would you recall that quote on the Puerto Rican Legal Defense
and Education Fund?
Mayor Bloomberg. Yes. I think that public service is
something that certainly you, Senator, know the value of and
the satisfaction when you do it. And in New York City, we value
those who are willing to give their time and help others. They
walk away in many cases from lucrative careers to serve as
public defenders or outside of the legal profession in myriad
other ways, and the fact that the organizations that they work
for sometimes do things that you or I disagree with doesn't
take away from the value that they provide in other things that
they do.
Senator Durbin. I've been honored to serve on this
Committee to consider three Supreme Court nominees. The two
previous nominees, Chief Justice Roberts and Justice Alito,
were both white males, and the questioning really came to this
central point: do you, as a white male have sensitivity to
those unlike yourself, such as minorities and disadvantaged
people? Those questions were asked over and over again. In this
case where we have a minority woman seeking a position on the
Supreme Court, it seems the question is, are you going to go
too far on the side of minorities and not really use the law in
a fair fashion?
Mayor Bloomberg. Senator, isn't the reason that the
founding fathers--or at least I assume the reason the founding
fathers said nine justices is that they wanted a diverse group
of people with different life experiences who could work
collaboratively and collectively to understand what the
founding fathers meant generations later on. And so the fact
that I--I said before in my testimony, I do not think that no
matter how compelling Judge Sotomayor's life experience and
biography is, that's not the reason to appoint her. Certainly
we benefit from having a diverse group of people on the court,
in the same way as my city benefits from a diverse group of
citizens.
Senator Durbin. Mr. Chairman, if I could ask one last
question. I might say, Mr. Mayor, you're getting dangerously
close to empathy.
[Laughter.]
Senator Durbin. But I happen to agree with you.
Mr. Morgenthau, when Judge Sotomayor worked in your office,
did you notice whether or not she treated minorities any
differently?
Mr. Morgenthau. She was right down the middle, Senator. She
didn't treat minorities any differently than she treated
everybody else. Right down the middle, looked at the law. She's
tough, but fair.
Senator Durbin. Thank you very much.
Thanks, Mr. Chairman.
Senator Cardin. Thank you.
Senator Sessions indicated Senator Graham will be next to
inquire.
Senator Graham. I'd like to thank my colleagues for the
courtesy here. I've got to run back and do some things.
This has been a very good panel, by the way. I think we're
sort of grappling with issues right here in the Senate the
country is grappling with, and I'll try to put it in
perspective the best I can.
Ms. Chavez, identity politics. I think I know what you're
talking about. I asked the judge about it. It's a practice of
politics I don't agree with, and I think overall is not the
right way to go. But having said that, I've tried to look at
the judge in totality.
The Well Qualified rating from the American Bar
Association, when it was given to Judge Alito and Roberts, we
all embraced it and I used it a couple of times to say that if
you thought this person had a rigid view of life or the law, it
would have been very hard for the ABA to give them a well
qualified rating.
Does that impress you all that the ABA had a different view
in terms of how she might use identity politics on the bench?
Ms. Chavez. Well, I'm not sure they dealt with that
question. I think they did deal with her record as a judge and
the decisions that she has made as a judge. The ABA and I often
disagree on matters, so----
Senator Graham. Yeah. I totally understand.
Ms. Chavez.--it's not----
Senator Graham. I totally understand. But I guess the point
I'm making, I don't want to sit here and try to have it both
ways, you know, say the ABA is a great thing one day and means
nothing the next.
Have you ever known a Republican political leader to
actively try to seek putting a minority in a position of
responsibility to help the party?
Ms. Chavez. I think that the idea of giving due deference
to making sure that people are representative in diverse ways
is a standard way of operating in political circles.
Senator Graham. Well, the only reason I mention that, the
statement you made, ``the way we pick our judges should be
based on merit, the way we pick our firefighters''--I totally
agree with that. But politics is politics in the sense that I
know that Republicans sit down and think, Okay, we've got some
power now, let's make sure that we let the whole country know
the Republican party is just not a party of short white guys.
Ms. Chavez. I think that's different, though, Senator,
than, as she suggested in her speech, that there ought to be
some sort of proportional representation.
Senator Graham. Yeah. That's right. You can go--that's
right. I totally agree.
Ms. Chavez. And I think that's farther. And I also think it
matters that we're not just doing that because we want to see
diverse opinions, but it seems to me that what she was saying
in her speech was that we do that because blacks, Latinos and
women are different, think differently, and will behave
differently. I mean, she said that explicitly.
Senator Graham. Yeah.
Ms. Chavez. She said it may be as a result of physiological
differences. I think any white man that said such a thing about
minorities or women would be laughed out of this room.
Senator Graham. Well, since I'm the white guy that said
that, I agree with you.
[Laughter.]
Senator Graham. But the point is that I'm trying to get the
country in a spot where you're not judged by one thing, that we
just can't look at her and say ``that's it''. You know, when I
look at her I see speeches that bug the hell out of me, as I
said before. But I also see something that very much impresses
me, and the ABA apparently sees something, and Louis Freeh sees
something, and Ken Starr sees something, and, you know, what I
want to tell the country is that Republicans very much do sit
down and think about political picks and appointments in a
political sense to try to show that we're a party that looks at
all Americans and wants to give an opportunity, and that's just
life, and that's not a bad thing.
Now, Mr. Ricci, I would want you to come to my house if it
was on fire.
[Laughter.]
Senator Graham. And I appreciate how difficult this must
have been for you to bust your ass and to study so hard and--
and to have it all stripped at the end. But I just want you to
know, as a country, that we're probably one generation removed
to where, no matter how hard you studied, based on your last
name or the color of your skin, you'd have no--no shot. And
we're trying to find some balance. And in your case, I think
you were poorly treated and you did not get the day in court
you deserved, but all turned out well. It was a 5:4 decision.
Maybe we can learn something through your experience. But
please don't lose sight of the fact, not so very long ago the
test was rigged a different way.
Mr. Vargas, you're one generation removed from where your
last name wouldn't have been it. Do you understand that?
Mr. Vargas. Yes, sir.
Senator Graham. What did you go through personally to stand
with Mr. Ricci? What came your way? Did anybody criticize you?
Mr. Vargas. I received lots of criticism.
Senator Graham. Well, tell me the kind of criticisms you
received.
Mr. Vargas. But I--I've got thick skin. I believe that I'm
a person with thick skin.
Senator Graham. Well, did people call you an Uncle Tom?
Mr. Vargas. Yes.
Senator Graham. People thought you were disloyal to the
Hispanic community?
Mr. Vargas. Absolutely. Yes.
Senator Graham. Well, quite frankly, my friend, I think
you've done a lot for America and the Hispanic community. My
hat's off to you.
Mr. Vargas. Thank you, Senator.
Senator Graham. Finally, Mayor, having to govern a city as
diverse as New York must be very, very difficult. Is it also a
pleasure?
Mayor Bloomberg. It is a pleasure. And we--I said before
you came in that some of the--Judge Sotomayor's views, I don't
happen to agree with. Some of her decisions, I think, were
wrong. We--for example, I disagreed with what the city of New
Haven did. In New York City, you should know that our city is a
defendant in a case, class action suit in the Justice
Department where the challenge is two entry-level tests for our
fire department, one given in 1999 before I became mayor, and
one afterwards in 2002, and we're defending it on the ground--
the suit alleges that the written portions of the test were not
germane to the job and it had a disparate impact. I've chosen
to fight this.
I think that, in fact, the tests were job-related and were
consistent with business necessity. This is a case that's going
to go to trial sometime later this year. What we've tried to do
is to approach it from a different point of view: aggressive
recruiting to try to get more minorities to apply to be
firefighters, and we have revised our test.
We've had a substantial increase in the number of
minorities taking the test, passing the test, and joining our
fire department. And I really do believe that that's a better
way to solve the diversity problem, which does affect an awful
lot of fire departments around this country, rather than
throwing out tests and thereby penalizing those who pass the
test.
Senator Cardin. Senator Klobuchar.
Senator Klobuchar. Thank you. I'm going to let Senator
Specter, who is--I guess I'm more senior to him only because of
a technicality, but also he's been here longer. So I'm going to
let him go, and then I will go after.
Senator Cardin. Senator Specter.
Senator Specter. No, no. I'll defer to Senator Klobuchar.
[Laughter.]
Senator Klobuchar. Okay. Here we go. I, first, wanted to
thank both firefighters for your service. As a prosecutor, we
worked extensively on arson cases and I just got a little sense
of what you go through every day and how dangerous your job is.
So, thank you for that.
I just wanted to follow up on one thing, Ms. Chavez, when
you talked about--you clearly know Ms. Sotomayor's history and
her record. But when you talked about how she got into
Princeton, you didn't point out the one thing that I think Mr.
Morgenthau did, and that is that she ended up graduating from
there summa cum laude, and that certainly is all about numbers
and grades, I would think, and not affirmative action. Would
that be correct?
Ms. Chavez. That's absolutely right. And I wish that was
the message that she was giving to her Hispanic audiences, that
she was able to do it, that she was able to overcome adversity,
that she was able, because she applied herself and worked hard
and put in the hours studying, to be able to succeed, and that
is not the message that she gives.
Senator Klobuchar. Okay. But she also was valedictorian of
her high school class. Where I went to high school, that was
all numbers and grades and nothing to do with anything else.
Isn't that true?
Ms. Chavez. I'm only quoting what she has said herself. I
don't have any idea what her test scores were. I don't think
anyone but she does. But she has said that she got into
Princeton, and also Yale, based on the affirmative action
programs at those universities.
Senator Klobuchar. Okay.
Mr. Morgenthau, it's just an honor to meet you. When I was
District Attorney, I hired a number of people that learned
everything they knew from you and your office, so thank you for
that. And, in fact, when I did my opening statement I talked
about a quote you gave once about how you hired people, and you
say, ``we want people with good judgment because a lot of the
job of a prosecutor is making decisions''.
You said, ``I also want to see some signs of humility in
anybody that I hire. We're giving young lawyers a lot of power
and we want to make sure that they're going to use that power
with good sense and without arrogance''. Could you talk about
those two qualities, the good judgment and the humility, and
how you think those qualities may be or may not be reflected in
our nominee?
Mr. Morgenthau. Well, I mean, I think she met all those
standards. I--I interviewed her and talked to her, thought she
was a hard worker. I thought she would relate to--to the
victims and witnesses. I thought she had humility. I thought
she was fair. I thought she would apply the law. She met all of
those standards that I thought were important to me. I hired
her entirely on the merits. Entirely on the merits. Nothing to
do with her ethnic background or anything else. She was an
outstanding candidate on the merits.
Senator Klobuchar. There is also a letter that we received
from 40 of her colleagues, and one of the things I've learned
is that while maybe sometimes someone does well in the
workplace by their superiors, sometimes their colleagues think
something else. And here you have her colleagues talking about
the long hours she worked, how she was among the very first in
her starting class to be selected to handle felonies. Could you
describe how your process works in your office and how certain
people get to handle felonies sooner than others?
Mr. Morgenthau. Well, we have six trial bureaus with about
50, 55 lawyers in each one, and it's up to the bureau chief,
the deputies, to decide who should move along. I know one of
those people who wrote that letter have gone to--to Princeton
and to Yale Law School and studied for the bar with Sonia. I
said, ``Damn, I guess she was a little bit ahead of you.'' And
he said, ``She was a full step ahead of us.'' And she had the--
the judgment, the common sense, the knowledge of people, the
ability to persuade victims and witnesses testifying, and we
thought she was a natural to move up to the Supreme Court.
Senator Klobuchar. Very good.
Mayor Bloomberg, I noted today earlier that the--that Judge
Sotomayor has the support of so many law enforcement
organizations in New York, National District Attorneys
Association. Could you talk about the--what that support means
and how--I know you've had success, along with Mr. Morgenthau's
amazing record of bringing crime down in New York, working with
the police, working with the county attorneys as a team, and
while our nominee was a small part of that, one--one Assistant
District Attorney, as part of the big effort, what difference
that has made to New York.
Mayor Bloomberg. Well, I think, Senator, the reason that
we've been able to bring crime down and improve the schools and
the economy and all of these things is because I've never asked
anybody or considered their ethnicity, their marital status,
orientation, gender, religion, or anything else. I just try to
get the best that I possibly can to come to work for the city,
and I think the results are there.
When I interview for judges--and I've appointed something
like 140 so far in the last seven-and-a-half years--I look for
integrity and professional competence and judicial temperament,
and how well they write, and their appellate records, and their
reputation for fairness and impartiality, but also we
extensively talk to members of the bar and the bench to see
what professionals who have to work with the candidate day in
and day out think. It's very easy to be on your best behavior
when you come to Washington and have to testify before a group
like this. But the truth of the matter is, your real character
comes out when you do it day in and day out over a long period
of time, and that's what your contemporaries see. And so the
fact that a lot of people who have worked with this judge think
that she is eminently qualified to move up carries an awful lot
of weight with me. They can find--they know a lot more about
her and her abilities than you or I could ever find out with
the short period of time that we interact with her or read of
her--read about her decisions, take them out of context of what
was going on at the time and we don't have the ability to do
all of the research that her contemporaries have been doing.
Senator Klobuchar. So you're saying that you'd give that a
lot more weight than all the questions we've been asking for
the last 3 days?
Mayor Bloomberg. No, I wouldn't----
[Laughter.]
Mayor Bloomberg. I wouldn't go quite that far. But I do
think that people who work with somebody for a long period of
time really do get to know them. And most importantly, people
who are on the other side of the issues, on the other side of
the bench, if they think that even though sometimes they win
and sometimes they lose, their views, to me, matter an awful
lot more.
Senator Klobuchar. I would agree. Thank you.
Senator Cardin. Senator Hatch.
Senator Hatch. Well, thank you, Mr. Chairman.
Mayor, it's always good to see you. I appreciate the joy
and the verve with which you run New York City. I know that
it's a tough city to run, but you do a great job.
Mayor Bloomberg. Thank you.
Senator Hatch. Mr. Morgenthau, we all respect you. You know
that, I know that. You've given a long public service that is
of great distinction.
It's always good to have attorneys general from any State
here, and we're grateful to have you here, Mr. McDaniel.
Mr. Henderson and I have been friends for a long time. We
sometimes oppose each other, but it's always been with
friendship and kindness.
We're grateful to have you two great people here who do
such very important work in the city of New Haven. I know it
takes guts to come here, and we appreciate you being here.
Mr. Kirsanow, let me just--and certainly Mr. Kirsanow, and
Linda Chavez, we've--we recognize your genius, too, and the
things that you bring to the table.
Let me just ask you this, Mr. Kirsanow, because I was the
one who raised the Ricci case to begin with. I have two related
questions about the Ricci case. Do you agree with what Judge
Cabranes and the other five judges who agreed with him, that
this was a case of first impression in the Second Circuit,
which means that there was no precedent?
Mr. Kirsanow. That's correct, Senator. We took a very
strong look as to whether or not there was anything on point.
There may have been some peripheral cases that wouldn't provide
any definitive guidance. As I indicated in my statement, to the
extent there were cases to provide guidance, really EPC--Equal
Protection Clause cases, Wygant, so on and so forth, those were
the kind of cases you'd have to look to, but none under Title
7.
Senator Hatch. Well, explain what was the issue of first
impression that these six judges found----
Mr. Kirsanow. It was----
Senator Hatch [continuing]. In the minority, 7:6, but
they--they----
Mr. Kirsanow. Right.
Senator Hatch. Judge Cabranes got very alarmed because this
was a summary order that ordinarily they wouldn't have seen,
but he caught it in the newspaper, asked to see it, and then
said, my gosh, this is a case of first impression, we ought to
do more than just a summary order on it, which is something
that I've been very critical of.
Mr. Kirsanow. Senator, it was the tension between two
provisions of Title 7, and that is----
Senator Hatch. You're talking about disparate treatment and
disparate impact?
Mr. Kirsanow. Precisely.
Senator Hatch. And this was----
Mr. Kirsanow. If I could balance the two. And keep in mind
that the 1991 amendments were really a product of Griggs v.
Duke Power and its progeny.
Senator Hatch. Right.
Mr. Kirsanow. And remember that Griggs was really a
response to the difficulty in demonstrating intentional
discrimination so that there was a resort to disparate impact
to try to help prove the case. So whether you give primacy to
intentional discrimination or disparate impact was what was
trying to be determined here, or not necessarily primacy, but
trying to evaluate both consistently with the purposes of Title
7.
Senator Hatch. Well, please explain the difference between
what the Supreme Court split 5:4 and what all nine of the
Justices on the Supreme Court--why they criticized Judge
Sotomayor's decision.
Mr. Kirsanow. It had to do with the process by which the
decision was reached. Even the dissent, Justice Ginsburg noted
in Footnote 10 that this is something that ordinarily should
have been sent back on remand because it was to determine
whether or--that is, to determine whether or not there was good
cause for taking the decision New Haven took.
The majority, on the other hand, said the city of New Haven
had to have a strong basis in evidence before it discarded the
test results. So there were two separate standards by both the
majority and the dissent, but neither agreed with the manner in
which the Sotomayor panel disposed of the case.
Senator Hatch. So all nine Justices on the court agreed
that the appropriate law wasn't followed.
Mr. Kirsanow. Correct.
Senator Hatch. And five of them said the city of New Haven
was wrong.
Mr. Kirsanow. Correct.
Senator Hatch. So the firefighters won.
Now, Mr. Vargas, I just want to make that clear, because I
don't think a lot of people realize that, and that's a very,
very big thing to me. Mr. Vargas, your comments about your sons
were powerful. What difference does it make for them whether
merit or race determines opportunity? What difference does this
case mean for them?
Mr. Vargas. I believe this is going to be a greater
opportunity for them in the future because they're not going to
be stigmatized that way. They're not going to be looked at that
way, and they're going to rise and fall on their own merits
and----
Senator Hatch. And that's one reason why you brought this
case.
Mr. Vargas. That's absolutely right.
Senator Hatch. Mr. Ricci, I only have a few seconds, but
let me say this. I want to thank you for your service, for
protecting your fellow citizens up there. As I understand it,
the city of New Haven went to great lengths to devise this
promotion test that was--the lengths were fair and objective,
the test was fair and objective, and not tilted toward or
against any demographic group. In fact, I understand that the
test was not a question. They worked on the kind and content of
the questions so that they were relevant to the job but would
not create a hurdle for anyone. They used both a written and an
oral exam format, right?
Mr. Ricci. Yes.
Senator Hatch. Is your understanding of how they worked to
put together the test and did--that's the way they put it
together. Did that make you believe that you would be judged on
your merits?
Mr. Ricci. Yes, Senator. The rules of the game were set up,
and we have a right to be judged fairly. And just by taking the
test we knew that the test--we didn't even need to go any
further. Just by taking the test we knew that the test was job-
related and measured the skills, ability and knowledge needed
for a competent fire officer.
Senator Hatch. Well, did that make you see this as a
genuine opportunity that might indeed be open to you?
Mr. Ricci. Yes, Senator.
Senator Hatch. Now, tell me more about your expectations
when you looked at this opportunity. You were, no doubt,
familiar with the racial dynamics that existed in New Haven at
the time. Anyone involved in their community anywhere would be
aware of that. Did you think that at all, that because the test
was so rigorously and fairly designed, that any of those
outside racial dynamics would become an obstacle to your future
service in the fire department as long as you were qualified
for the job?
Mr. Ricci. No. Myself, and all 20 plaintiffs, including
other firefighters that didn't join the suit, including
African-Americans and Hispanics, I think we all had the
expectation when we took the test that the test would be fair,
job-related, and that it was going to be dictated by one's
merit on how well you did on the exam, not by the color of your
skin.
Senator Hatch. Okay.
Now, gentlemen, I just have one statement to make. You made
the comment that the Supreme Court changed the law by a
majority. They didn't change the law, they actually recognized
there was a case of first impression here that had to be
decided, and they decided it. They didn't change any laws. Now,
it wasn't by a bare majority. I mean, nine of them said the
case should be reexamined, five of them said that New Haven was
wrong.
I just wanted to make that clear so that everybody would
understand it, because this is not some itty-bitty case. This
is one of the most important cases in the country's history,
and that's why it's caused such a furor. I want to compliment
all of you firemen for being willing to stand up in this issue,
because this is an important issue for people of whatever race,
or gender, or ethnicity. You know, you've taken a lot of flack
for it, and you shouldn't.
Thank you, Mr. Chairman.
Senator Cardin. Thank you.
Senator Specter.
Senator Specter. Thank you, Mr. Chairman.
Mr. Ricci, I agree with just about everything you said,
that you had a right to go to Federal court and get justice;
that racial statistics are wrong; what we sought was even-
handed justice. And as the court finally decided, you had been
deprived of your rights, and made a change.
The question that I have for you, do you have any reason to
think that Judge Sotomayor acted in anything other than good
faith in trying to reach a fair decision in the case?
Mr. Ricci. That's beyond my legal expertise. I'm not an
attorney or a legal scholar. I simply welcomed an invitation by
the U.S. Senate to come here today and--because this is our
first time that we've gotten to testify about our story. So I
can't comment on----
Senator Specter. Well, I think that it's really good that
you've been here and have had a chance to testify. I agree with
that totally. And there is enormous appreciation for the work
the firefighters do. I had a lot of association with the
firefighters in my days as a city official in Philadelphia. On
the homeland security, I've been on the forefront of funding
for firefighters. And what the firefighters did on 9/11 was--
words are inadequate, the heroism and the bravery and the loss
of lives and suffering.
Lieutenant Vargas, again, I agree with all of your
testimony. In your work, you have to get it right the first
time. Well, when you have 5:4 decisions, it's hard to say which
way the ball bounces, especially when they get reversed from
time to time. But I would ask you the same question I asked of
Mr. Ricci, whether you have any reason to doubt the good faith
of Judge Sotomayor in coming to the conclusion that she did.
Mr. Vargas. I would have to defer to pretty much the same
response. We were invited here to give our story and--and we
wanted to focus on that, and I really didn't put much to that.
So----
Senator Specter. Okay. Well, that's fair enough. It's up to
the Senate. We hope we get it right. But all anybody can use is
their--is their best judgment.
Ms. Chavez, when you place so much reliance on Ricci v.
DeStefano as a basis for opposing Judge Sotomayor, isn't that
case just overloaded with subtlety and nuance and could have
gone the other way? Can you really place much reliance on
criticism of Judge Sotomayor as a disqualifier?
Ms. Chavez. Well, first of all, Senator Specter, I think I
actually went back to criticize Judge Sotomayor's activities
going all the way back to Princeton University, so I don't
think I relied exclusively. I think what--and I would answer
the question that you asked Mr. Vargas and Mr. Ricci. I do
think that Judge Sotomayor, based on her history, her
involvement with the Puerto Rican Legal Defense and Education
Fund, her writings, her activism, has indicated a preference to
eliminate testing. She has fought to--to get rid of civil
service testing.
She has challenged tests as being inherently--standardized
tests as being inherently unequal and, as always, arriving at a
disparate impact. And I think that activism, that involvement
going back decades, did in fact influence the way she
approached this case. So I think it is relevant, and that is
the reason I'm criticizing it. It is not just her one decision
in one case, it is her whole body of work, her whole life
experience and the views that she has expressed over several
decades.
Senator Specter. Well, we consistently have nominees for
the Supreme Court come to this panel, Justice Alito, Chief
Justice Roberts, Justice Thomas, on both sides of the
ideological divide. And what they do in an advocacy position is
customarily set aside to make an evaluation as to their--their
competency. When you talk about being a woman or being an
Hispanic, it's my view that that kind of diversity is
enormously helpful.
I go back to a question I asked Attorney General Meese more
than 25 years ago. The debate was raging on affirmative action
even more than it is now. If you have two people of equal
competency and one is a minority, Attorney General Meese, not
known for being a flaming liberal, took--took the minority
position. My own view is that it's time we had more women and
we had more diversity, and we have to have qualifications. Have
to have qualifications. And I think that's what ultimately
determines this nomination.
Attorney General McDaniel, I'm going to ask you a loaded
question. You can handle a loaded question. Do you think, with
all of the critical issues we have to face on separation of
powers and what the Congress does by way of fact finding and
what is done on the Americans With Disabilities Act and trying
to find out about warrantless wire taps and the Foreign
Intelligence Surveillance Act and compensation for the
survivors of the victims of 9/11, and the intricate
relationship to the State Department influencing the way
Congress interprets the foreign sovereign immunity, that there
is a little too much attention paid to the Ricci case? Not that
it's not very important, but there are a lot of matters that
are important. Isn't this a little heavy on one case?
Mr. McDaniel. Senator, not--not only do I agree with you
about the other issues that should be given ample attention
because of their enormous weight, I think that perhaps the
wrong focus of attention, even on this case, has been applied.
Chief Justice Roberts has said that he would like to narrow
standing analyses and he would like to be a conservative
Justice who wants to look only at the disagreements between two
parties and not go beyond the scope of that.
One of the important issues in the Ricci case was a
standing issue, which was their standing to bring action if one
had not been denied promotion. Senator Hatch's own attorney
general joined with me in the brief because we thought that
that was among the issues that were important and should have
been followed under stare decisis. Instead, the court expanded
standing to someone who had not been harmed under the legal
standard.
I think that that is important to consider. I think that
it's important to note that if they were going to change
standing and standards, I think it's somewhat unfair to put
emphasis on the footnote. For instance, Footnote 10 of Justice
Ginsburg, which said that if we are going to change the rules
of the game then we should remand the case back to be reviewed.
But that wasn't critical of the Second Circuit, in and of----
Senator Specter. I regret----
Mr. McDaniel. So I agree with you about your--your emphasis
or the--on the----
Senator Specter. I regret that there is so little time.
Having Mayor Bloomberg and Dean Morgenthau, I'd like to really
have a chance to cross-examine them.
[Laughter.]
Senator Specter. Except that I agreed with their testimony.
Thank you, Mr. Chairman.
Senator Cardin. Thank you, Senator.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman. I want to extend
my appreciation to each of the witnesses for taking your time
to be here today. It's very important. These are--as we need to
remind ourselves--this is an historic time and appointment, and
these are very important issues that should not be neglected or
overlooked because of the press of other activities.
My own position is that I think, by virtue of her training,
her experience and her high achievement, Judge Sotomayor is
very well qualified, all other things being equal.
Unfortunately, because of her speeches and other public
statements where she said ``there's no such thing as
objectivity in the law'', which the opposite of objectivity is
subjectivity. She said there's ``no neutrality''. If there's no
neutrality, then I guess all that leaves is bias. And it really
strikes a body blow, I think, to the concept of equal justice
under the law.
Judges are not policymakers and judges should leave that
job to the elected representatives of the people who reserve
the time-honored right to throw the rascals out if they don't
like what we're doing as elected members of the legislative
branch.
So, you know, my concern is, what kind of judge would she
be, if confirmed to the United States Supreme Court, the kind
of judge that follows her speeches or the kind that follows the
law?
I just want to say to these firefighters what I told them
earlier today when they were kind enough to come by my office.
I think, you know, judges make mistakes. They used to say the
only lawyer that hadn't lost a case is one that hadn't tried
one. I don't necessarily hold it so much against Judge
Sotomayor that she didn't rule your way in the case.
Unfortunately, I think she did not give it the proper respect
and pay it the sort of attention that she should, because there
were real claims there that needed to be resolved by a court.
Every citizen is entitled to that, to have judges pay
attention and not make mistakes by, you know, trying to sweep
it under the rug. And thank goodness that Judge Cabranes found
the case, because it almost slipped through the cracks, and
then highlighted it so it could get to the Supreme Court of the
United States and the Supreme Court could address the very
important issues that you've presented here.
And one of the most important aspects, I think, of this
hearing, is that it provides an opportunity--and it would not
have been provided, I think in large part, unless these
firefighters had had the courage to do what they've done--for
us to refocus our attention on some of these areas, as Chief
Justice Roberts said. He said, ``It's sordid business, this
divvying up by race.'' And looking at people not as an
individual human being, but as a member of a group or because
of their sex, or their ethnicity, or their race. You know, it's
time for this Nation--I hope we would all agree--to look at
everyone as individuals and to reward hard work, sacrifice, and
initiative. The kinds of things that I think--particularly you,
Frank and Ben have demonstrated. Frank is the lead plaintiff--
but all the firefighters have helped demonstrate the importance
of not divvying up by race, not using de facto quotas.
And I think I would have felt a lot better if Judge
Sotomayor had said, you know what? This is really an important
issue and we should have addressed it. It slipped through our
fingers, but thank goodness it was caught and it was ultimately
reviewed. But she didn't. I think the idea that the city could
throw out a test just because the outcome wasn't what they
wanted is really pretext for racial discrimination. It's to
deny people what they are entitled to because of the color of
their skin.
So I just want to ask, in the short time I have here, Mr.
Vargas, I read earlier a statement that you had made to the New
York Times about the reason why you'd gone through these five
grueling years of litigation and the abuse that you've taken
from people who tried to shame you out of standing on your
rights and seeing this thing through.
Could you just tell the Committee what sacrifices you have
made, what your family has made, and why you felt like those
sacrifices were so important to vindicate this important right?
Mr. Vargas. Well, let alone the financial sacrifice, but,
you know, it--it starts from the moment you get out of the
academy. I mean, this was something that I wanted to do. I
wanted to advance my career as a firefighter right through the
ranks. And, you know, the books came with me to work every
single day, you know, from the minute I graduated from the
academy right up to when I got promoted to lieutenant, and they
kept coming with me right on till I took the captain's exam.
And once I get promoted to captain, they're going to continue
to come with me until I go right up through the ranks, you
know.
It's--it's not something that, you know, you can lose sight
of. You've got to continue to work hard and--and I want to
instill that in my kids. I want them to see that and I want
them to know that this is what America is all about. You work
hard. This is how America was built. We're the greatest country
in the world because you--you--as I said before, you rise and
fall on your own merits.
Senator Cornyn. Do you hope for a day for your children in
which, as we mentioned from Martin Luther King's statement
previously, ``they will be judged by the content of their
character and not the color of their skin'' ?
Mr. Vargas. I think our case goes a long way to help in--in
assuring that for them, and they're going to benefit from this
and I think we're going in the right direction now.
Senator Cornyn. I couldn't agree more.
Thank you, Mr. Chairman.
Senator Cardin. Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
Welcome to all of you. One of the things that I think may
have gotten lost in all of this is why tests are important. I
particularly wanted to ask the two firefighters here, Mr. Ricci
and Mr. Vargas, what difference does it make how well you
perform on the test, whether you pass it or not? What's the big
deal? What do you really have to show in those tests? And when
you're out performing your duties, what difference does it make
whether you pass the test or not? Mr. Ricci, maybe start with
you.
Mr. Ricci. Thank you, Senator. It's important to realize
that over 100 firefighter die in the line of duty each year, an
additional 80,000 are injured. You need to have a command of
the knowledge in order to make command decisions. You need to
understand the rules and regulations. Experience is the best
teacher, but only a fool learns in that school alone. You have
to have a basis to make the right decisions, because
firefighters operate in all different types of environments.
I've had the proud privilege of training the United States
Marine Corps Seabird team, and they respond to anthrax attacks
in one of these buildings.
I mean, firefighters have to be prepared for the regular
house fire, to the car accident, to the hazardous material
incident. You go to work every day and we're like an insurance
policy for the American public that they hope they never have
to use. But when someone calls 911, within four to 5 minutes
there's a fully staffed fire company at your door, with no
paperwork, and we're there to answer the call. And when you
show up, the officer has to be competent to lead his men and
women of this fire service, career and volunteer, across the
country to make the right decisions.
Senator Kyl. Thank you. That's a great explanation.
Lieutenant Vargas.
Mr. Vargas. There's not much I can add to that.
Senator Kyl. That was pretty good.
[Laughter.]
Mr. Vargas. That was pretty good, huh?
Senator Kyl. Well, I--I appreciate it, and I know that
everybody here, regardless of party or position on the nominee
or anything else, appreciates what you do and what your
colleagues do, and I'm--I'm sure I speak for all of us in that
regard.
One of the things that I wanted to just say briefly, is
that I--I am very proud of our--I was a lawyer and I practiced
law and I--and I won some and I lost some. But I always had
confidence in our system. And America is not unique, but there
aren't very many countries in the world like us where we
willingly volunteer to put our--our fortunes, our freedom, in
the event that we're accused of a crime, maybe even our life if
there could be a death penalty involved, our careers, in the
case of the suit that you all were involved in. We willing do
that. And the way we do it is interesting. You all may not know
this.
The lawyers here certainly know it. When I filed a case in
the U.S. District Court in Arizona, I didn't know which judge I
was going to get. There were about 10. There was one I hoped I
didn't get, but I knew the other nine, it didn't matter. They
would all approach--they were Democrats, they were Republicans.
But I didn't know because it's the next one in order and the
lawyers don't know the order, so it's almost by lot. But we had
confidence that we could put our client's issue before the
court and that justice would be done because that's the way our
system works. And over 220 years, the rule of law has been
established in this country by judges applying the law fairly
and impartially. Over time, the precedents have been built up.
And what struck me about what you all had--I'm talking
about the two of you--to go through, is first of all, you were
confronted with a judge who, in a very thorough decision, said
``you lose''. Then you appeal to the Second Circuit in a pro
curium opinion, and you all know now what that is all too well.
The court didn't even write about it and said, ``no, you lose
again''. Then the day that you got the results from the Supreme
Court, just, what's the difference between what you felt at the
first situation and when you got the news about the Supreme
Court, about your confidence in our system?
Mr. Vargas. I tried to say earlier that this is exactly how
this country was built. This is why we're so great, because,
you know, you can work hard and you can go after the things
that you want in this--in this country. And, you know, you're
going to be successful, you know, but you have to apply
yourself. And those are the things that I tried to instill in--
in my kids, and I'll always put that forth. And I'll speak with
my accent so that they can see that it's a great country, you
know, and that's why you need to work hard.
Mr. Ricci. The price of democracy is vigilance, to be
willing to participate--and the original feeling was, you know,
we always--through our attorneys, always went back to that
process and said, this is America. If we keep going forward,
the process will work. That, at the end, to be able to look at
my son and say, you know, I haven't been there for you, but to
look at him and say this is a--this is an unbelievable civics
lesson--lesson, that if you participate in democracy, that's
how it all works. And I thank you, Senator.
Senator Kyl. And I thank you. I hope that all of you will
have confidence in our legal system in the future. Everybody
here, again, regardless of position, will really stand in awe
at a system which, in our country, year in and year out, has
proved to be a very, very good system for our people.
Thank you.
Senator Cardin. Well, Senator Kyl, I want to thank you for
your questions and the responses. I think it was the right way
for the record to reflect the end of this panel, which has
been, I think, very, very helpful to us in the record on the
confirmation process for Judge Sotomayor.
I want to thank Chairman Leahy for allowing me to chair
this panel. We've had a very distinguished panel, all eight of
you, we thank you for being here. I particularly want to thank
Mayor Bloomberg for taking the time to come from New York. I
mention him because not only--does he do a great job as mayor,
but he has had an important role at Johns Hopkins University
and we very much appreciate that.
And to Mr. Morgenthau, you are the model for the Nation in
the District Attorney's Office, and it's--its a real honor to
have you before our Committee and we thank you for your energy
and continuation in public service.
And to Firefighter Ricci and to Lieutenant Vargas, I
personally want to thank you for being here. You put a face on
the issues. We--look at cases and we talk about the impact, but
it affects real people, and real lives, and real families. I
think you really have added to today's hearing by your personal
stories. Each one of us thank you for your public service, and
we thank you for your belief in our Nation and for the
testimony that you have given to this Committee. It's been
extremely helpful to each one of us on--the Judiciary
Committee.
And with that, we are going to take a 5-minute recess. When
we return, Senator Klobuchar will be chairing the next panel.
[Whereupon, at 4:20 p.m., the Committee was recessed.]
After Recess [4:29 p.m.]
Senator Klobuchar. I think we are going to start our third
panel here. If everyone could be seated. I will warn those of
you out there, anyone that has asked David Cone to sign a
baseball, you must ask all seven of our other panelists as
well.
We are going to start by getting sworn in. Would you please
stand? Raise your right hand. Do you affirm that the testimony
you are about to give before the committee will be the truth,
the whole truth, and nothing but the truth, so help you God?
Thank you.
We are going to start. I will introduce each of you and
then you will give your 5 minutes of testimony and then we will
have questions after that. We are going to start here with Mr.
Freeh. Louis Freeh is the former Director of the Federal Bureau
of Investigation whose career in the Department of Justice
began in 1975 when he became a special agent in the FBI.
Mr. Freeh has a long and distinguished career as a public
servant under both Democratic and Republican Presidents. He was
appointed by President George H. W. Bush as a Federal District
Court judge on the Southern District of New York. He was also a
career Federal prosecutor in the United States Attorney
General's Office for the Southern District of New York, serving
as Chief of the Organized Crime Unit, Deputy United States
attorney and Associate United States attorney.
He graduated from Rutgers Law School and has an LOM degree
in criminal law from New York University Law School. I look
forward to your testimony, Mr. Freeh.
STATEMENT OF LOUIS FREEH, FORMER DIRECTOR, FEDERAL BUREAU OF
INVESTIGATION
Mr. Freeh. Thank you very much, Senator. Good afternoon,
Senator Sessions, good afternoon to you. It is a great
privilege to be before the committee, the committee where I
have appeared over 100 times and it is always a pleasure to be
here.
There are many friends on the committee who I have seen
over the last few days. You have a prepared statement from me.
As Senator Sessions knows, I generally don't read my opening
statements which has gotten me in trouble with OMB over the
years, but I thought it might be good just to talk and tell you
why I'm here.
I have had the privilege to work with great judges and a
few people who are truly legendary judges. Let me just mention
a couple. I served on the District Court with Constance Baker
Motley who before she was a judge had those qualities of
fairness and open-mindedness and commitment to the rule of law
that I think we wish to see in our judges.
The last case I tried as a judge was in the District of
Minnesota before Judge Devitt. It was a case which by the way,
Judge Sessions, Senator Sessions and I worked on together. He
was the Attorney General of Alabama, great Attorney General,
and I was an Assistant U.S. Attorney working on the case. It
was the murder of a Federal judge. It was one of the few tragic
times in our history when a Federal judge was murdered and the
case was tried before Judge Devitt.
Judge Devitt, who many of his peers said was the judge from
central casting, was the model of judicial conduct and
commitment. The jury instruction book, Devitt and Blackmun, was
named after him. The Devitt Award, which is probably the most
prestigious judicial award, is named after him. He was actually
one of my mentors when I went on the Southern District bench.
I was sworn in as FBI Director by Judge Frank Johnson, who
as someone has mentioned here before, was a legendary judicial
hero from Winston County, Alabama. He, together with a handful
of other Republican judges, really changed the tide of history
by their commitment to the law and to civil rights. Their
fearlessness, honesty, and integrity with which they took
office--an example to all judges.
So it is my pleasure to recommend to the committee the
confirmation of this outstanding judge, Sonia Sotomayor. I want
to talk a little bit about her judicial experience. I have been
here or listening to these proceedings for the last few days. I
think I may be the only lawyer who has actually been with her
in a courtroom. Since in my view real life experience is the
best indicator of what a judge will do in the future--how they
behaved, conducted, wrote and decided matters as a judge.
As has been mentioned before, this candidate has an
enormous and rich judicial record, 17 years, thousands of
opinions, all the things that you want to look for as you make
your evaluation.
The process by which Judge Sotomayor comes here before you
is quite extensive. You have the President and his reviewers,
own investigation, you have the Bar Associations, this
committee. You have the FBI that conducted now three background
investigations. I was actually Director when the second one was
done.
You have any and all information that has come from the
public, from the citizens, Americans. You have reputational
evidence from other judges, from lawyers who had appeared
before her.
My association with her began in 1992. She was a new judge
on the Southern District and we had this tradition where the
second newest judge would mentor the new judge. Some of us
didn't think it was the wisest rule to have, since I had about
9 months on the bench when she was entrusted to my care, so to
speak.
I actually sat with her in court and sat with her during
trials. I helped review opinions that she asked me to look at.
My law clerks were encamped with her law clerks.
What I want to communicate to you in the very short period
remaining is Judge Sotomayor's enormous judicial integrity and
commitment to finding the facts, to being open minded, to being
fair. She struggled and deliberated in making sure she had all
the facts, making sure she had the right law, following the law
and being the kind of judge that I think we would all be proud
of.
Speeches are important and it is great the way you all have
considered that so carefully, but when you enter the courtroom
and you put the judicial robe on, just as you assume the
authority when you take your committee, it is a whole different
set of influences and immense power and influence that takes
over.
When Judge Sotomayor has been on the bench, what she has
written, when she has argued, the way she has conducted
herself, I think we can very safely predict this is going to be
an outstanding judge with all the qualities that I know that
you would want. So I urge you all to support her. Thank you
very much.
Senator Klobuchar. Thank you very much. Thank you for your
testimony. Next we have Chuck Canterbury. Chuck Canterbury is
the National President of the Fraternal Order of Police, one of
the nation's largest and most prominent voices for law
enforcement officers.
Mr. Canterbury has served in numerous capacities in the
organization including national Vice President and national
Second Vice President. He has 25 years of experience in law
enforcement where he worked as a police officer in Horry
County, South Carolina. Maybe you know Lindsey Graham, one of
our members here. In only the best ways, I am sure.
We look very much forward to your testimony. Thank you, Mr.
Canterbury.
STATEMENT OF CHUCK CANTERBURY, NATIONAL PRESIDENT, FRATERNAL
ORDER OF POLICE
Mr. Canterbury. Thank you, Madam Chair, Ranking Member
Sessions, Senator Hatch. It is a pleasure to be here today to
offer the support of 327,000 rank and file police officers, my
members in the Fraternal Order of Police.
It is my pleasure to testify in support of the nomination
of Judge Sonia Sotomayor to the Supreme Court. Speaking as a
law enforcement officer, I think it says a lot about the
character of a young person who graduated from Yale and then
accepted her first job as a poorly paid prosecutor in the
District of Manhattan. Yet that is exactly what Judge Sotomayor
did, as my members do in every city in America.
She spent 5 years with that office, prosecuted many
criminal cases, including a triple homicide and she forged an
excellent working relationship with the men and women working
the beat in Manhattan. She earned their respect and a
reputation as being tough, which in my profession is a
compliment.
As an appellate judge, she has participated in over 3,000
panel decisions and authored roughly 400 opinions, handling
difficult issues of constitutional law, complex procedural
matters and lawsuits involving complicated business
organizations.
Some of her critics have pounced on a few of those
decisions as well as some of the comments made during speaking
engagements and have engaged in some pretty wild speculation as
to what she would do as a Supreme Court Justice.
As a law enforcement officer, I prefer to rely on evidence
and fact and not speculation to reach those conclusions.
One such area of speculation is on her feelings toward our
right to bear arms as guaranteed by the Second Amendment. I
want no mistake to be made. I take a back seat to no one in my
reverence for the Second Amendment. In fact, if I thought that
Judge Sotomayor's presence on the court posed a threat to my
Second Amendment rights, I would not be supporting her here
today.
The facts, as some have already pointed out, reflect a
brilliant and thoughtful jurist respectful of the law and
committed to its appropriate enforcement.
Over the course of her career, she has analyzed each case
on its merits. To me, that's evidence of strong commitment to
duty and to the law, two characteristics that we should expect
from all of our judges.
I want to cite a few cases which I'm familiar with because
they deal with issues that every beat cop in the United States
has dealt with. In the United States v. Fausto, an offender
indicated on 242 counts relating to child pornography sought to
have evidence against him thrown out because a search warrant
that was sworn out lacked probable cause.
Judge Sotomayor's ruling held that the error was committed
by the District Court issuing the warrant, not the officers who
executed it. The conviction was upheld.
In the United States v. Santa, she ruled that law
enforcement officers executing a search of a suspect based on
an arrest warrant they believed to be active and valid should
not result in the suppression of evidence even if that warrant
had expired.
In the United States v. Howard, she overturned the District
Court's decision to suppress evidence of drug trafficking by
finding warrantless automobile searches to be constitutional.
In the United States v. Clark, she held that the law
enforcement officers did not violate the Fourth Amendment by
asking to see the VIN plate under the hood of a vehicle after
discovering that the VIN plate on the dashboard was missing.
All of these rulings show that Judge Sotomayor got at least
as much of her legal education from her 5 years as a prosecutor
as she did at Yale Law School. These 5 years in my view reflect
the same kind of commitment to the law that I have seen in the
officers that I represent.
She has clearly demonstrated that she understands the fine
line that police officers must walk and in her rulings reflect
a working knowledge, not a theoretical knowledge, of the
everyday realities of law enforcement work.
After reviewing her record, I can say that Judge Sotomayor
is a jurist in whom any beat cop could have confidence. It is
for that reason that the National Executive Board of the FOP
voted unanimously to support her nomination and we urge you to
as well. Thank you very much.
Senator Klobuchar. Thank you very much, Mr. Canterbury.
Next is David Cone. David Cone is a former major league
baseball pitcher who over an 18-year career played for five
teams in both the American and National Leagues.
Mr. Cone won the American League Cy Young Award in 1994 and
pitched a perfect game in 1999 as a member of the New York
Yankees. He was a member of the Major League Baseball Player's
Association throughout his major league career and was an
officer from 1994 through 2000. Thank you very much for being
here, Mr. Cone.
STATEMENT OF DAVID CONE, FORMER MAJOR LEAGUE BASEBALL PLAYER
Mr. Cone. Thank you, Senator Klobuchar, Senator Sessions,
Senator Hatch. Nice to see you again.
On behalf of all major league players both former and
current, I greatly appreciate the opportunity to acknowledge
the unique role that Judge Sonia Sotomayer played in preserving
America's pasttime.
As you know, I am not a lawyer, much less a Supreme Court
scholar. I was a professional baseball player from the time I
was drafted out of high school in 1981 until the time I retired
in 2003. I was also a union member and an officer of the Major
League Baseball Players' Association.
As is well known, major league baseball has a long history
of acrimonious labor relations. It was not until the 1970's
that players first gained the rights of free agency and salary
arbitration. This meant that for the first time ever, players
were able to earn what they were worth and have some choice
about where they played.
The next 20 years were quite difficult. There was a lockout
or strike at the end of every contract. To the players, every
dispute seemed to center on the owners' desire to roll back
free agency rights the players had won. But 1994 was the worst.
The owners said that they wanted a salary cap and refused a
promise that they would abide by the rules of the just expired
contract after the season ended. We had no choice. The players
went on strike in August 1994.
I should note that this was before Congress passed the Curt
Flood Act authored by Senators Hatch and Leahy which made it
clear that baseball's anti-trust exemption could not be used to
undermine Federal law.
In response, the owners canceled the remainder of the
season which meant that there would be no World Series.
Discussions continued through the fall and the early winter but
were fruitless. In December 1994, the owners unilaterally
implemented a salary cap and imposed new rules and conditions
of employment which would have made free agency virtually
meaningless.
They announced they would start the 1995 season with so-
called replacement players instead of major leaguers. We did
not think the owners were negotiating in good faith as they
were required to do under Federal law. We went to the National
Labor Relations Board. The board agreed with us and went to
Federal court to seek an injunction against the owners'
unilateral changes.
The United States district judge who drew the case was
Judge Sotomayor. The rest is history, or at least baseball
history. Judge Sotomayor found that the owners had engaged in
bad faith bargaining. She issued an injunction. Her decision
stopped the owners from imposing new work rules, ended our
strike and got us all back on the field.
The words she wrote cut right to the heart of the matter,
and I quote: `This strike is about more than just whether the
players and owners will resolve their differences. It is also
about how the principles embodied by Federal law operate. This
strike has placed the entire concept of collective bargaining
on trial. Issuing an injunction by opening day is important to
ensure that the symbolic value of that day is not tainted by an
unfair labor practice and the NLRB's inability to take
effective steps against its perpetuation.'
Judge Sotomayor grasped not only the complexity of the
case, but its importance to our sport. Her decision was upheld
by a unanimous Court of Appeals panel comprised of judges
appointed by different Presidents from different parties with
different judicial philosophies.
On the day he announced her nomination, President Obama
observed that some have said Judge Sotomayor saved baseball.
Others may think this is an overstatement. But look at it this
way. A lot of people, both inside and outside of baseball tried
to settle the dispute. Presidents, special mediators,
Secretaries of Labor, Members of Congress all tried to help but
were not successful. With one decision, Judge Sotomayor changed
the entire dispute.
Her ruling rescued the 1995 baseball season and forced the
parties to resume real negotiations. The negotiations were not
easy, but ultimately were successful which in turn led to an
improved relationship between the owners and the players.
Today, baseball is currently enjoying a run of more than 14
years without interruption, a record that would have been
inconceivable in the 1990's.
I believe all of us who love the game, players, owners and
fans, are in her debt. If Judge Sotomayor is confirmed, I hope
the rest of the country will realize as the players did in 1995
that it can be a good thing to have a judge or a Justice on the
Supreme Court who recognizes that the law cannot always be
separated from the realities involved in the disputes being
decided.
Thank you again and I would be glad to answer any questions
you may have.
Senator Klobuchar. Thank you very much, Mr. Cone. Our next
witness is Kate Stith. She is the Lafayette S. Foster Professor
of Law at Yale Law School where she teaches and writes in the
areas of criminal law, criminal procedure and constitutional
law.
Previously Professor Stith was an Assistant U.S. Attorney
for the Southern District of New York where she prosecuted
white collar and organized crime cases. After graduating from
Harvard Law School, she clerked for Judge Carl McGowan of the
U.S. Court of Appeals for the District of Columbia and for
Associate Justice Byron White on the Supreme Court. Thank you
for being here and we look forward to your testimony.
STATEMENT OF KATE STITH, LAFAYETTE S. FOSTER PROFESSOR OF LAW,
YALE LAW SCHOOL
Professor Stith. I thank you, Senators, for the opportunity
to comment on the nomination of Judge Sonia Sotomayor whom I
have known since she became a judge in 1992.
As you noted before, I joined the faculty at Yale Law
School in 1985. I was a Federal prosecutor in New York and I
was also a Special Assistant at the Department of Justice in
Washington.
While a Federal prosecutor in New York, I had the pleasure
of working with Louis Freeh. It is my judgment that this is an
exceptionally strong nomination. My judgment has nothing to do
with Judge Sotomayor's sex, ethnicity or personal story. I am
judging her on the same criteria that I used when I was asked
by the Yale Daily News some years ago whether Samuel Alito
would be a strong nomination to the Supreme Court. I answered
yes then and I answer yes now.
Specifically I am confident that Sonia Sotomayor would
serve this nation with powerful intelligence, vigor, rectitude
and an abiding commitment to the Constitution. Moreover, her
service as a state prosecutor and a District judge will make
her unique on the court to which she will ascend.
My views on her are informed by many sources. First, I have
been unusually involved, at least for a professor, with members
of the bar and bench within the Second Circuit.
Among these lawyers and judges who know her best, she is
held in the highest repute across the board. My views are also
based on my many conversations with her. Among the most telling
are those in which she has described the attributes she is
looking for in prospective law clerks.
Through these discussions over more than 15 years, I
believe I gained insight into her view of the role of a judge.
The bottom line is this. What she wants in her law clerks are
the qualities we all want in a judge.
She wants to make sure first that they are serious about
the law and not about politics or professional opportunities
after the clerkship. They must be serious about all areas of
the law. For Judge Sotomayor, there are no favorite areas.
Which brings me to a third quality she wants in her clerks.
The prospective clerk must be willing to work his or her
fingers to the bone if necessary in order to ensure that the
opinions Judge Sotomayor writes and those she joins do not miss
a relevant precedent and do not get a fact wrong.
There is an overriding fourth quality that the judge
considers critical. Is the prospective clerk willing to take
criticism, work harder, and where appropriate rethink her
initial assessment or his initial assessment of the issues?
Over the years, the judge's former clerks have told me time
and again that they greatly appreciate her devoted commitment
to the law, as a result of which they were held to higher
standards and learned more than in any other time of their
lives.
Her conception of the role of a judge is borne out by her
judicial opinions that I have read in the area of criminal law
and procedure.
On criminal procedure, let me just note that the usual
categories of left and right do not easily apply. I would say
that her decisions on the whole reflect more pragmatism and
less formalism than those of, say, Justice Souter. Sometimes
this cuts for the government, sometimes it cuts against it.
I want to focus in particular on one substantive criminal
law case, United States v. George decided in 2004. Judge
Sotomayor's unanimous 16-page opinion in that case concerns the
meaning of the mens rea, term willfully in a Federal statute
that makes it a crime to waillfully falsify a passport
application.
Her opinion makes clear that the role of the courts is not
to determine what level of mens rea they think should apply,
but what Congress intended when it wrote the word willfully.
The opinion then embarks on an heroic effort to figure out
what Congress meant in this particular statute. The opinion is
so clarifying and insightful that my co-authors and I decided
to include a long excerpt from it in our forthcoming criminal
law case book.
But the significance of the case isn't only that it is an
excellent opinion. It also resulted from the willingness of
Judge Sotomayor and two colleagues to reconsider their initial
decision when additional arguments were brought to their
attention, even though this meant that a different party would
prevail.
Their aim was neither to affirm the conviction nor to
reverse the conviction, but to find the best resolution of the
complex and conflicting precedents on this mens rea issue.
In conclusion, I submit that Judge Sotomayor's opinion in
the George case reveals four judicial qualities that she
clearly possesses.
First, she cared deeply about the issue at hand, no matter
how minor or word parsing it may seem even to lawyers. Second,
she was willing to reassess her initial judgment and dig
deeper.
Third, her legal analysis was exceptionally clear and
astute. Fourth, she had no agenda other than trying to get the
law right, and in a society committed to the rule of law,
trying to get the law right is what it means to be fair and
impartial.
This is a great judge. I urge you to vote in favor of her
confirmation. Thank you, Senators.
Senator Klobuchar. Thank you very much. We next have Dr.
Charmaine Yoest who is the President and CEO of Americans
United for Life, the first national pro-life organization in
the nation whose legal strategists have been involved in every
pro-life case before the United States Supreme Court since Roe
v. Wade.
Dr. Yoest began her career in the White House during the
Reagan administration. She has also worked as the Project
Director of the Family Gender and Tenure Project at the
University of Virginia and as a Vice President at the Family
Research Council. Welcome, Dr. Yoest. We look forward to your
testimony.
STATEMENT OF DR. CHARMAINE YOEST, AMERICANS UNITED FOR LIFE
Dr. Yoest. Thank you very much, Senator Klobuchar, Ranking
Member Sessions and members of the committee for inviting me to
testify before you today.
As you said, I am here on behalf of Americans United for
Life, and we are the nation's oldest pro-life legal
organization. Our vision at AUL is a nation where everyone is
welcomed in life and protected in law.
We have been committed to defending human life through
vigorous judicial legislative and educational efforts since
1971 and we have been involved in every abortion related case
before the United States Supreme Court beginning with Roe v.
Wade.
I am here today because of AUL's deep concern about the
nomination of Judge Sonia Sotomayor to the United States
Supreme Court. A vote to confirm Judge Sotomayor to our highest
court is a vote for unrestricted abortion on demand and a move
toward elevating abortion as a fundamental right equal to our
freedom of religion and freedom of speech.
A nominee's judicial philosophy goes to the heart of his or
her qualifications to serve on the United States Supreme Court.
Based on Judge Sotomayor's record of prior statements combined
with her over a decade-long service on the board of the Puerto
Rican Legal Defense and Education Fund, Judge Sotomayor's
judicial philosophy makes her unqualified to serve on the
Supreme Court.
When judges fail to respect their limited role under our
Constitution by imposing their personal preferences regarding
public policy through their decisions, our entire judicial
system of equal justice under the law is corrupted.
In a series of speeches as we have heard chronicled here
this week, Judge Sotomayor has indicated a troubling
willingness to celebrate her own personal preferences and
characteristics.
Several references have been made during this hearing to
the judge's 2001 wise Latina speech. I would note that in that
very same speech she stated that `personal experiences affect
the facts that judges choose to see.' Not just what they do
see, but what they choose to see.
Of even greater concern, Judge Sotomayor stated in the same
lecture that `the aspiration to impartiality is just that. It
is an aspiration.'
However, impartiality is not merely an aspiration.
Impartiality is a discipline and its necessity is enshrined in
the judicial oath. A judge who injects personal experiences
into a decision corrupts the very foundations of our judicial
system.
Perhaps the clearest example of Judge Sotomayor's
problematic philosophy is her April 2009 speech in which she
said, `Ideas have no boundaries. Ideas are what set our
creative juices flowing. Ideas are ideas and whatever their
source, if it persuades you then you are going to adopt its
reasoning.'
We see her here building a case for judicial activism, yet
creativity is the approach Americans want least from a judge. A
judge who approaches the bench seeking to `implement ideas' is
an activist judge by definition.
The laboratories of democracy in our system should remain
firmly lodged in the state legislatures, not preempted from the
court.
These troubling speeches did not occur in isolation.
Looking at the totality of the judge's record must include her
12 years of service on the board of the Puerto Rican Legal
Defense and Education Fund. During that time, the organization
filed not one, but six amicus briefs in five-abortion related
cases before the Supreme Court.
Given her particular emphasis on personal viewpoint in
jurisprudence, we believe these cases become uniquely relevant
in providing insight into her judicial philosophy.
Judge Sotomayor served the fund as a member and vice
president of the board of directors and also as chairperson of
the Education and Litigation Committees and has been described
as an involved and ardent supporter of their various legal
efforts.
What then does her tenure with the organization tell us
about her judicial philosophy? The Fund briefs consistently
argued the position that abortion is a fundamental right,
expressing hostility to any regulation of abortion, including
parental notification, informed consent and bans on partial
birth abortion.
For example, in Planned Parenthood v. Casey, the Fund
compared abortion to the First Amendment right to free speech
and argued that any burden on the right to abortion was
unconstitutional.
In Ohio v. Akron and Casey, the Fund asked the court to
strike down parental involvement statutes insisting that minors
should be `protected against parental involvement that might
prevent or instruct the exercise of their right to choose.'
In Williams v. Zbaraz, the Fund argued that failure to
publicly fund abortions was discriminatory. In Webster v.
Reproductive Health Services, the Fund argued against, against
a requirement that physicians personally counsel patients. They
even argued in Webster that strict scrutiny is required because
of the preciousness of the fundamental right to abortion,
underscoring not just a willingness to engage in creative
jurisprudence, but an ideological commitment to advancing an
extremist abortion agenda.
In conclusion, I would like to end on a personal note
related to the Fund briefs. We have heard quite a bit about
settled versus unsettled this week, and the one thing we do
know, that as we have seen this week, this country is still
very unsettled about abortion doctrine.
However, among the American people there are some elements
of abortion related policy that absolutely do provide common
ground. Preeminent among these is a core American belief in the
bonds between parent and child.
I have five children and the notion that my daughters might
be taken for a surgical procedure without my knowledge is
horrific. This common sense commitment to protect our children
is overwhelmingly shared among all of those who identify
themselves as pro-life and pro-choice, and yet it is precisely
these kinds of common sense policies like parental notification
that are threatened by this nomination.
In the Fund's brief in Ohio v. Akron, they argued that `the
court would also need to consider whether the state through
giving the parents confidential information has enhanced these
parents' ability to indoctrinate, control or punish their minor
daughters who choose abortion.'
This is a viewpoint far outside the mainstream of American
public opinion and it points to another truth about the Fund
arguments in their world view which the evidence indicates
Judge Sotomayor shares. While arguing to promote abortion to a
fundamental right equivalent to the freedom of religion or
speech, they actually wish to elevate it even further, placing
it singularly alone among rights beyond the reach of the
American public to regulate or even debate. Thank you very
much.
Senator Klobuchar. Thank you very much. Next we have Sandy
Froman. Sandy Froman is the Past President of the National
Rifle Association of America. Ms. Froman is also currently a
member of the NRA Board of Directors where she has served since
1992 and in 2007 was unanimously elected to a lifetime
appointment on the NRA Council.
A graduate of Stanford University and Harvard Law School,
Ms. Froman is a practicing attorney and speaks and writes
regularly on the Second Amendment. Welcome to the committee, we
look forward to your testimony.
STATEMENT OF SANDY FROMAN, ESQ., ATTORNEY, GUN RIGHTS ADVOCATE,
AND FORMER PRESIDENT OF THE NATIONAL RIFLE ASSOCIATION
Ms. Froman. Thank you, Madam Chair. Chairman Leahy, Ranking
Member Sessions, Senator Hatch, thank you for the opportunity
to appear before this committee today to comment on the
nomination of Sonia Sotomayor as it relates to her views on the
Second Amendment.
It is critical that a Supreme Court Justice understand and
appreciate the origin and meaning of the right of the people to
keep and bear arms, a right exercised and valued by almost 90
million American gun owners.
Yet Judge Sotomayor's record on the Second Amendment and
her unwillingness or inability to engage in any meaningful
analysis of this enumerated right when twice given the
opportunity to do so suggests either a lack of understanding of
Second Amendment jurisprudence or hostility to the right.
In 2004, Judge Sotomayor and two colleagues in U.S. v.
Sanchez Villar discussed the Second Amendment claim in a one-
sentence footnote holding without any analysis that the right
to possess a gun is clearly not a fundamental right.
Judge Sotomayor reiterated her view earlier this year as
par of a panel in Maloney v. Cuomo holding that the Second
Amendment is not a fundamental right, does not apply to the
states and that if an object is designed primarily as a weapon,
that is a sufficient basis for total prohibition even in the
home.
The Maloney court ignored directives and precedent from the
Supreme Court in last year's landmark case, District of
Columbia v. Heller which held that the Second Amendment
guarantees to all law abiding, responsible citizens the
individual right to arms, particularly for self-defense.
Although the Supreme Court in Heller warned against
applying the Supreme Court incorporation cases from the late
1800's without conducting a proper Fourteenth Amendment
inquiry, Judge Sotomayor's panel in Maloney did just that.
They cited the 1886 case of Presser v. Illinois decided
under the Privileges or Immunities Clause of the Fourteenth
Amendment for the position that the Second Amendment does not
limit the states and they ignored the Supreme Court's 2008
directive to conduct a Fourteenth Amendment analysis under the
modern doctrine of the Due Process Clause to determine if the
right is fundamental and should be incorporated.
By contrast, the Ninth Circuit in Nordyke v. King when
faced with the same incorporation question earlier this year
did follow the Supreme Court's directive and correctly
concluded that the Second Amendment is a fundamental right and
does apply to the states through the Due Process Clause.
Our Second Amendment rights are no less deserving of
protection against states and local governments than the First,
Fourth and Fifth Amendments, all of which have been
incorporated.
When faced with the most important question remaining after
Heller, whether the right to keep and bear arms is fundamental
and applies to the states, Judge Sotomayor dismissed the issue
with no substantive analysis.
She and her colleagues also failed to follow Supreme Court
precedent when they held that the New York statute could be
upheld if the government had a rational basis for the law. They
ignored that the Supreme Court in Heller rejected the rational
basis test for Second Amendment claims.
By failing to conduct a proper Fourteenth Amendment
analysis, the Maloney court evaded its judicial
responsibilities, offered no guidance to lower courts and
provided no assistance in framing the issue for resolution by
the Supreme Court.
Whenever an appellate judge fails to provide supporting
analysis for their conclusion or address serious constitutional
issues presented by the case, it is legitimate to ask whether
the judge reached that conclusion by application of the
Constitution and statutes or based on a political or social
agenda.
Judge Sotomayor's view robs the Second Amendment of any
real meaning. Under her view, the city of New Orleans' door-to-
door confiscation of firearms from law-abiding peaceable
citizens in the aftermath of Hurricane Katrina was
constitutional.
Preventing an individual from exercising what the Heller
court said was the Second Amendment's core lawful purpose of
self-defense is no less dangerous when accomplished by a state
law than by a Federal law.
The Second Amendment survives today by a single vote in the
Supreme Court. Both its application to the states and whether
there will be a meaningfully strict standard of review remain
to be decided.
Judge Sotomayor has already revealed her views and they are
contrary to the text, history and meaning of the Second and
Fourteenth Amendments. As a Circuit Court judge, she is
constrained by precedent. But as a Supreme Court Justice
appointed for life, she would be making precedent.
A super majority of Americans believe in an individual
personal right to arms. They deserve a Justice who will
interpret the Second Amendment in a fair and impartial manner
and write well crafted opinions worthy of respect from those of
us who must live by their decisions.
The President who nominated Judge Sotomayor has expressed
support for the city of Chicago's gun ban which is being
challenged in NRA v. Chicago, a case headed to the Supreme
Court.
Seating a Justice on the Supreme Court who does not treat
the Second Amendment as a fundamental right deserving of
protection against cities and states could do far more damage
to the right to keep and bear arms than any legislation passed
by Congress. Thank you.
Senator Klobuchar. Thank you very much for your testimony,
Ms. Froman.
Our next witness is David Kopel. He is currently the
Research Director of the Independence Institute in Golden,
Colorado and an Associate Policy Analyst at the CATO Institute.
He is also a contributor to the National Review Magazine.
He graduated from the University of Michigan Law School. Thank
you very much for being here. We look forward to your
testimony.
STATEMENT OF DAVID KOPEL, ESQ., INDEPENDENCE INSTITUTE
Mr. Kopel. The case of Sonia Sotomayor v. the Second
Amendment is not yet found in the record of Supreme Court
decisions. Yet if Judge Sotomayor is confirmed to the Supreme
Court, the opinions of the newest Justice may soon begin to
tell the story of a Justice with disregard for the exercise of
constitutional rights by tens of millions of Americans.
New York state is the only state in the union which
completely prohibits the peaceful possession of nunchaku, a
xenophobic ban enacted after the opening to China in the early
1970s after the growth of interest in martial arts.
In a colloquy with Senator Hatch on July 14, Judge
Sotomayor said that there was a rational basis for the ban
because nunchaku could injure or kill someone. The same point
could just as accurately be made about bows and arrows, swords
or guns. All of them are weapons and all of them can be used
for sporting purposes or for legitimate self-defense.
Judge Sotomayor's approach would allow states to ban
archery equipment with no more basis than declaring the
obvious, that bows are weapons. Even if there were no issue of
fundamental rights in this case, Judge Sotomayor's application
of the rational basis test was shallow and insufficiently
reasoned and it was contrary to Supreme Court precedent showing
that the rational basis test is supposed to involve a genuine
inquiry, not a mere repetition of a few statements made by
prejudice people who impose the law.
The plaintiff in Maloney had argued that even putting aside
the Second Amendment, the New York prohibition violated his
rights under the Fourteenth Amendment. There was no controlling
precedent on whether Mr. Maloney's activity involved an
unenumerated right protected by the Fourteenth Amendment.
Accordingly, Judge Sotomayor and her fellow Maloney
panelists should have provided a reasoned decision on the
issue. Yet Judge Sotomayor simply presumed with no legal
reasoning that Mr. Maloney's use of arms in his own home was
not part of the exercise of a fundamental right.
Testifying before this committee on July 14, Judge
Sotomayor provided further examples of her troubling attitude
to the right to arms. She told Senator Hatch that the Heller
decision had authorized gun control laws which could pass the
rational basis test.
To the contrary, the Heller decision had explicitly
rejected the weak standard of review which Justice had argued
for in his dissent.
Both Judge Sotomayor and some of her advocates have pointed
to the Seventh Circuit's decision in NRA v. Chicago as
retrospectively validating her actions in Maloney. The argument
is unpersuasive. Both the Maloney and the NRA courts cited 19th
century precedents which had said that the Fourteenth
Amendment's ``privileges or immunities'' clause did not make
the Second Amendment enforceable against the States.
However, as the Heller decision itself had pointed out,
those cases ``did not engage in the sort of 14th Amendment
inquiry required by our later cases.''
In particular, the later cases require an analysis under a
separate provision of the 14th Amendment, the Due Process
clause. Notably, the Seventh Circuit addressed this very issue
and provided a detailed argument for why the existence of
modern incorporation under the Due Process clause would not
change the result in the case at bar. In contrast, Judge
Sotomayor's per curiam opinion in Maloney did not even
acknowledge the existence of the issue.
Various advocates have made the argument that since Maloney
and NRA reached the same result, and since two of the judges in
NRA v. Chicago were Republican appointees who were often called
``conservatives,'' then the Maloney opinion must be all right.
This argument is valid only if one presumes that conservatives
and/or Republican appointees always meet the standard of strong
protectiveness for constitutional rights which should be
required for any Supreme Court nominee.
In the case of the NRA v. Chicago judges, that standard was
plainly not met. The Seventh Circuit judges actually made the
policy argument that the Second Amendment should not be
incorporated because incorporation would prevent states from
outlawing self-defense by people who are attacked in their own
homes.
A wise judge demonstrates and builds respect for the rule
of law by writing opinions which carefully examine the relevant
legal issues, and which provide careful written explanations
for the judge's decisions on those issues. Judge Sotomayor's
record on arms rights cases has been the opposite. Her glib and
dismissive attitude toward the right is manifest in her
decisions and has been further demonstrated by her testimony
before this Committee. In Sonia Sotomayor's America, the
peaceful citizens who possess firearms, bows, or martial arts
instruments have no rights which a State is bound to respect,
and those citizens are not even worthy of a serious explanation
as to why.
Thank you.
[The prepared statement of Mr. Kopel appear as a submission
for the record.]
Senator Klobuchar. Thank you very much. And did I say your
name correctly? Oh, well, that was good. Thank you.
Next we have Ilya Somin, and Professor Somin is an
assistant professor at George Mason University School of Law.
His research focuses on constitutional law, property law, and
the study of popular political participation and its
implications for constitutional democracy. He currently serves
as co-editor of the Supreme Court Economic Review, one of the
country's top-rated law and economic journals. After receiving
his M.A. in Political Science from Harvard University and his
law degree from Yale Law School, Professor Somin clerked for
Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth
Circuit.
I look forward to your testimony, Mr. Somin. Thank you for
being here.
STATEMENT OF ILYA SOMIN, PROFESSOR, GEORGE MASON UNIVERSITY
SCHOOL OF LAW
Mr. Somin. Thank you very much. I would like to thank the
Committee for the opportunity to testify and, even more
importantly, for your interest in the issue of constitutional
property rights that I will be speaking about. For the Founding
Fathers, the protection of private property was one of the most
important reasons for the establishment of the Constitution in
the first place.
As President Barack Obama has written, ``Our Constitution
places the ownership of private property at the very heart of
our system of liberty.''
Unfortunately, the Supreme Court and other Federal courts
have often given private property rights short shrift and have
denied them the sort of protection that is routinely extended
to other constitutional rights. I hope the Committee's interest
in this issue will over time help begin to change that.
In my oral testimony today, I will consider Judge
Sotomayor's best property rights decision, Didden v. Village of
Port Chester. In my written testimony, which I hope will be
entered into the record, I also discuss her decision in
Krimstock v. Kelly.
The important background to the Didden decision is the
Supreme Court's 2005 decision in the case of Kelo v. city of
New London, which addressed the Fifth Amendment's requirement
that private property can only be taken by the Government for a
public use. Unfortunately, a closely divided 5-4 Supreme Court
ruled in Kelo that it is permissible to take property from one
private individual and give it to another solely for purposes
of promoting economic development, even if there is not any
evidence that the promised development will actually occur.
This licensed numerous abusive takings in many parts of the
country. Indeed, since World War II, economic development and
other similar takings have displaced hundreds of thousands of
people, many of them poor or ethnic minorities. But as broad as
the Kelo decision was in upholding a wide range of abusive
takings, Judge Sotomayor's decision in the Didden case went
even further than Kelo in doing so.
The facts of Didden are as follows: In 1999, the village of
Port Chester in New York declared a redevelopment area in part
of its territory where, therefore, property could be taken by
eminent domain in order to promote development. And they also
appointed a person named Gregg Wasser, a powerful developer, as
the main developer for the area.
In 2003, Bart Didden and Dominick Bologna, two property
owners in the area, approached the village for permission to
build a CVS on their property, and they were directed by Mr.
Wasser--they were directed to Mr. Wasser, who told them that
they must either pay him $800,000 or give him a 50-percent
stake in their business. Otherwise, he threatened he would have
the village condemn their property. When they refused his
demands, the property was condemned almost immediately after
that.
Now, in her decision with two other members of the Second
Circuit, the panel that Judge Sotomayor was on upheld this
condemnation in a very short, cursory summary order that
included almost no analysis. And though it is true that they
cited the Kelo decision, they made no mention of the fact that
Kelo actually stated that pretextual takings are still
forbidden under the Constitution--pretextual takings being
defined as takings where the official rationale for the
condemnation was merely a pretext for a plan to benefit a
powerful private party of some sort.
There is some controversy over what counts as a pretextual
taking and what does not. But if anything does count as a
pretextual taking, it is surely a case like Didden, where
essentially the property would not have been condemned but for
the owner's refusal to pay a private party $800,000. Surely, if
anything is a pretextual taking, it is a case where property is
condemned as part of a scheme for leverage to enable a private
individual to extort money from the owners.
In her oral testimony before this Committee, Judge
Sotomayor said that her decision was based in part on a belief
that the property owners had filed their case too late. I think
the important thing to remember about this statement is that in
her own decision, she actually specifically wrote that she
would have ruled the same way ``even if the appellant's claims
were not time-barred.'' So she claimed that even regardless of
when they filed their case, she would have come out the same
way.
Moreover, as I discuss in my written testimony, her statute
of limitations holding was entirely dependent on the
substantive property rights holding as well, and I can discuss
that further in questions if the Senators are interested.
I think the bottom line about this case is its extreme
nature. If one is not willing to strike down a condemnation in
a situation like this; if one is not willing to say that this
is not a public use, it is not clear that there are any limits
whatsoever on the Government's ability to take private property
for the benefit of politically powerful individuals.
And on that note, I am happy to conclude, and I thank you
very much for the opportunity to testify.
[The prepared statement of Mr. Somin appear as a submission
for the record.]
Senator Klobuchar. Thank you very much for your testimony.
We are not going to have each Senator ask 5 minutes of
questions, and I will start with Director Freeh. You are the
only panelist who has had the opportunity to sit with Judge
Sotomayor as a fellow judge. What did you learn about her and
her approach to judging that led you to endorse her?
Mr. Freeh. You know, I think all the qualities that we have
heard in this hearing as the optimal qualities--mainstream,
fair-mindedness, preparedness, integrity, knowledge and
intellect, patience, part of being a good judge is listening
and making sure that the parties are all heard, and really, you
know, her sense of commitment to getting all the facts and then
applying the law.
As you said, Senator, I not only served with her but
actually was with her in court, as I mentioned in my opening
statement. As we say, I ``second-sat'' her in a number of her
first trials where I actually observed her entire conduct of
the trial, preparation, motion practice, instruction to juries,
how she treated witnesses. And I think of all the things I
observed over a 6-month period was really, you know, how
detailed she was in preparing a written opinion.
So this was never a judge that had a predisposition or a
pre-notion or a personal agenda, but struggled and committed a
lot of time and effort to getting the facts and applying the
law. And I think she did that as a brand-new judge. She has
done it for 17 years. And I think we can be assured she will do
it as a Justice.
Senator Klobuchar. As someone who was appointed by
President George H.W. Bush, do you have any reservations about
her ability to be a Supreme Court Justice without activism or
an ideological agenda?
Mr. Freeh. No, I am totally confident that this would be an
outstanding judge, and whether it was President Obama or
someone else, as you mentioned, Judge Sotomayor was first
appointed by George Bush, the first George Bush. I was also.
You know, I think she has all of the mainstream, moderate,
restrained adherence to the law qualities that we want, and I
think we are going to be very proud of her.
Senator Klobuchar. Thank you.
Mr. Canterbury, you spent more than 25 years as an active-
duty police officer in South Carolina. I know what a difficult
job you had. From my previous job, I have been able to see it
firsthand. Are you confident that, if confirmed, Judge
Sotomayor has the background and judicial record to be a
Justice who will be mindful of the need for law enforcement to
protect our Nation and have a pragmatic view of law enforcement
issues?
Mr. Canterbury. We are very confident of that. Based on the
over 450 criminal cases that we reviewed, we felt that her
judgment was fair, tough, and balanced. Throughout all of the
cases that we reviewed, and looking at the totality of her
career, we feel very comfortable that she will make a fine
judge.
Senator Klobuchar. Thank you very much.
Just as I said Mr. Freeh was the only one on the panel that
served with Judge Sotomayor, Mr. Cone, you are the only one on
the panel that has pitched a perfect game, as far as I know.
Did you believe her to be fair when she ended the baseball
strike? I have to tell you that I thought your testimony--
people have for 4 days now talked about each specific case and
questioned a lot on different cases and were very thorough in
their questioning and their understanding. But I thought you so
succinctly described the effect that her ruling had on many,
many people across this country.
And what do you think that this decision says a little more
broadly about her approach to law in general and the impact of
her judicial philosophy on the lives of individual Americans?
Mr. Cone. Well, thank you, Senator. You know, from my
perspective, as I said in my statement, a lot of people tried
to end that dispute, including President Clinton--we were
called to the White House--special mediators, Members of
Congress. I spent weeks on end here in Washington lobbying
Congress on trying to get a partial repeal of the antitrust
exemption, which did happen, and Senator Hatch and Senator
Leahy certainly sponsored that bill, the Curt Flood Act, which
I think had an enormous impact as well. But Judge Sotomayor is
the one who made the tough, courageous call that put the
baseball players back on the field. You know, from my
perspective as a union member, we felt that we were in trouble,
that the game was in trouble. It was to the point of almost
being irreparably damaged. And she made the courageous decision
to put the game back on the field and get the two parties back
to the bargaining table and negotiating in good faith.
Senator Klobuchar. Thank you very much.
Senator Sessions.
Senator Sessions. Thank you, Madam Chairman. It is good to
be with you, and we are glad you are on this Committee.
Senator Klobuchar. Thank you.
Senator Sessions. Mr. Cone, I was reading a story about
statistical stuff the other day. It came to me that, you know,
if you throw a coin, it can land five times in a row on heads.
And so I wonder about that a little bit in an effort to have
racial harmony on test taking, because sometimes it is just
statistically so, which makes me think there is no way the
American League could have won--what? -12 out of the last 13
All-Star Games.
Mr. Cone. It makes you wonder, yes.
Senator Sessions. Two or three is about all they are worth,
right? Thank you for your testimony. We have enjoyed it.
Judge Freeh, nice to see you. I value your testimony,
always do, and I appreciate it very much.
I would note, I think you would agree with me, but former
President Bush, former former President Bush nominated Judge
Sotomayor as Senator Moynihan's pick. In other words, they had
a little deal that President Bush would appoint three judges, I
think, and Senator Moynihan would get to pick one, and he
nominated the recommendation of Senator Moynihan. Is that the
way you remember it?
Mr. Freeh. I think that is correct, but I also think he is
supporting this nomination now.
Senator Sessions. Okay. That is a good comment. You did
good.
Ms. Stith, thank you for your very insightful comments. I
appreciated that very much, and it is valuable to us.
Dr. Yoest, I was thinking about this organization, Puerto
Rican Legal Defense and Education Fund, PRLDEF, and do board
members of your organization know what lawsuits you are
pursuing and generally what the issues are?
Ms. Yoest. Thank you for that question, Senator.
Senator Sessions. Push your button.
Ms. Yoest. I was asked that question, actually, right after
Judge Sotomayor was nominated, and it was the day before my
board came to town for one of our annual meetings. And as I
have listened to the discussion of her relationship with the
fund as a board member, I have found the connection between her
association with the cases and her description to really strain
credulity.
The fact of the matter is you don't have to have read an
individual case or reviewed a particular point as a board
member to be intimately associated with it. The point of being
a board member for all of us who have dedicated our lives to
the nonprofit realm is to have oversight and to have
accountability and responsibility for the organization. And so
I think it is----
Senator Sessions. Well, I think that is probably--most
boards should operate that way, at least.
Ms. Froman, is it correct to say that Judge Sotomayor's
opinion in Maloney, which said the Second Amendment does not
apply to the States, if it is not overruled and if it is
followed by the United States Supreme Court, then basically the
Second Amendment rights are eviscerated, with regard to cities
and States they could eliminate firearms?
Ms. Froman. That is correct, Senator. The problem is the
Heller case did not have to deal with the incorporation issue
because it took place in Washington, D.C., which is a Federal
enclave and Federal law applies directly. But if the Second
Circuit decision or the Seventh Circuit decision remains law,
is approved by the Supreme Court, goes up the Supreme Court and
is affirmed, then, yes, cities and States can ban guns.
Senator Sessions. Does it worry you that the judge who has
already ruled on the case one way, and it was a 5:4 case
before, now could be deciding--being the deciding vote on how
that might turn out?
Ms. Froman. It is of great concern to me, Senator, and that
is why I am here today to testify. And it is of particular
concern to me today because she did not give any reason, she
did not explain what the basis was for her holding. It is kind
of like when I was in math class, it was not enough to get the
right answer. You had to show your work so that the professor
knew that you actually worked the problem and you did not
cheat.
So, you know, without any explanation of how she reached
her conclusions, we cannot tell whether that was a legitimate
application of the Constitution and the statute.
Senator Sessions. I know your organization officially--I
see today they said they wanted to see how the hearings went
and what the nominee said. After that, has the National Rifle
Association now made an announcement today, and what is it?
Ms. Froman. Well, I, of course, have been here today, and I
am not here to speak on behalf of the NRA. I am here to speak
on my own behalf and, of course, on behalf of other American
gun owners. The NRA is the oldest and largest civil rights
organization in the history of this country. They are dedicated
to preserving and protecting the Second Amendment. And I think
they have been out every day talking about the concerns that
the NRA has over Judge Sotomayor's record.
Senator Sessions. Are you aware that--I was just given a
document here that said that, ``Therefore, the National Rifle
Association opposes the confirmation of Judge Sotomayor.'' Were
you aware that that had happened?
Ms. Froman. I was told about that while I was here,
Senator, yes.
Senator Sessions. Okay.
Ms. Froman. And so I am sure that they have given a full
explanation of that position, and I am glad to see that.
Senator Sessions. Mr. Somin, thank you for your testimony.
Thank you, Mr. Kopel, for yours. And I frankly feel now
obligated to look more closely at the Didden case. You raised
more serious concerns than I realized. In fact, I guess I was
thinking this is worse than I thought after hearing your
testimony. I do think that it does impact the property rights
of great importance, and thank you for sharing that.
If you want to make a brief comment, my time is----
Mr. Somin. Yes, thank you, Senator. I agree with you it
raises very important concerns and that these sorts of takings
affect thousands of people around the country, particularly the
poor and minorities, as the NAACP pointed out in their amicus
brief in the Kelo case where they indicated that the poor and
politically vulnerable and ethnic minorities tend to be
targeted for these sorts of condemnations.
Senator Sessions. Thank you.
Senator Klobuchar. Thank you very much.
Senator Kyl.
Senator Kyl. Thank you, Madam Chairman.
First of all, let me acknowledge those on the panel who I
know, but I thank all of you for being here. Louis Freeh, it is
great to see you again. I respect your opinions greatly. I want
you to know that.
I also respected the way David Cone played baseball very,
very much. And I used to root for you, as a matter of fact. I
should not say that as an Arizona Diamondbacks fan, but I had
another team in the other league.
Senator Sessions. Senator Bunning's record, was his perfect
game the last one when you did it?
Mr. Cone. No. His was done back in the 1960's, but there
are only, I think, 17 perfect games in the history of the game.
I am lucky enough to be one of them.
Senator Kyl. And, of course, Dr. Yoest; and Sandy Froman is
a person with whom I have consulted over many, many years, long
before she was the National President of the NRA, but also on
legal matters. And I appreciate her because of her
distinguished law career, the judgment that she gives on this.
I wish I could ask all of you a question, but let me just
ask a couple here.
First of all, Sandy, the question that Senator Sessions
asked I think gets right to the heart of the matter, and I
wonder if you could just put a little bit of a legal spin to
it. The question is: What would it mean to the gun owners of
America if Judge Sotomayor's opinion were to be the controlling
law in this country from now on?
She acknowledged under my questioning that it would be more
difficult--I do not have her exact quotation here, but it would
be more difficult for gun owners to challenge the regulations
of states or cities, but it was unclear exactly how much more.
Could you describe the test that would be used in such a
situation and, in your opinion, how much more difficult it
would be for gun owners to sustain their rights as against
States and localities?
Ms. Froman. Yes, thank you, Senator Kyl. Well, I believe I
heard you questioning one of the panels earlier. You raised
that issue yourself, which is she said the rational basis test
would be sufficient to sustain any gun ban that the Government
wanted to impose, whether it was a city or a state. And the
rational basis test is the lowest threshold that the Government
has to meet to sustain a ban. They can articulate any reason,
pretty much, and it will be sufficient to get past that review.
Now, the Supreme Court in Heller made it clear that the
rational basis test is not allowed when you are interpreting an
enumerated right like the Second Amendment. But she ignored
that in the Maloney case and talked about rational basis
anyway. So that is of great concern to me and I think to the
almost 90 million American gun owners that, yes, it is fine to
say in Heller that we have a right that is protected against
infringement by the Federal Government. But that doesn't mean--
the Heller case doesn't mean that cities and states cannot ban
guns, cannot issue whatever regulations they want, as long as
they can articulate what will meet this rational basis test. It
is a very, very low threshold.
And as a matter of fact, that is why the District of
Columbia had their gun ban. That is why the city of Chicago
basically has a gun ban that prevents people from having
firearms even in their home for self-defense.
So that is what we are concerned about as gun owners in
America.
Senator Kyl. Thank you very much.
Dr. Yoest, in the questions by Senator Coburn of the
nominee, he asked about advances in technology, and as I recall
Judge Sotomayor's testimony, she did not want to acknowledge
the impact of advances in technology as it relates to the
Supreme Court's evaluation of restrictions on abortion.
Do you believe that advances in technology are important to
the viability trimester framework that the Court articulated in
Roe, and why?
Ms. Yoest. Well, I would reference back to the confirmation
hearings of the Chief Justice in which he went through one of
the elements that we look at when we reconsider factual--how
things relate to a case, and there has definitely been
tremendous advances on the scientific realm as it relates to
human life.
So I think it is important to see her, whether or not she
is willing to consider that kind of thing, and it also goes
to--Americans United for Life works very focused on pro-life
legislation at the State level, and part of the challenge that
we face is this question of how much the American people are
going to be allowed to interact with their duly elected
representatives at the State level in restricting abortion in a
common-sense way that they would like to see.
Senator Kyl. Thank you. Just to be clear, I have recalled
her testimony slightly incorrectly. She actually did not say or
would not say how she viewed it. She said it would depend upon
the case that came before her. So I do not want to
mischaracterize her testimony, but your point is that it would
be very important for a court in evaluating a restriction
imposed by a State.
Ms. Yoest. Yes, sir.
Senator Kyl. Okay. Thank you. Again, I wish I had more time
to--but we have, I think, one or two panels left here, so we
should probably move on.
Senator Klobuchar. Senator, we have two panels left.
Senator Kyl. Yes, but we thank you very much. This is an
important event in our country's history. You have contributed
to it, and we thank you, all of you, for it.
Senator Sessions. Thank you, Mr. Canterbury. I appreciate
the FOP's----
Senator Klobuchar. Yes, I want to thank all of you, and you
just did a marvelous job in stating your opinions. I think it
was helpful for everyone, and thank you very much. Have a very
good afternoon. It was one of our shortest panels. You are
lucky. You can go home and have dinner.
We are going to take a 5-minute break, and then we will
have the next panel join us. Thank you very much.
[Whereupon, at 5:36 p.m., the Committee was recessed.]
After Recess [5:46 p.m.]
Senator Klobuchar [presiding].--We are going to get started
with our next panel, if you could stand to be sworn in and
raise your right hands. Do you affirm that the testimony you
are about to give the Committee will be the truth, the whole
truth and nothing but the truth, so help you God?
[Witnesses sworn.]
Senator Klobuchar. Thank you. We are joined here by Senator
Sessions. I know Senator Kyl may be joining us and has been
with us today, and whoever else stops by. But we want to thank
you for coming. We have had a good afternoon.
What I am going to do is introduce each of you individually
and then you will give your 5 minutes of testimony. I know one
of our witnesses is a little late. So we are going to start
here with you, Ms. Romero.
Ramona Romero is the current national president of the
Hispanic National Bar Association and the corporate counsel for
logistics and energy at DuPont. She is also a cofounder and
former board member of the Dominican-American National
Roundtable. She is a graduate of Harvard Law School.
Ms. Romero, we are honored to have you here. Thank you. We
look forward to your testimony. You can give your testimony,
because our other witness got a little delayed coming over from
the House. So thank you.
STATEMENT OF RAMONA ROMERO, NATIONAL PRESIDENT, HISPANIC BAR
ASSOCIATION
Ms. Romero. Good afternoon. As Madam Chair said, my name is
Ramona Romero and I am the national president of the Hispanic
National Bar Association, which is known as the HNBA. We are
grateful to Chairman Leahy, to you, Ranking Member Sessions,
and to all of the members of the Committee for affording the
HNBA the opportunity and honor of testifying at this hearing.
This is the fifth time that we have appeared before this
Committee in support of the confirmation of a Supreme Court
justice. We take great pleasure in endorsing Judge Sotomayor.
Her support is based, first and foremost, on the merits of her
stellar credentials.
The HNBA was founded in 1972. One of its primary goals is
to promote equal justice for all Americans by advancing the
participation of Hispanics in the legal profession. It is a
nonprofit, voluntary bar association. We have 37 affiliates in
22 states. The HNBA is nonpartisan and it does not represent a
particular ideology.
Today, I am accompanied by nine former HNBA national
presidents and vice president-elect. Like many Americans, we
were proud when President Obama announced the nomination of
Judge Sotomayor. As many members of this Committee know, for
decades, the HNBA has worked to promote a fair, independent
and, yes, diverse judiciary, one that reflects the rich mosaic
of the American people.
There are over 45 million Hispanics in the United States.
We represent over 15 percent of the population. We are the
largest, fastest growing and youngest segment of the
population. Yet, Hispanics are under-represented among lawyers
and judges.
The appointment of the first Hispanic to the Supreme Court
is an important--an important symbolic milestone for our
country, just like Justice Marshall was with respect to
African-Americans and Justice O'Connor was with respect to
women.
The HNBA often reviews the qualifications of judicial
candidates, regardless of background of politics. We consider a
number of factors: exceptional professional competence,
intellect, character, integrity, temperament, commitment to
equal justice, and service to the American people and, also, to
Hispanics, the community we serve.
Judge Sotomayor more, more than satisfies all of these
criteria. Before her nomination, we were already familiar with
Judge Sotomayor's impressive background. We had endorsed her
for both of her prior judicial appointments.
In 2005, the HNBA also named the judge on a bipartisan
shortlist of eight potential Supreme Court nominees, prepared
by a Supreme Court committee, after substantial due diligence.
The HNBA's Supreme Court committee, again, performed due
diligence on her record after this nomination.
As a result, we are confident that Judge Sotomayor is
extraordinarily well qualified to serve as a justice for the
Supreme Court. Some have suggested that, if confirmed, the
judge will render decisions based on her personal bias. They
could not be more wrong.
Her extensive judicial record shows that her background and
her experiences do not detract from her ability to adhere to
the rule of law. On the contrary, they are a positive.
Her story resonates with all Americans. She is proof that
in our country, in our country, there is no limit, even for
those of us from the most humble of backgrounds. Her
confirmation will mark another key step in our journey as one
nation, indivisible.
We are grateful to President Obama for making a wise
decision in nominating Judge Sotomayor. Our thanks to all
Americans for their interest in one of our country's shining
stars.
The HNBA thanks this Committee and urges the Senate to
confirm Judge Sotomayor. Thank you for listening.
[The prepared testimony of Ms. Romero appear as a
submission for the record.]
Senator Klobuchar. Thank you very much, Ms. Romero. Also,
welcome to all of the many past presidents that are there, that
is quite a number, as well as vice presidents.
We have now been joined by the honorable Nydia Velazquez,
who is the Congresswoman here. I know she is incredibly busy
and has joined us, and Senator Sessions and I have both agreed
that you would not have to stay for questions.
She is currently serving her ninth term as representative
for New York's 12 Congressional District. She was the first
Puerto Rican woman elected to the U.S. House of Representatives
and currently serves as the Chairwoman of the Congressional
Hispanic Caucus, Chair of the House Small Business Committee,
and a senior member of the Financial Services Committee.
Because you missed the swearing in, we will do that now.
This is the Senate Judiciary Committee, so welcome. Could you
raise your right hand? Do you affirm that the testimony that
you are about to give before the Committee is the truth, the
whole truth and nothing but the truth, so help you God?
Representative Velazquez. I do.
Senator Klobuchar. Thank you. You have 5 minutes,
Congresswoman, and we are honored to have you here. Thank you.
STATEMENT OF THE HONORABLE LYDIA VELAZQUEZ, CHAIR,
CONGRESSIONAL HISPANIC CAUCUS
Representative Velazquez. Thank you. Madam Chairman,
Ranking Member, and the members of the Committee, I have known
Sonia Sotomayor for over 20 years.
In fact, when I was first elected to Congress in 1993, I
asked her to administer my oath of office. I can tell you
personally that she is a grounded and professional individual.
And over the last 3.5 days, all of us have been able to see her
considerable legal ability impressively displayed.
Hispanics everywhere are proud that such a distinguished
legal talent hails from our community. We have all been
energized by her nomination. But, of course, that is not the
reason why she should be confirmed. The case for Judge
Sotomayor's confirmation is built on her vast experience, keen
intellect, and tremendous qualifications.
It is not that Judge Sotomayor does not have a compelling
life history. She does. As so many have already pointed out,
hers is a uniquely American story, one that begins in the Bronx
projects and ultimately reaches the highest echelons of our
legal system.
This background instilled within her the belief that hard
work is rewarded and the knowledge that with the right
combination of talent and effort, anything is possible in
America.
These core values propelled Sonia Sotomayor to remarkable
heights. As her career progressed, she managed to reach nearly
every level of the legal system. With each new step, she
excelled not only as a prosecutor and a litigator, but also as
an appellate judge.
Yet, throughout that process of achievement, she never once
lost touch with her roots or her Bronx neighborhood. Instead,
she augmented her vast legal experience with common sense
understanding of working class America. That appreciation will
add a valuable perspective to the Supreme Court.
Make no mistake. The stakes are high for Hispanic-
Americans. The Supreme Court will rule on many matters that are
critical to our community, from housing policy to voting
rights. These are delicate issues.
With many of these matters, passion runs deep on both
sides. Resolving them fairly will require objectivity,
impartiality, and an unwavering commitment to the rule of law.
Judge Sotomayor's record demonstrates these qualities. She
has a reputation as a non-ideological jurist, someone who
chooses not to spar with those who think differently, but to
instead find common ground. When working with Republican
appointees, colleagues, Sotomayor's record will show that 95
percent of the time, she managed to forge consensus.
She was able to do this because she commands a
sophisticated grasp of legal argument and has a keen awareness
of the law's effect on every American.
When the Congressional Hispanic Caucus reviewed a broad
range of qualified Supreme Court candidates, these were the
traits we were looking for. We were looking for individuals who
upheld constitutional values, exhibited a record of integrity,
and had a profound, profound respect for our Constitution.
It is our overwhelming belief that Judge Sotomayor meets
these criteria. That is why we enthusiastically and unanimously
endorse her nomination.
Senators, the decision before the Committee today is one of
your greatest responsibilities. I know this is something none
of you on either side of the aisle take lightly. But I believe
Judge Sotomayor's record of judicial integrity, impartiality
and, as she puts it, fidelity to the law, is one we can all
admire regardless of party or ideology.
If confirmed, Judge Sotomayor's service on the court will
bring great pride to the Hispanic community. That goes without
saying. But more importantly, it will add another objective
disciplined legal talent to that august body.
Thank you again for the opportunity to testify. I look
forward to answering any questions. You can send it to my
office, but we are going right now, and I really, really
appreciate the opportunity that you have given me on behalf of
the Congressional Hispanic Caucus.
[The prepared testimony of Representative Velazquez appear
as a submission for the record.]
Senator Sessions. Thank you so much, Congresswoman
Velazquez. That was an eloquent and personal statement. It
means a lot to us, and you have contributed much to the
hearing.
Representative Velazquez. Thank you. I know her well. I
know her heart, her soul, her intellect, but, most importantly,
her temperament and integrity. Thank you.
Senator Sessions. Thank you.
Senator Klobuchar. Thank you so much, Congresswoman
Velazquez. We know you have to vote and there are many things
going on over in the House. So we appreciate and understand
that. Thank you very much.
Next, we have Theodore M. Shaw. Mr. Shaw is a professor at
Columbia Law School and former director-counsel and president
of the NAACP Legal Defense Fund. He began his legal career in
the Civil Rights Division of the United States Department of
Justice. He is a graduate of Wesleyan University and the
Columbia University School of Law.
Thank you very much, Mr. Shaw. We look forward to your
testimony.
STATEMENT OF THEODORE M. SHAW, PROFESSOR, COLUMBIA LAW SCHOOL
Mr. Shaw. Thank you, Madam Chair. Thank you, Senator
Sessions, and, in his absence, of course, Chairman Leahy.
I have known Sonia Sotomayor for over 4 years. We first met
in 1968 as freshmen at Cardinal Spellman High School in the
Bronx. We were among a modest number of black and Latino
students, perhaps 10 percent of that school's population, in
what was one of the most academically challenging high schools
in New York City.
It was a time of great change, great challenge. 1968 was
the year that Dr. King was assassinated; also, Robert Kennedy;
the year of the Chicago Democratic National Convention; and,
there was much unrest.
Many of the minority students at Spellman, including Sonia
and I, came from the public housing projects of Harlem or the
Bronx or the tenement houses that surrounded them. We were
shaped by these extraordinary times and by the communities from
which we came, for better or worse.
During that time, the light of opportunity began to shine
into corners of society that were long neglected for reasons of
race and poverty. Many of us are beneficiaries of what has come
to be known as affirmative action; that is, the conscious
effort to open opportunities to individuals and groups that had
been historically discriminated against and excluded from
mainstream America.
Some people will immediately seize upon that description to
talk about ``unqualified'' individuals. Affirmative action,
properly structured and implemented, lifts qualified
individuals from obscurity rooted in unearned inequality.
In spite of her brilliance, there was a time when someone
like Judge Sotomayor would have been routinely left out of the
mainstream of opportunities we have come to associate with
somebody of her capabilities and accomplishments.
Sonia was at the top of our class at Cardinal Spellman High
School. Everyone, white, black, Latino, Asian, ranked behind
her. She was studious, independent-minded, mature beyond her
years, thoughtful. She wasn't easily influenced by what was
going on around her. She walked her own path.
To be sure, Sonia was comfortable in her own skin and proud
of her community and her heritage. She did not run from who or
what she was and is. Still, Sonia was not one to be easily
swayed by peer pressure, fads, or the politics of others around
her.
She approached any issue from the standpoint of fierce
intellectual curiosity and integrity. In fact, she was an
intellectual powerhouse. Sonia was a leader among students at
Cardinal Spellman High School. She set the pace at which others
wanted to run.
Sonia did not live a life of privilege. She lost her father
at a very young age. She had been diagnosed with diabetes even
before she came to high school. It was not something I remember
her talking about. She simply carried herself with an air of
dignity, seriousness of purpose, and a sense that she was going
somewhere.
In my 4 years of high school, I never saw Sonia interact
with anyone in a disrespectful or contentious or antagonistic
manner. Her temperament was even then judicious.
In short, although I never told her then and although she
did not know it, I envied her intellectual capacity, her
discipline, her unquestionable integrity. I admired her.
After graduating from Cardinal Spellman at the top of our
class and as valedictorian, she was off to Princeton and,
somewhat further down in the rankings, I was off to Wesleyan. I
did not stay in touch with her over many of the ensuing years,
but we did meet up again some years later.
I followed her as one does a star from one's high school
orbit. Eventually, of course, she went on to Yale Law School
after Princeton. She excelled in everything she did.
Her qualifications for the Supreme Court would ordinarily
be a no-brainer but for the politics of judicial nomination. I
have faith that the Senate and this Committee will not let
those politics get in the way.
My career has been as a civil rights lawyer. I have been in
the midst of ideological warfare on contentious issues. I have
been unabashed about my point of view. I am conscious of the
fact that as I testify about Sonia, there may be some who
project my thoughts and beliefs on to her.
Some have already tried to label her as an activist outside
of the political mainstream. To be sure, I consider those who
work for racial justice and other civil rights to be a vital
part of mainstream America. But Sonia's life has not been lived
on the battlefield of ideology or partisanship, where many of
us who are labeled or who label ourselves as liberal or
conservative have locked horns.
Indeed, her record defies simplistic label. She began her
legal career as a prosecutor, not ordinarily a job thought of
as a bastion of liberal activism. Her service on the board of
the Puerto Rican Legal Defense Fund both speaks to the strength
of that organization and the range of her interests from
prosecution to civil rights.
Her service was commendable. In fact, this range of
experience and commitment places Judge Sotomayor in the
mainstream of middle America, where surely Americans are both
interested in the prosecution and punishment of those who
engage in criminal activities, as well as the protection of
civil rights and elimination of invidious discrimination.
I have much more to say, but it is in my written testimony
and I see my time is expiring. I would like to refer you to my
comments on this whole notion of experience and what that
brings to the bench.
But to conclude, I want to say that she has served our
nation for 17 years as a Federal district court judge and then
as an appellate judge with great distinction. Now, she is being
considered for an appointment as associate justice to the
United States Supreme Court.
Candor compels me to admit that I swell with pride when I
contemplate the possibility that my high school classmate may
ascend to the highest court in the land.
But quite aside from this petty and undeserved pride on the
part of one who was merely a high school classmate, there are
millions of Americans who see for the first time the
possibility that someone who looks like them or who comes from
a background like theirs may serve on the United States Supreme
Court, someone who is supremely qualified, by any measure.
It is a great honor for Judge Sotomayor that President
Obama has nominated her to the United States Supreme Court. It
will be even a greater honor for our nation if she were to be
confirmed and were to serve. Thank you.
[The prepared testimony of Mr. Shaw appear as a submission
for the record.]
Senator Klobuchar. Thank you very much. Appreciate it, Mr.
Shaw. Our next witness is Tim Jeffries. Tim Jeffries is the
founder of P7 Enterprises, a management consulting practice
located in Scottsdale, Arizona. Mr. Jeffries serves on the
board of directors of several corporations and nonprofit
organizations, including the National Organization for Victims
Assistance and the Arizona Voice for Crime Victims.
I don't know if you want to add anything, Senator Kyl.
Senator Kyl. Well, Madam Chairman, thank you for that
opportunity. I think you will see, when he testifies, the basis
for his knowledge and passion about the protection of victims'
rights and I think that will speak for itself and I am anxious
to follow-up with the questions, as well. But I thank you very
much.
Senator Klobuchar. Thank you very much. Welcome to the
Committee, Mr. Jeffries. We look forward to your testimony.
STATEMENT OF TIM JEFFRIES, FOUNDER, P7 ENTERPRISES
Mr. Jeffries. Thank you, Madam Chairman, Senator Sessions,
Senator Kyl. I appreciate the humbling invitation to provide my
personal testimony in opposition to the honorable Judge
Sotomayor's appointment to the U.S. Supreme Court. The views
that I express here today are my own and not the views of any
organization I may reference.
As my bio shows, I come from a blue collar family. My
father's grandfather served in the Union Army during the Civil
War and rode for the Pony Express. My mother's grandparents
emigrated from Portugal to America in the 1900s with no money
in their pocket and no English in their vocabularies.
Similar to thousands of other simple, hardworking
Americans, my involvement in the crime victims support movement
was borne from unimaginable tragedy. On November 3, 1981, my
beloved older brother, Michael, was kidnaped, beaten, tortured
and murdered by a transient gang of street criminals in
Colorado Springs, Colorado.
The two murderers stabbed my dear, defenseless brother 65
times and ultimately killed Michael by slashing his throat and
crushing his skull with the heel of a remorseless, blood-soaked
boot.
Based on Federal crime statistics, 17,000 people are
murdered in our country every year. On average, someone is
murdered every 31 minutes. On average, every 10 weeks, more
people are murdered in our country than passed on that brutal,
horrible day of September 11.
In fact, since September 11, 115,000 people have been
murdered in America. This gut-wrenching level of violence in
our country exceeds the approximate population of Santa Clara,
California or Gresham, Oregon or Peoria, Illinois or Allentown,
Pennsylvania.
Further compounding this epic national crisis, other
violent crimes in our country are committed at an appalling
rate. Based on the crime clock produced by the Office for
Victims of Crime in the Department of Justice, someone is raped
in our county every 1.9 minutes. Someone is assaulted in our
country every 36.9 seconds. An instance of child abuse or
neglect is reported every 34.9 seconds.
Making matters worse, this breathtaking spectrum of heinous
violence in our country does not receive the consistent
political action it warrants and the constant media focus it
deserves.
Prior to my testimony, my wife sent me a text and she
asked, ``Where are all the Senators? '' And perhaps that is a
metaphor for what vexes and undermines the crime victims
support movement.
The true horror in verifiable existence of evil in our
country are often minimized, if not trivialized, with well
intentioned, yet sadly misguided equivocations about the
troubled lives of guilty criminals and their various personal
circumstances.
Unfortunately, based on public statements, Judge Sotomayor
has repeatedly offered misplaced sympathy for criminals,
despite the fact that justice exists to protect the innocent
and to punish the guilty. Forgiveness and mercy are one thing.
Punishment and accountability are another.
In four situations, four different events that are noted in
my testimony, Judge Sotomayor sympathy and perhaps empathy for
criminals that may be well intentioned, but I feel is
tragically misplaced.
At a Columbia Law School public service dinner, she stated,
``It is all too easy as a prosecutor to feel the pain and
suffering of victims and to forget that defendants, despite
whatever illegal act they have committed, however despicable
their acts may have been, the defendants are human being.''
In January 1995, in receiving the Hogan-Morganthau Award,
Judge Sotomayor stated, ``The end result of a legal process is
to find a winner. However, for every winner, there is a loser,
and the loser is himself or herself a victim,'' forgetting for
the fact that when meeting justice, it's not to find a winner,
it's to find justice.
On July 12, 1993, in a Federal sentencing hearing that she
presided over, over a cocaine dealer, Judge Sotomayor
apologized to the cocaine dealer for having to send him to
Federal prison.
She stated the mandatory 5-year sentence was a ``great
tragedy for our country.'' She also stated she hoped the
cocaine dealer ``will appreciate that we all understand that
you were a victim of the economic necessities of our society.''
Then she added, ``But unfortunately, there are laws I must
impose.''
Having viewed the autopsy photos of my massacred brother
and heard the heartbreaking stories of thousands of victims and
survivors of violent crimes in America, I believe Judge
Sotomayor's sympathy for criminals at the expense of the
burdens carried by crime victims is unworthy of our nation's
highest court, where public safety and protection of the
innocent should be paramount.
Whereas Judge Sotomayor's biography is admirable and
compelling, it is a great American story of which, as an
American, I am proud. I am deeply troubled that she has
regularly offered well intentioned, yet misguided sympathy to
criminals without notable deference to the pain and suffering
of the victim.
These are the very people who need government's protection.
Statistics show that the most egregious crime in our country
disproportionately impacts the poor, the disadvantaged, the
downtrodden, the defenseless. These are the very people that
the justices in our highest court must have sympathy for, must
have empathy for.
Madam Chairman, I appreciate your patience with my
testimony that has extended beyond its time.
Senator Klobuchar. That is fine, Mr. Jeffries.
Mr. Jeffries. And I would be happy to answer any questions
at the appropriate time.
[The prepared testimony of Mr. Jeffries appear as a
submission for the record.]
Senator Klobuchar. That is fine, and thank you for sharing
that tragic story. It must have been very difficult.
Neomi Rao is our next witness. Neomi Rao is a professor of
law at George Mason University. Previously, she served as
associate counsel and special assistant to President George W.
Bush and served as a counsel to the Senate Judiciary Committee.
She is a graduate of the University of Chicago Law School, that
is something we have in common.
Professor Rao clerked for Supreme Court Justice Clarence
Thomas and Fourth Circuit Judge J. Harvey Wilkinson. I look
forward to your testimony. Thank you for being here.
STATEMENT OF NEOMI RAO, PROFESSOR, GEORGE MASON UNIVERSITY LAW
SCHOOL
Ms. Rao. Thank you very much, Madam Chairman, Senator
Sessions and other distinguished members of this Committee. It
is an honor to testify at these historic hearings, which have
provided the opportunity to have a respectful public dialog
about the important work of the Supreme Court and the judicial
philosophy of an accomplished nominee.
I have submitted more detailed written testimony and I
should state at the outset that I take no position on the
ultimate question of the confirmation of Judge Sotomayor.
In my opening remarks, I would like to highlight some
points about the judicial role. During these hearings, Judge
Sotomayor has expressed broad principles about fidelity to the
law with which we can all agree. But fidelity to the law can
mean very different things to different judges.
Although in her testimony she has distanced herself from
some of her earlier remarks, her speeches and writings might
still be helpful in understanding her view of the judicial
process.
First, Judge Sotomayor has explicitly rejected the idea
that there can be an objective stance in judging. She has
explained that every case has a series of perspectives and thus
requires an individual choice by the judge.
This goes beyond recognizing the need to exercise judgment
in hard cases or the idea that reasonable judges may at times
disagree. If there is no objective view, one can question
whether there is any law at all apart from the judge's personal
choices.
Second, there is the related issue of the role of personal
experiences in judicial decision-making. It would be hard to
deny that judges are human and made up of their unique life
journeys. Many judges recognize this and explain how they
strive to remain impartial by putting aside their personal
preferences.
Judge Sotomayor's position, however, has suggested that her
personal background, her race, gender and life experiences,
should affect judicial decisions.
Throughout her testimony, Judge Sotomayor has reaffirmed
that she decides cases by applying the law to facts and that
she does not follow what is in her heart. Of course, all
nominees to the Supreme Court honestly state their fidelity to
the law.
Nonetheless, this leaves open the question of how a judge
chooses to be faithful to the law. Judges go about this task in
different ways. Following the law could mean, as formalists
believe, that the judicial role and the privilege of political
independence require judges to stick closely to the actual
words of statutes and the Constitution. The basic idea is that
by focusing on the written law, judges act as fair and
impartial arbiters.
Other judges consider that they are following the law when
they interpret it to conform to what is rational or coherent or
just. They believe that following the law means trying to bring
about what they consider to be the best outcome, all things
considered. These judges may be ruled by pragmatism or personal
values, such as empathy.
Even with a sincere purpose of following the law, judges
use very different methods for finding what the law requires.
For example, some judges are far more likely to determine that
the law is ambiguous and, therefore, requires the judge to fill
in the gaps.
If the judge finds the law indeterminate, he or she may
look to outside sources, such as international law, or to
personal values about what is fair or rational. Pragmatic,
flexible interpretation of the law allows significant room for
individual assessments of what the law requires, as each judge
will have his or her own conceptions about what is best.
If the law is really a series of perspectives, this
suggests a very thin conception of law. Fidelity to law as a
series of perspectives is something very different from
fidelity to law as binding written commands of the legislature
and Constitution. If law is simply one's own perspective, then
fidelity to law is little more than fidelity to one's own
views.
The Supreme Court gets a final word with regard to
constitutional interpretation. A nominee's judicial philosophy
is important, because on the Supreme Court, the only real
restraint is self-restraint.
Our constitutional structure does not give judges political
power. It gives them the judicial power to decide particular
cases through an evenhanded application of the law; to fairly
interpret statutes and the Constitution for all that they
contain, not more, not less.
In our courts, the rule of law should prevail over the rule
of what the judge thinks is best. Thank you for giving me the
chance to testify today.
[The prepared testimony of Ms. Rao appear as a submission
for the record.]
Senator Klobuchar. Thank you very much, Ms. Rao, for your
testimony. Next, we have John McGinnis. John McGinnis is a
professor of law at Northwestern University. Previously, he was
a deputy assistant attorney general in the Department of
Justice's Office of Legal Policy; a graduate of Harvard Law
School, where he was the editor of the Harvard Law Review,
something he has in common with President Obama. That is not
true?
Mr. McGinnis. He was president of the Harvard Law Review.
Senator Klobuchar. You were editor. Well, we could just
pretend for today. Professor McGinnis also clerked on the U.S.
Court of Appeals for the District of Columbia.
Thank you for being here, Professor McGinnis. We look
forward to your testimony.
STATEMENT OF JOHN MCGINNIS, PROFESSOR, NORTHWESTERN UNIVERSITY
SCHOOL OF LAW
Mr. McGinnis. Thank you so much, Chairman Klobuchar,
Ranking Member Sessions, for the opportunity to address you. At
the outset, I want to make clear that, like my colleague, I am
not taking any position on Judge Sotomayor's nomination,
although I will say she has my respect and good wishes.
What this hearing affords is one of the rare opportunities
for a constitutional conversation with the American people and
where the correct constitutional principles can be identified.
Ultimately, the Constitution rests on the people's
confidence in the Constitution and their fidelity to the
principles. Only once the correct constitutional principles are
identified can the Nation measure a nominee's adherence to
those principles and so determine whether he or she should be
confirmed.
My subject, the use of international and foreign law, is an
issue of substantial importance, not least because the Supreme
Court has come to rely on such material. For instance, in
Lawrence v. Texas, the Supreme Court recently relied on the
European Court of Human Rights as part of its decision to
strike down a statute of one of our states.
In my view, such reliance distorts the meaning of our
Constitution. It undermines domestic democracy and it threatens
to alienate Americans from a document that is their common
bond.
So what are the correct principles? I think they can be
simply stated. They are that judges should avoid giving any
weight to contemporary foreign or international law unless the
language of the Constitution calls for it, and the language of
the Constitution generally does not.
If the Constitution, as I believe, should be interpreted
according to the meaning it had at the time it was ratified, it
follows directly that the use of contemporary foreign or
international law is not proper.
The problem with this use, in fact, is that it's
contemporary, not simply the fact that it's foreign or
international, because the meaning of the Constitution was
fixed at the time it was ratified.
But even if one is a self-styled pragmatist about
constitutional theory, the use of contemporary foreign or
international law in constitutional jurisprudence is still
objectionable.
Pragmatists believe the Constitution should only invalidate
our laws if they have bad consequences. But a conflict between
our law and foreign law is not appropriately used to create any
doubt about the beneficence of our own law.
Foreign law is formulated to be good for that foreign
nation, not for ours. Indeed, a proposition of foreign law is
really only the tip of an iceberg of some complex set of social
norms in other nations.
But since the United Nations doesn't share all those norms,
importing that single legal proposition into our nation can
have very bad consequences for us. International law differs
from foreign law, because international at least purports to
have some kind of universality, which foreign law does not.
But raw international law also lacks any democratic
pedigree and can cast doubt on our democratically made law.
Indeed, international law has multiple democratic defects.
Totalitarian nations have participated in its fabrication. Very
unrepresentative groups, like law professors, still shape its
form.
It's also hardly transparent. American citizens have enough
trouble trying to figure out what goes on in hearings like this
one, let alone in diplomatic meetings in Geneva.
As I read Judge Sotomayor's speech on this issue, her
position depends on propositions that seem, to me, in some
tension. Judge Sotomayor stated that justices should not use
foreign or international law, but they should consider the
ideas they find in such materials in their decision-making.
I understand, at this hearing, Judge Sotomayor disavowed
the use of such materials to have any influence on
jurisprudence, and I welcome that disavowal. What she left
unexplained, to my satisfaction at least, however, is her view
in the speech that such materials can help us decide our
issues; her praise for the use of such law in Lawrence v.
Texas, which expressly relied on that European human rights
decision; and, perhaps most puzzling of all, her endorsement
and her praise for Justice Ginsberg's view when it's well known
that Justice Ginsberg, in contrast with, say, Justice Scalia,
believes that such materials are relevant to decision-making.
Indeed, Justice Ginsberg says that they're nothing less
than the basic denominators of fairness between the Governors
and the governed.
Foreign and international law may well contain good ideas,
as Justice Sotomayor suggested, but so many other sources that
have no weight and should not, I think, routinely be cited as
authority.
To put the question in perspective, undoubtedly, the Bible
and the Quran have many legal ideas that many people think are
good, but we would be rightly concerned if judges used them as
guidance for interpreting the Constitution or even routinely
cited them.
Depending on what text the judge cited and what she
omitted, we might think she was biased in favor of one
tradition at the expense of others.
In my view, the rule of law itself ultimately is founded on
the proposition that only material that is formally relevant
should have weight in a judge's decision, and the way a judge
can demonstrate adherence to the rule of law in this context is
extremely simple--simply refrain from appealing to the
authority of foreign of international law in her opinion.
Thank you very much.
[The prepared testimony of Mr. McGinnis appear as a
submission for the record.]
Senator Klobuchar. Thank you very much, Professor McGinnis.
Last, but not least, we have Professor Rosenkranz. Nicholas
Quinn Rosenkranz is an associate professor at Georgetown
University Law Center. After graduating from Yale Law School,
he clerked for Judge Frank Easterbrook on the U.S. court of
appeals for the seventh circuit and for Justice Anthony Kennedy
on the U.S. Supreme Court. He then served as an attorney
advisor at the Office of Legal Counsel in the United States
Department of Justice.
You should know, Mr. Rosenkranz, that Judge Easterbrook was
my professor at law school and I know that must have been kind
of a tough clerkship. I am sure you had to work very hard. So
we look forward to hearing your testimony. Thank you.
STATEMENT OF NICHOLAS QUINN ROSENKRANZ, PROFESSOR, GEORGETOWN
UNIVERSITY LAW CENTER
Mr. Rosenkranz. Madam Chair, thank you. Ranking Member
Sessions, members of the Committee, I thank you all for the
opportunity to testify at this momentous hearing.
I, too, have been asked to comment on the use of
contemporary foreign legal materials in the interpretation of
the U.S. Constitution. I agree entirely with Professor
McGinnis's analysis.
In my remarks, I'll try to explain why this sort of
reliance on foreign law is in tention with fundamental notions
of democratic self-governance. I should emphasize that I, too,
take no position on the ultimate question of whether Judge
Sotomayor should be confirmed, and I offer my comments with the
greatest respect. But I am concerned that her recent speech on
this issue may betray a misconception about how to interpret
the United States Constitution.
In this room, and at the Supreme Court, and in law schools,
and throughout the nation, we speak of our Constitution in
almost metaphysical terms. In the United States, we revere our
Constitution. And well we should; it is the single greatest
charter of government in history. But it is worth remembering
exactly what it is that we revere. The Constitution is a text.
It is comprised of words on parchment. A copy fits comfortably
in an inside pocket, but copies don't quite do it justice. The
original is just down the street at the National Archives, and
it is something to see. It is sealed in a titanium case filled
with argon gas, and at night it is kept in an underground
vault. But during the day, anyone can go and see it and read
it, and everyone should. The parchment is in remarkably good
condition. And the words are still clearly visible.
The most important job of a Supreme Court justice is to
discern what the words on that piece of parchment mean. The job
is not to instill the text with meaning. The job is not to
declare what the text should mean. It is to discern, using
standard tools of legal interpretation, the meaning of the
words on that piece of parchment.
Now, sometimes the meaning of the text is not obvious. One
might need to turn to other sources to help understand the
meaning of the words. One might, for example, turn to the
Federalist Papers or to early Supreme Court cases to see what
other wise lawyers thought that those words meant.
But what the Supreme Court has done in two recent and
controversial cases is to rely on contemporary foreign law in
determining the meaning of the United States Constitution. And
this is the practice that Judge Sotomayor seemed to endorse in
her recent speech. But when one is trying to figure out the
meaning of the document down the street at the Archives, it is
mysterious why one would need to study other legal documents,
written in other languages, for other purposes, in other
political circumstances, hundreds of years later and thousands
of miles away. To put the point most simply, as a general
matter, it is unfathomable how the law of, say, France, in
2009, could help one discern the original public meaning of the
United States Constitution.
Those who would rely on such sources must be engaged in a
different project. They must be trying to update the
Constitution to bring it in line with world opinion. To put the
point most starkly, this sort of reliance on contemporary
foreign law must be, in essence, a mechanism of constitutional
change.
Foreign law changes all the time, and it has changed
continuously since the Founding. If modern foreign law is
relevant to constitutional interpretation, it follows that a
change in foreign law can alter the meaning of the United
States Constitution.
And that is why this issue is so important. The notion of
the court ``updating'' the Constitution to reflect its own
evolving view of good government is troubling enough. But the
notion that this evolution may be brought about by changes in
foreign law violates basic premises of democratic self-
governance. When the Supreme Court declares that the
Constitution evolves--and it declares further that foreign law
may affect its evolution--it is declaring nothing less than the
power of foreign governments to change the meaning of the
United States Constitution.
And even if the court purports to seek a foreign
``consensus,'' a single foreign country might tip the scales.
Indeed, foreign governments might even attempt this
deliberately. France, for example, has declared that one of its
priorities is the abolition of capital punishment in the United
States. Yet surely the American people would rebel at the
thought of the French Parliament deciding whether to abolish
the death penalty--not just in France, but also thereby, in
America.
After all, foreign control over American law was a primary
grievance of the Declaration of Independence. It, too, may be
found at the National Archives, and its most resonant protest
was that King George III had ``subject[ed] us to a jurisdiction
foreign to our constitution.''
This is exactly what is at stake here--foreign government
control over the meaning of our Constitution. Any such control,
even at the margin, is inconsistent with our basic founding
principles of democracy and self-governance.
I hope that the Committee will continue to explore Judge
Sotomayor's views on this important issue. Thank you.
[The prepared testimony of Mr. Rosenkranz appear as a
submission for the record.]
Senator Klobuchar. Thank you very much, to all of you. Just
to clarify, Mr. Rosenkranz, the one case that Judge Sotomayor
considered on the death penalty, she actually sustained it. She
rejected a claim that it did not apply and I do not think she
used foreign law at all to say that it did not apply. She
actually sustained the death penalty. Are you aware of that
case, the Heatley case?
Mr. Rosenkranz. Yes, I am aware of it. I am referring
primarily to the speech that she gave on this topic.
Senator Klobuchar. Okay. Well, I would say that her opinion
probably rules, if you look at how she actually ruled on this.
She did not say that you could not have the death penalty
because of French law. Thank you.
Ms. Romero, I had some questions about your testimony. You
talked about the fact that Ms. Sotomayor's opinions are
characterized by a diligent application of the law, reasoned
judgment, and an unwavering commitment to upholding the
Constitution and Supreme Court precedent.
Do you want to talk to me about how you reached that
conclusion?
Ms. Romero. We have a Supreme Court committee, as I
mentioned, and the committee conducted a thorough review of her
background. In addition to reviewing about 100 of her cases, we
commissioned a review by a group of law professors who reviewed
about 100 of her cases.
We reviewed many of her speeches and articles and, also,
spoke to dozens of colleagues and people who know her. So we
conducted a fairly extensive due diligence. So our conclusion
is based primarily on our review of her cases, which I think is
what really should prevail here.
Senator Klobuchar. You also noted in your remarks that the
judge's opinions can't be readily associated with a particular
political persuasion or judicial philosophy, and I think that
may be reflected in the fact that she has been endorsed--in our
last panel, Louis Freeh, who had been appointed by George H.W.
Bush and, also, served as the FBI director.
We had the Fraternal Order of Police, the largest police
organization in the country. We have had the National District
Attorneys Association that supports her and, in fact, a review
of her sentences shows that she is right in the mainstream.
I questioned her yesterday about some of her white collar
sentences were actually quite lengthier than some of her
colleagues. Do you want to talk about what you mean by that her
opinions cannot be readily associated with a particular
political persuasion or judicial philosophy?
Ms. Romero. Well, there is no pattern that emerges of an
activist judge here. It is quite apparent that her opinions are
highly driven in that she relies extensively on the application
of the law to the facts that face her.
Senator Klobuchar. Thank you. Mr. Shaw, do you want to
comment a bit about what she was like in high school? You said
she was judicious and I was trying to imagine if I was
judicious in high school.
But you did know her from Cardinal Spellman High School. Is
that correct?
Mr. Shaw. Cardinal Spellman High School in the Bronx and
her temperament was even-keeled, calm. She was very thoughtful,
fair-minded. She treated all individuals equally. She exhibited
many of the qualities that she exhibits now.
Some of the testimony I have heard here is delivered by
people who don't know her and, frankly, who won't let the facts
get in the way. It has nothing to do with who she is. But I
understand part of what goes on at these hearings.
Her career is one that has been very extensive as a judge
and I cannot tell you that she would rule in the way that I
would want her to rule in every case if she were confirmed to
the Supreme Court. She hasn't done that in her career so far.
But I don't think that's the standard. I think that all any
of us can expect and hope for and want is that she is fair,
open-minded, and that she applies the law to the facts, and,
clearly, her record has done that. Her speeches are not how she
should be judged. It's her 17-year record on the bench.
Senator Klobuchar. Thank you. In fact, I imagine you might
not have agreed with some of the decisions. I think we found
out that of the discrimination claims that are brought before
her, she rejected 81 percent of them and, of course, had found
for some of them.
So I think it is a tribute, Mr. Shaw, that you would still
be here knowing that you may not have agreed with her on every
single decision that she made. Thank you very much.
Mr. Shaw. Thank you.
Senator Klobuchar. Senator Sessions.
Senator Sessions. I want to recognize Senator Kyl and let
him have my time now. But I would just note Senator Kyl is a
superb lawyer, senior member of this Committee, involved in the
leadership of the Senate. So I know that is why he has had to
get back over right now, because a lot of things are happening.
He also has argued three cases before the U.S. Supreme
Court, which very few lawyers in this country can have the
honor of ever arguing one.
Senator Kyl. Thank you, Madam Chairman. Thank you, Senator
Sessions. Just to give you one idea about what it is like to be
in leadership, we are trying to figure out right now, and the
reason I have been consulting my Blackberry, while listening
out of both ears to your testimony, and I thank all of you for
being here, is we are trying to figure out if we are going to
come back here and vote at 1 a.m. tomorrow morning or we are
going to try to have three different votes here yet this
evening and not come back at 1 a.m., the kinds of things
Senators consider all the time.
Again, let me thank all of you. First, with regard to the
last two panelists, I very much appreciate your discussion of
foreign law. It is a subject that I think this Committee needs
to pay a lot more attention to.
Judge Sotomayor has said two contradictory things and it
will be up for us to try to square which will, in fact, govern
her decisions on the Supreme Court, should she be confirmed.
She said, on the one hand, on numerous occasions, that she
thinks that foreign law should be considered and that she
agreed with Justice Ginsberg and disagreed with Thomas and
Scalia. I think, Mr. Rosenkranz, you pointed out what that
means in terms of the use of foreign law.
Yet, she has said here, even, I think, this morning, that
she does not think foreign law should be used in interpreting
the Constitution or statutes. So we are left to wonder and I
guess we will just have to try to figure that out.
I also wanted to specifically ask Tim Jeffries a question.
I know Tim Jeffries and I know of his considerable work on
behalf of victims of crime, and that is why I think you are a
good person to answer this question, Tim.
To me, there is one place where empathy does play a role in
a judge's decisions and I can think of only this one situation,
and it is at the time of sentencing, when at least some states
and the Federal Government now allows persons who are not
parties before the court to make statements before the court at
the time of sentencing.
That is a time where, to the extent there is discretion
with respect to sentencing, a judge can take into account what
people tell him about the victim, about the defendant, about
other matters, and empathy cannot help but play a role in that.
Could you just remind us, from your perspective of having
worked for victims' rights now, why it is important for judges
to consider the point of view of victims, in this particular
situation, in sentencing statements or in the other situations
in which it is appropriate for a victim or a victim's advocate
to make an appearance in a given case?
Mr. Jeffries. Thank you, Madam Chairman, Senator Kyl. As
you know, in the U.S. Constitution, there are over 20
references to defendants' rights. There are no references to
victims' rights.
Currently, under the Crime Victims' Rights Act, which is
Federal law, there are statutory protections for victims of
Federal crimes, which those protections provide the right to be
informed, to be present, to be heard. But that is just for
Federal crimes.
If you look at the states in our great union, it is a
patchwork quilt of victims' protections and in upwards to 15
states, there are no victims' protections whatsoever. It is
challenging enough that incomprehensible crime is committed in
our country. Fifty people will be murdered today, 760 people
will be raped today, over 3,000 people will be assaulted, and
over 4,000 children will be abused.
It's incomprehensible and as if that is not tough enough,
when people enter the justice system, which should exist to do
just things, revictimization often takes place.
Judge Sotomayor is a great American story, valedictorian of
her grade school, valedictorian of her high school, the Pyne
Prize at Princeton, summa cum laude, phi beta kappa, editor of
the Yale Law Journal. She has written 380 opinions. She has
given over 180 speeches. Even today, she said, ``It's important
to use simple words,'' and I quote.
So I can assure everyone here that when a victim, a
victim's family is in a courtroom, above and beyond the fact
that they're looking for justice that the system should mete,
they're looking for the kindness that a just system should
provide.
And whereas I continue to be very impressed with the
honorable Judge Sotomayor's story and her record of
accomplishment and all the incredible witnesses that have come
to support her, I'm extremely concerned that a jurist who
understands how important words are, through several decades of
speeches, could be so cavalier as it pertains to victims'
feelings.
And as I stated in my prepared remarks, forgiveness and
mercy are one thing. Justice and accountability are another
thing. And so I am just hopeful, I am prayerful that if Judge
Sotomayor is confirmed to our nation's highest court, that she
will never lose sight of what I'm sure were some very hard days
she spent as a prosecutor.
And with all due respect to the troubled lives of guilty
criminals, we should be focused on victims.
Senator Kyl. Thank you. Thank you, all panelists.
Senator Klobuchar. Thank you very much. Senator Kaufman.
Senator Kaufman. I just have a few questions. Ms. Romero,
can you tell us what Judge Sotomayor's confirmation would mean
to your organization, the long struggle for greater diversity
on the Federal bench?
Ms. Romero. It's not only about our organization. I think
it's about all Americans. It's about all Americans seeing
themselves reflected at the highest levels of our profession.
It's about public trust in the integrity of the judicial
system. It's about public faith and public understanding about
the law. On the day that Justice Souter announced his
retirement, I was in New Mexico speaking to a group of high
school students, 600 high school students, primarily Hispanic,
in an underserved area of New Mexico, of Albuquerque, and I
told them, ``I'm going to speak with you for about 5 minutes,
give me 5 minutes, and if you want to, afterwards, I will
answer any questions you want.''
I spoke to them for 5 minutes. Then they asked me questions
for 40 minutes. So I was very proud of the fact that they were
enormously interested in the law. But some of the questions
were a little bit more than troubling in the sense that they
reflected some distrust in their interactions with the judicial
system and on how the community interacts with the judicial
system.
So one of our missions as a bar association is to try to
educate youngsters about the fact that the law really is fair
and is just and that it reflects them and that it is accessible
to them. So it's about that, it's about access.
Senator Kaufman. Professor Shaw, can you tell us, just from
your vast background, just a little bit about the function of
legal defense funds and how they serve society?
Mr. Shaw. Sure. I worked for almost 26 years for the NAACP
Legal Defense Fund, ending up being director, counsel and
president. The Legal Defense Fund is the organization that was
borne out of the NAACP, which I consider to be and I think most
historians would consider to be the oldest civil rights
organization in this country, even though another claim has
been made here today.
But the Legal Defense Fund litigated Brown v. Board of
Education and many of the major civil rights cases on behalf of
African-Americans, but also others. PRLDEF was modeled after
the Legal Defense Fund, as were many other legal defense funds,
including some of the conservative legal defense funds that now
exist in other institutions in other parts of the world.
One of the things I would underscore, because I listened
with great interest to some of the things that some of the
witnesses said about Judge Sotomayor's role as a board member,
I know that as deputy director of the Legal Defense Fund and
then director-counsel, we made sure that the board understood
its role and the staff understood its role.
The board was not responsible for the selection of cases or
responsible for legal strategy. In fact, I worked very hard to
make sure that those lines remain drawn. That's not to say that
the board didn't get engaged in policy, but the staff and the
lawyers and the leadership of the organization have
responsibility for legal strategy and, also, for deciding what
cases would be filed.
And I think that's pretty much the way most legal defense
funds, including PRLDEF, operated.
Senator Kaufman. Thank you very much. I want to thank the
entire panel for being here today.
Senator Klobuchar. Senator Sessions.
Senator Sessions. Thank you. Thank all of you. This is
another good panel and I think it is enriching our discussion.
These will all be part of the record. It is reflective of a
commitment that the Senate should make and must make to make
sure this process is handled correctly. So thank you all.
I think the foreign law matter is a big deal to me. Some
people make out like it is nothing to this, this is just talk.
But it is baffling to me how a person of discipline would think
that foreign opinions or foreign statutes or U.N. resolution
could influence the interpretation of an American statute, some
of which may be 1970, 1776.
I think you mentioned, Mr. Rosenkranz, that Americans
revere the Constitution. I remember at a judicial conference,
11th circuit, Professor Van Alstine said that if you respect
the Constitution, if you clearly respect it, you will enforce
it as it is written, whether you like it or not; if you don't
do that, then you disrespect it and you weaken it.
And the next judge, someday further down the line, will be
even more likely to weaken it further and just because you may
like the direction somebody bent the Constitution this year in
this case does not mean you are going to like it in the future,
and our liberties then become greater at risk.
Would you agree with that?
Mr. Rosenkranz. Absolutely, Senator.
Senator Sessions. Ms. Rao, you discussed of these
philosophies. How do you feel about that? Ms. Rao, I am not a
legal philosopher and one of the level thoughts I have had in
the back of my mind, I think Judge Sotomayor would have been
better served to stay away from legal philosophers. It may be
the way her momma raised her and so forth. But legal
philosophies are another thing.
But she expressed some affirmation of legal realism. Is
that not a more cynical approach to the law in which the theory
is somewhat to the effect that, well, it is not realistic to be
idealistic about words having definite meanings and we all know
judges do differently.
Is that a fairly decent summary of that and the danger of
that philosophy?
Ms. Rao. I think that is one of the dangers of legal
realism. I think that there are two parts of legal realism.
There is one part that is largely descriptive, which is that
legal realism means that often a judge's viewpoint is going to
influence their judging, and I think that everyone recognizes
that's a possibility.
But I think many people go a step beyond that to say, well,
a judge's individual views should shape their judging, and I
think that is a big step.
Senator Sessions. So in this law review article, you have
read that. Did you read the law review article she wrote? I am
not sure it is an explicit endorsement, but it is certainly an
affirmation of that philosophy in many ways in her references
to it. Would you agree?
Ms. Rao. It seemed that way to me, as well. And I think
it's also supported by her other statements in which she has
said that there is no objective stance in judging. I think that
is all part of the same general idea.
Senator Sessions. And there were only perspectives, was
that the language? Do you remember those words?
Ms. Rao. Only a series of perspectives.
Senator Sessions. That does not mean much to me. I am not
sure I am comfortable with a judge who thinks things are just a
series of perspectives.
Have any of you been familiar with the French judicial
philosophy that involves single decisions? I am told it is a
technique that the French courts utilize to have--my time has--
--
Senator Klobuchar. You can keep going. Just speak in French
from now on.
Senator Sessions. I studied it for 2 years. My
understanding is that the French courts frequently use very
short, unsigned opinions, without dissents and without
discussion. So it is very difficult to understand the principle
behind their approach to law.
So I just wonder about that. Are you familiar? I didn't see
any. Thank you all for your comments and thoughts. We
appreciate it very much. This is an important issue and we
value your insight.
Senator Klobuchar. Thank you very much, Senator Sessions.
And I wanted to thank all of you, as well. Actually, Mr.
Rosenkranz, I did appreciate your testimony. I think it is a
valued issue to discuss. But I just wanted to make it clear,
when I asked you that question about the case, in fact, Judge
Sotomayor has written or joined more than 3,000 opinions in her
17 years as a judge and she has never used foreign law to
interpret the Constitution or statutes, and including the case
I mentioned. That does not mean that it is not a valid point to
discuss.
Mr. Rosenkranz. She has never used foreign law to interpret
the Constitution. I think she may have used it to interpret a
Federal statute.
Senator Klobuchar. The point of the issue is that when you
brought up the death penalty in the French system, is that she
had not used foreign law. In fact, she sustained the death
penalty in that case. Thank you.
Senator Sessions. There is a national debate. Just Ginsberg
favored that in her speech. She endorsed the Ginsberg model and
criticized the Scalia model.
Senator Klobuchar. And then one last thing that I wanted to
put on the record, a July 9 New York Times article entitled
``Sotomayor Meted Out Stiff Prison Terms, Report Indicates,''
in which it states that, ``Most striking was the finding that
across the board, Judge Sotomayor was more likely to send a
person to prison than her colleagues. This was true whether the
offender was a drug dealer or had been convicted of a white
collar crime.''
[The article appear as a submission for the record.]
Senator Sessions. Well, on that subject, I would point out
that the Washington Post study found that her criminal justice
decisions were on the left side of the Democratic judges.
Senator Klobuchar. You know what, Senator Sessions. We will
put both articles in the record. Very good.
Senator Sessions. Good deal. Mine is already in the record.
Senator Klobuchar. Great. I just want to thank all of you.
I know all of your thoughts were heartfelt and well researched.
Especially, thank you, Mr. Jeffries, for coming with a
difficult situation. I am so sorry about what happened to your
brother.
We are going to break for 5 minutes and then Senator
Kaufman is going to be taking over this next panel, our last
panel. Thank you very much.
Senator Sessions. I would note for the record it is highly
unlikely that I would be a ranking member and that Senator
Kaufman would be chairing this Committee. What a remarkable
development that is.
Senator Klobuchar. Exactly. Just for everyone's knowledge,
Senator Kaufman was Senator Biden's chief of staff for many,
many years and took over his seat, and so now he is going to be
chairing this Committee hearing.
Ms. Romero. Madam Chair, if I may?
Senator Klobuchar. This is just a free-for-all. Ms. Romero,
please comment.
Ms. Romero. No, I'm not commenting. I was just going to ask
to ensure that the longer statement can be submitted and
inserted into the record.
Senator Klobuchar. Certainly. Everyone's longer statements
will be included in this record for all of the panels. So thank
you very much. We will recess for 5 minutes and we will return.
[Whereupon, at 6:57 p.m., the Committee was recessed.]
After Recess [7:07 p.m.]
Senator Kaufman. We will now call our final panel, saving
the best for last, consisting of Patricia Hynes, Dean JoAnne
Epps, Mr. David Rivkin, and Dr. Stephen Halbrook.
Before we start, Michael J. Garcia was supposed to be here
today but--be here for the hearing, but he thought it was going
to be tomorrow. We all thought it was going to be tomorrow.
Welcome to the Senate. You never know when things are going to
happen. Without objection, what I would like to do is put his
statement in the record.
[The prepared statement of Mr. Garcia appear as a
submission for the record.]
Senator Kaufman. Also, Congressman Serrano is going to try
to make it, but why don't we do first--you know, as with in all
the prior panels, all witnesses, as you know, are limited to 5
minutes for their opening statements. Your full written
statement will be put in the record. Senators will then have 5
minutes to ask questions of each panel.
I would now like to ask the witnesses to stand and be
sworn. Do you swear that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Ms. Hynes. I do.
Ms. Epps. I do.
Mr. Rivkin. I do.
Mr. Halbrook. I do.
Senator Kaufman. Thank you.
Our first witness is Ms. Patricia Hynes. Patricia Hynes is
president of the New York City Bar Association, a former Chair
of the American Bar Association's Standing Committee on the
Federal Judiciary. She is also a senior counsel of Allen &
Overy, LLP. She was Assistant U.S. Attorney in the Southern
District of New York and clerked for Judge Joseph Zavatt in the
U.S. District Court for the Eastern District of New York. She
is a graduate of Fordham Law School.
Ms. Hynes, I look forward to your testimony.
STATEMENT OF PATRICIA HYNES, PRESIDENT, NEW YORK CITY BAR
ASSOCIATION
Ms. Hynes. Thank you. Thank you, Chairman Kaufman, Ranking
Member Sessions, and Senator Whitehouse. I am the president,
current president of the Association of the Bar of the city of
New York, and I appreciate the opportunity to speak to you this
evening regarding the nomination of Judge Sonia Sotomayor to be
an Associate Justice of the U.S. Supreme Court.
I am joined this evening by Lynn Neuner, who is sitting
right behind me, who chaired the Subcommittee of our Executive
Committee that conducted the evaluation of Judge Sonia
Sotomayor.
As this Committee is aware, the Association of the Bar of
the city of New York is one of the oldest bar associations in
the country, and since its founding in 1870 has given priority
to the evaluations of candidates for judicial office. As far
back as 1874, the association has reviewed and commented on the
qualifications of candidates for the U.S. Supreme Court.
It is a particular honor for me to participate in this
confirmation process for this particular nominee.
In May 1987, our association adopted a policy that directs
the Executive Committee, our governing body, to evaluate all
candidates for appointment to the U.S. Supreme Court. The
Executive Committee has developed an extensive procedure for
evaluating Supreme Court nominees, including a process for
conducting research, seeking views of persons with knowledge of
the candidate, and of our membership of more than 23,000
members of the New York Bar and other bars. We evaluate the
information we receive and express a judgment on the
qualification of a person nominated to the U.S. Supreme Court.
In 2007, the Executive Committee of the association moved
to a three-tier evaluation system by including a rating of
``Highly Qualified.'' This is the first time the association
has used the three-tier rating for a nominee to the Supreme
Court.
In evaluating Judge Sotomayor's qualifications, the
association reviewed and analyzed information from a variety of
sources. We reviewed more than 700 opinions written by Judge
Sotomayor over her 17 years on both the circuit court and the
district court. We reviewed her speeches, articles, her prior
confirmation testimony, comments received from members of the
association and its committees, press reports, blogs,
commentaries, and we conducted more than 50 interviews with
judicial colleagues, former law clerks, numerous practitioners,
as well as an interview with Judge Sotomayor herself.
The Executive Committee, on evaluating the qualifications
of Judge Sotomayor, passed a resolution at its meeting on June
30th finding Judge Sotomayor highly qualified to be a Justice
of the Supreme Court based upon the committee's affirmative
finding that Judge Sotomayor possesses to an exceptionally high
degree all of the qualifications enumerated in the
association's guidelines for evaluations of nominees to the
Supreme Court, and those guidelines are: exceptional legal
ability, extensive experience and knowledge of the law,
outstanding intellectual and analytical talents, maturity of
judgment, unquestionable integrity and independence, a
temperament reflecting a willingness to search for a fair
resolution of each case before the court, a sympathetic
understanding of the court's role under the Constitution in the
protection of personal rights of individuals, and an
appreciation of the meaning of the United States Constitution,
including a sensitivity to the respective powers and reciprocal
responsibility of Congress and the executive branch.
These guidelines establish a very high standard which, in
our opinion, Judge Sotomayor clearly meets. Specifically, the
association found that Judge Sotomayor demonstrates a
formidable intellect; a diligent and careful approach to legal
decision-making; exhibiting a firm respect for the doctrine of
judicial restraint, separation of powers, and stare decisis; a
commitment to unbiased, thoughtful administration of justice; a
deep commitment to our judicial system and the counsel and
litigants who appear before the court; and an abiding respect
for the powers of the legislative and executive branches of our
Government.
We believe Judge Sotomayor will be an outstanding Justice
of the United States Supreme Court, and I am very grateful to
this Committee for giving me the opportunity to express the
views of the Association of the Bar.
[The prepared statement of Ms. Hynes appear as a submission
for the record.]
Senator Kaufman. Thank you, Ms. Hynes.
Our next witness is Dean JoAnne A. Epps. JoAnne Epps is the
dean of the Beasley School of Law at Temple University, and she
has taught at the International Criminal Tribunal for Rwanda.
She is here today to speak on behalf of the National
Association of Women Lawyers, where she serves as the Co-Chair
of the Supreme Court. Dean Epps, I attended Temple for one
course. I am sorry I did not graduate. But I have enjoyed
Temple basketball for over 50 years, so I am looking forward to
your testimony.
STATEMENT OF JOANNE A. EPPS, DEAN, TEMPLE UNIVERSITY BEASLEY
SCHOOL OF LAW, ON BEHALF OF THE NATIONAL ASSOCIATION OF WOMEN
LAWYERS
Ms. Epps. Thank you very much, Mr. Senator. Senator
Kaufman, Senator Sessions, Senator Whitehouse, I am really
honored to be here this evening on behalf of the National
Association of Women Lawyers, whose president, Lisa Horowitz,
is seated behind me as I speak. And we are here today to urge
your vote in support of the confirmation of Judge Sotomayor to
be an Associate Justice of the Supreme Court.
After careful evaluation of Judge Sotomayor's background
and qualifications, the National Association of Women Lawyers,
NAWL, has concluded that Judge Sotomayor is highly qualified
for this position. She has the intellectual capacity, the
appropriate judicial temperament, and respect for established
law and process needed to be an effective Justice of the
Supreme Court. She is mindful of a range of perspectives that
appropriately should be considered in rendering judicial
decisions and, if confirmed, will clearly demonstrate that
highly qualified women have a rightful place at the highest
levels of our profession. We, therefore, encourage your vote in
favor of her confirmation.
Founded over 100 years ago, and with thousands of members
from all 50 States, NAWL is committed to supporting and
advancing the interests of women lawyers and women's legal
rights. We campaigned in the 1900's for women's voting rights
and the right of women to serve on juries, and we supported
most recently this year the Lilly Ledbetter Fair Pay Act.
In all of the intervening years, NAWL has been a supporter
of the interests of women. As such, NAWL cares deeply about the
composition of the Supreme Court and ensuring that it includes
the perspectives of all Americans, especially those of women,
not just because most of our members are women, but because all
of our members care about issues that affect women.
NAWL's recommendation today is based on the work of NAWL's
Committee for the Evaluation of Supreme Court Nominees. In
evaluating the qualifications of Judge Sotomayor to serve as an
Associate Justice, special emphasis was placed on matters
regarding women's rights or that have a special impact on
women. Eighteen committee members were appointed by the
president of NAWL and include law professors and a law dean,
appellate practitioners, and lawyers concentrating in
litigation. I co-chaired this committee together with Trish
Refo, a partner at Snell & Wilmer in Phoenix, Arizona.
We divided our committee work into two categories. Like
others who testified here today, we read a large selection of
Judge Sotomayor's opinions, and we interviewed more than 50
people who know her in a variety of capacities. Those who were
interviewed described Judge Sotomayor as open-minded but
respectful of precedent, which is consistent with what we found
in her judicial opinions. She is courteous and respectful to
those with whom she has professional interactions, including
those who do not occupy positions of status or influence. She
has treated litigants, attorneys, and court personnel--and, in
particular, for our committee's review, women in the courts--
with the utmost respect and professionalism both in and out of
the courtroom. Those who have interacted with Judge Sotomayor
in other capacity, both before and after she was appointed,
describe her as a good colleague, a team player, and supportive
of institutional goals.
Our review of Judge Sotomayor's writing included her
majority opinions, concurrences, dissents, and opinions that
she wrote or joined in that were reviewed by the Supreme Court.
And from that review, we have concluded that Judge Sotomayor
has consistently displayed a superior intellectual capacity, a
comprehensive understanding of issues with which she was
presented, and a thorough and firm grasp of the legal issues
that have come before her.
Looking at the clock, I would like to move to the final
point that we would like to say. NAWL supports the confirmation
of Judge Sotomayor for the important message that it conveys.
NAWL does not believe that Judge Sotomayor should be confirmed
solely because she is a woman or a Latina, but the fact is that
Judge Sotomayor is, as ultimately we all are, a product of her
experiences. And for her, those experiences include life as a
woman and as a Latina. Both perspectives will be welcome
additions to this Court's deliberations.
As a Nation, we have come a long way, but we still have
much to do. Women are nearly half of this Nation, but a mere
one-ninth of the Supreme Court. The disparity in representation
is not trivial in effect. In the legal profession, although
women have comprised 50 percent or more of graduating law
school classes for more than two decades, they continue to be
markedly underrepresented in leadership roles in the
profession. As of last year, women were only 16 percent of
equity partners in the country's largest law firms; 99 percent
of the law firms in this country reported that their highest
paid lawyer was a man. Just 23 percent of Federal district and
circuit court judges were women. Just 1.9 percent of all law
firm partners were women of color. And 19 percent of the
Nation's law firms have not one lawyer of color.
Your confirmation of Judge Sotomayor will, therefore, send
a strong message to law firms, corporations, Government, and
academia that we must and can eliminate the persistent barriers
to the advancement of women attorneys. It will reinforce what
should be a standard expectation: that women of diverse ethnic
backgrounds should, of course, occupy positions of parity with
men.
As others have said this week, I long for the day when it
would not even occur to anyone to mention Judge Sotomayor's
gender or ethnicity, those matters having become non-
noteworthy. But that time is not yet here. With this vote, you
will send a message, most especially to the wonderful women and
girls in your life, telling them not just that they matter but
that issues of concern to them matter.
In summary, NAWL, the National Association of Women
Lawyers, found Judge Sotomayor eminently qualified for this
position, but not simply because she is a woman. She has the
intellectual capacity, the appropriate judicial temperament,
and respect for established law and process to be an
outstanding Supreme Court Justice. She is mindful of the human
component of law and symbolizes the triumph of intelligence,
hard work, and compassion. Accordingly, NAWL strongly supports
her confirmation and urges you to vote in favor of her.
Thank you very much for the opportunity to be here today.
[The prepared statement of Ms. Epps appear as a submission
for the record.]
Senator Kaufman. Thank you, Dean Epps.
Our next witness is the Honorable Jose E. Serrano.
Congressman Serrano, will you please stand and be sworn? Do you
swear that the testimony you are about to give before the
Committee will be the truth, the whole truth, and nothing but
the truth, so help you God?
Mr. Serrano. I do.
Senator Kaufman. Thank you.
Representative Jose Serrano represents the 16th
Congressional District of New York in the Bronx. He is an
active member of the Congressional Hispanic Caucus and now is
the most senior member of the Congress of Puerto Rican descent.
Previously, Representative Serrano served in the 172nd Support
Battalion of the U.S. Army Medical Corps and was a member of
the New York State Assembly.
Congressman Serrano, I look forward to your testimony.
STATEMENT OF HON. JOSE E. SERRANO, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW YORK
Representative Serrano. Thank you. And before you start the
clock running, sorry I am late. I am Chairman of the Financial
Services Appropriations Subcommittee. My counterpart is Senator
Durbin, and we just passed our bill with 17 amendments, a
motion to recommit, and a lot of issues that had nothing to do
with my bill being discussed.
Senator Kaufman. No one starts a clock on a member of the
Appropriations Committee prematurely.
[Laughter.]
Representative Serrano. You are well taken care of,
Senator.
Senator Kaufman. Thank you.
Representative Serrano. Senator Kaufman, thank you, Senator
Whitehouse, thank you, Senator Sessions. Thank you so much for
the honor you have given me by inviting me to testify on behalf
of Judge Sonia Sotomayor.
Today I represent the proudest neighborhood in the Nation--
the Bronx, New York. I cannot begin to describe the pride and
excitement that my community feels to know that one of our own
stands on the verge of a historic confirmation to the Supreme
Court. Like you, I am often greeted by constituents on streets,
at diners, after church services, where I cut my hair, at the
local bodega or my favorite cuchifrito stand. Usually, we talk
about a personal or congressional issue or simply a friendly
greeting. Now they just talk about Sonia.
They speak about her as if she was a member of their own
personal family, about their pride in her accomplishments. They
show a profound understanding of just how significant this
nomination is and how it proves that in our country everything
is possible.
One of the best examples of the significance of this
nomination is the number of people who are watching these
hearings. In the Bronx, and in many communities around the
Nation, folks have come together to share this moment. That is
a clear sign of the pride and joy that they feel. Back home,
believe me, it is a celebration.
Like the nominee, my family moved from Puerto Rico to New
York. Like her, I grew up in a public housing project in the
Bronx. Like her family, we also struggled in our new
surroundings. It was tough in the Bronx, but we had dignity and
our eye on a better future.
One of the proudest moments of my life came when I was
first elected to the New York State Assembly with my classmate,
Senator Chuck Schumer. As we were being sworn in, a friend said
to my father, ``Don Pepe, you are a lucky man. You have two
children. One son is a school teacher, and the other is an
Assemblyman.'' My Pop, with that wonderful accented English,
looked at him and replied, ``I busted my back to get lucky.''
I am sure that Judge Sotomayor and her mother have had many
similar moments. We are living our parents' dreams, enabled by
their sacrifices and years of hard work. But our story is not
unique to the community we come from. All around our great
Nation there are people working day and night, saving, doing
without, all in order that their children could live the life
that they want for them.
Sonia represents the best of American culture. She comes
directly from the strand of our national character that says,
``You can be anything you want.'' It says, ``Through hard work,
you can reach the top in this country.'' She is living proof
that our dreams for our children are never impossible.
When you invited me to speak, I wondered if my role here
today was to tell you about her legal qualifications. Coming
before you are many people who will speak to her work and the
legal profession. We know that she is highly regarded and that
she has a deep understanding of the law and profound respect
for the Constitution. She comes before you with more Federal
court experience than any other nominee in the last 100 years.
You know, I quickly came to the conclusion that my role is to
tell you about where she comes from, how she got to this point,
and what this means for our country.
We come from rough neighborhoods. We were surrounded by
people making do on little. Sometimes there was desperation and
despair. Around us were many distractions that could have taken
us down a totally different road, but there was also ambition
and people determined to make something of themselves. We came
from a place where family comes first, where the core values
are hard work and looking out for one another.
As I moved out into the wider world, first through the Army
and then in my political career, I learned that these were not
liberal or New York or Puerto Rican or Latino values. They are
American values.
Bronx neighborhoods may not seem as similar to middle
America, but the values that we hold dear--family, freedom,
looking out for the neighbors--are the same. Everyone watching
this nomination this week should know that based upon her
background and ideals, they are in good hands with Judge
Sotomayor.
When I walk into the Capitol to work every day, I often
stop and think how fortunate I am as a kid from a Bronx project
to make it here. It is an incredible story that I have lived,
but since she was nominated by President Obama, I have had to
remember that my story pales in comparison to hers.
In conclusion, this proud woman from the Bronx is perhaps
the best and the brightest we have. She has risen to the top
through her incredible intellect and hard, hard work. I know
that her values are your values and those of people around this
country. Her story is my story. But her story is your story or
that of your parents' or your grandparents'. She will be a
brilliant member of the Court, and I urge you to vote for her
nomination, and I thank you for allowing me to show up late and
for giving me this honor, which is one of the greatest I have
ever had, to testify on behalf of this great woman.
[The prepared statement of Mr. Serrano appear as a
submission for the record.]
Senator Kaufman. Thank you, Congressman. It is our honor
having you here.
Senator Sessions. Congressman, thank you. That was a
beautiful statement.
Representative Serrano. Thank you.
Senator Sessions. We appreciate it very much.
Representative Serrano. And with your permission--I do not
know if it is allowed--I have some statements I have made about
her in the past in 1998 and 1999 that I would like to submit
for the record.
Senator Kaufman. Without objection.
Representative Serrano. Thank you.
[The statements appear as a submission for the record.]
Senator Kaufman. Our next witness is Mr. David Rivkin.
David Rivkin is a partner in the law firm of Baker Hostetler.
Previously, he was Associate Executive Director and Counsel to
the President's Council on Competitiveness at the White House
He also worked in both the Department of Justice and the
Department of Energy.
Mr. Rivkin, I look forward to your testimony.
STATEMENT OF DAVID RIVKIN, ESQ., PARTNER, BAKER HOSTETLER, LLP,
AND CO-CHAIRMAN, CENTER FOR LAW AND COUNTERTERRORISM,
FOUNDATION FOR DEFENSE OF DEMOCRACIES
Mr. Rivkin. Chairman Kaufman, Ranking Member Sessions, I
want to thank you for the opportunity to testify here today.
Indeed, I am honored to be here. Let me begin, though, by
noting briefly that I am appearing here on my own account and
do not represent the views of my law firm, its clients, or any
other entity or organization with which I am affiliated. I am
also not expressing a view as to how you should discharge
ultimately your advise-and-consent function.
Without a doubt, Judge Sotomayor is both an accomplished
jurist and an experienced lawyer. It is, nevertheless, critical
that the Senate weigh her understanding of the judiciary's
proper role in our constitutional system before consenting to
her appointment.
In my view, it is particularly essential that the Senate
probe her views on the proper judicial handling of national
security cases. This is the case for two distinct reasons.
First, the United States remains engaged in a protracted
global war against al Qaeda and the Taliban. Winning this war
is essential to our country, and its conduct has presented
novel legal challenges rarely seen in previous conflicts.
Second, despite Judge Sotomayor's long and distinguished
service on the Federal bench, she has not had the occasion to
consider many cases in the national security area. Therefore,
the central topic of the Committee's inquiry should be Judge
Sotomayor's understanding of the proper role of Article III
courts vis-a-vis the executive and legislative branches in the
area of national defense. To the extent that these hearings in
your judgment have not produced sufficient information
regarding her views in this area, I would urge the Committee to
pose written questions to her.
As you know, Congress and the President have traditionally
been accorded near plenary authority in the national defense
and foreign policy arenas, particularly when the conduct of
armed conflict is involved. In recent years, however, the
Supreme Court has dramatically expanded its role in these
areas. In my view, this has significant implications for our
Government's ability to prevent another devastating attack on
the United States and be able to win this war.
Indeed, there can be little doubt that the principles the
Supreme Court has developed since Hamdi v. Rumsfeld was decided
in 2004 make it far more difficult for the United States to
defeat any enemy that resorts to unconventional warfare.
For example, the Supreme Court has imposed what has proven
to be an unworkable habeas corpus regime with regard to the
detainees now held at Guantanamo Bay, Cuba.
Meanwhile, the lower courts have begun the process of
extending this habeas regime to individuals captured and held
by the United States in other parts of the world, particularly
at the Bagram Air Force Base in Afghanistan. This development
threatens our ability to wage war in the Afghan theater in
general and presents problems for operations of our special
forces in particular.
I want to emphasize that this judicial activism was not
prompted by, nor even exclusively directed at, the previous
administration's allegedly exaggerated view of executive power.
To begin with, the Bush administration's use of Presidential
powers, in my view, was far more modest than that of any
previous wartime American President.
Second, in striking the key parts of the Military
Commissions Act of 2006 in the 2008 Boumediene case, the
Supreme Court invaded the constitutional prerogatives of both
political branches. The Court's majority did not seem to be
particularly troubled by the fact that Congress and the
President worked in concert at the very height of their
respective Article I and Article II constitutional prerogatives
as identified in Justice Jackson's seminal Youngstown Sheet &
Tube analysis.
The substance of these cases aside, I am also troubled by
some of the stated assumptions that seem to undergird this
ongoing wave of judicial activism in the national security
area. These assumptions basically are that the courts are the
best guardians of civil liberties and that the extension of
judicial jurisdiction over all national security issues would
produce a superior overall policy for our Nation. This view is
both a historical and profoundly at odds with our
constitutional fabric. When Article III courts extend
jurisdiction over matters that are not properly subject to
judicial jurisdiction, they act extra-constitutionally. Such an
action by the courts, even if cloaked in the high-minded
language of individual liberty, is no better than any extra-
constitutional exertion of authority by congressional or
executive branch.
As we address these issues today, I note that these
concerns are now shared by both sides of the aisle. Despite
criticizing President Bush's wartime policies during last
year's campaign, President Obama has continued virtually all of
them. His administration's litigation strategy on all of the
pending key national security issues is identical to that of
his predecessor. This is especially true with regard to the
detention of captured enemy combatants without trial outside of
the United States.
His policies will continue to be challenged in the courts,
and the Supreme Court is certain to play a central part in
determining what those policies should be. If Judge Sotomayor
is confirmed, her rulings will have immense consequences for
our country's safety and security. I believe the Senate owes it
to the American people to engage her on these issues fully and
openly.
I thank you for the opportunity to share my views with the
Committee, and I look forward to your questions.
[The prepared statement of Mr. Rivkin appear as a
submission for the record.]
Senator Kaufman. Thank you, Mr. Rivkin.
Our final witness in this panel is Dr. Stephen Halbrook.
Dr. Stephen Halbrook has practiced law for over 30 years and
has authored or edited seven books and numerous articles on the
Second Amendment. Most recently, he drafted the amicus brief
for the Supreme Court case District of Columbia v. Heller,
which was signed by Vice President Cheney, 55 Senators, and 250
Members of the House of Representatives. He is a graduate of
Georgetown University Law Center.
Mr. Halbrook, I look forward to your testimony.
STATEMENT OF STEPHEN HALBROOK, ATTORNEY
Mr. Halbrook. Thank you, Chairman Kaufman, Ranking Member
Sessions, Senator Whitehouse. We've learned that Judge
Sotomayor ended the great baseball strike and we've learned
that she was and she is a fan of the New York Yankees.
However, in her decision in Maloney v. Cuomo, had the State
of New York decided to ban baseball bats, it would be upheld
under the rational basis test. Al Capone proved that you could
bash out the brains of two colleagues with a baseball bat.
Instead of banning one big piece of wood called a baseball
bat, New York State banned two little pieces of wood connected
by a cord called a nunchaku, and that's what the court upheld
in the Maloney case.
But for our purposes, the issue is the decision in Maloney
that the Second Amendment does not apply against the states
through the 14th Amendment. The court relied--the only Supreme
Court case relied on by Maloney was Presser v. Illinois, which
simply held that the First and Second Amendments do not apply
directly to state action. It was never raised whether the 14th
Amendment incorporated the Second Amendment through the due
process clause.
Presser relied on Cruikshank. Cruikshank relied on pre-14th
Amendment cases deciding that the Bill of Rights did not apply
directly against the states. But we find out in Heller, the
Heller decision, footnote 23, that Cruikshank does not apply
because it did not engage in the kind of modern 14th Amendment
analysis that's required by the Supreme Court's cases decided
primarily in the 20th century that Bill of Rights guarantees,
especially substantive guarantees, apply to the states through
the due process clause of the 14th Amendment.
Despite that admonition in the Heller case, decided a year
ago, the panel in the Maloney case did not say anything about
the modern incorporation analysis. Now, Judge Sotomayor did say
yesterday that under Supreme Court precedent, the Second
Amendment does not apply against the states through the 14th
Amendment. That's an inaccurate statement. The Supreme Court
has never decided that issue.
Now, there are pending before the Supreme Court two cert.
petitions on that issue, NRA v. Chicago, which arose out of the
Seventh Circuit, upholding the Chicago handgun ban, held that
incorporation had to be decided by the Supreme Court. That
court was not able to do it.
And Mr. Maloney has filed his own cert. petition and, in
fact, he's asked that. if cert. is granted in NRA v. Chicago,
that his case be consolidated with the NRA case.
Now, in her questionnaire, in response to this Committee's
questions, Judge Sotomayor stated that ``conflict of interest
would arise from any appeal arising from a decision issued by a
panel of the Second Circuit that included me as a member,'' and
she stated that she would recuse herself in that case.
She has decided the issue now pending before the Supreme
Court and, therefore, we would expect and we would hope that
she would recuse herself if she is, in fact, confirmed.
Now, another per curiam case that she participated in
deciding, Sanchez-Villar, has disturbing concerns involving
both Second and Fourth Amendment rights. That case held that
the mere possession of a firearm gave rise to probable cause to
search, seize and arrest the person in possession thereof.
Apparently, under New York law, it's a crime to possess a
firearm and it's only an affirmative defense that you have a
license for it. In that case, the court stated that the right
to possess a gun is clearly not a fundamental right.
That was totally unnecessary to the decision. It upheld a
conviction of an illegal alien for possession of a firearm. And
the correct decision would be to say that illegal aliens don't
have Second Amendment rights, and, in fact, the court
disregarded a Supreme Court decision in Verdugo-Urquidez,
decided in 1990, which explicitly stated that the people that
the term ``the people'' in the First, Second and Fourth
Amendments refers to are the members of our national community
and not to aliens and not to illegal aliens.
A third case I want to mention briefly, United States v.
Cavera, an en banc decision by the Second Circuit, upheld a Gun
Control Act prosecution and the sentencing under it. Judge
Sotomayor wrote a dissenting opinion that I think is
commendable.
She made a statement that ``Arbitrary and subjective
considerations, such as a judge's feelings about a particular
type of crime, should not form the basis of the sentence,'' and
she explained in great detail the reason for that. That's
exactly the way the law should be interpreted and
constitutional rights should be interpreted, as well. I think
she made the correct decision in that case.
The question now is whether she will also take Second
Amendment rights seriously, and that's the big unanswered
question. Thank you.
Senator Kaufman. Thank you, Mr. Halbrook. Congressman
Serrano, you talked about your district and how people feel.
How are young people growing up going to be affected by Judge
Sotomayor being on the Supreme Court?
Representative Serrano. It's amazing that you ask that
question. And I assure the rest of the panel I did not give him
that question. But I was talking to my chief of staff this
morning, who was telling me how many watching parties were
taking place in my district this week.
Watching parties, people come together with covered plates,
they bring food and they watch. And the question that seems to
be rising out of the young people is, ``What do I do to go to
law school? ''
Now, I don't know if this country needs more lawyers,
because you know the jokes about that, and I better stop,
because I'm not a lawyer. But I believe that what it has done
more than anything else--and it's not just her being on the
Supreme Court, but the exchanges between this panel and the
judge--is that people are becoming more aware of law cases, of
law issues.
And so No. 1, I think it will invite young people to
consider a legal profession. Second, the issue of pride is so
important in your own life.
When I was a young man, there weren't many Puerto Ricans
for me to look to in New York as successes. So I always looked
to Roberto Clemente, the baseball player, who was such a
dignified man and who insisted on being called Roberto and not
Bob, and then later on said Bob was Okay. And I saw that growth
and then his death was part of that dignity of that man.
But now, it's a different story. Now, there are some people
who look to me. There are people who look to artists. There are
people who look to other people.
But in closing, let me just say this. Nothing that you can
accomplish in this country looks bigger than the presidency or
the Supreme Court. So, obviously, it's going to inspire people
to say, ``I can do it.''
And, in fact, she told you here, while she was answering
some tough questions, that, in many cases, she was telling
people, ``You can make it. You can make it.'' And there's
nothing more pro-American than to say to somebody, ``You can
make it.''
Senator Kaufman. Thank you. Ms. Hynes, how did Judge
Sotomayor's experience as a prosecutor and a commercial
litigator affect your ruling on her qualifications?
Ms. Hynes. Well, it just shows how well rounded she is. I
was a prosecutor. Indeed, Bob Morganthau appointed me in 1967
and in those days, I was the one woman in that office of 100--I
have a great picture of a sea of 100 men and I sit behind Bob,
who was the boss. Right? And he started my career as he did
Judge Sotomayor's. I've had a wonderful career, but he gave me
that opportunity.
And I spent 15 years in the prosecutor's office and I went
up through the ranks and became executive assistant. But when I
left the prosecutor's office and went out into practice on the
defense side, you really get the appreciation that there are
two sides to an issue. You really have to measure and judge.
So I think it makes her more well rounded, that she's seen
the prosecution side, those issues, the tensions, you heard the
representative of the police association. You have Louis Freeh,
who we all worked with in that same office.
So she has the appreciation of those tensions, but she also
understands the defense side and she combines that with the
commercial litigator, a prosecutor, a trial judge, and an
appellate judge. She is the total package. She is the total
package and she has done it in the best possible way.
And when I listen, as I've tried to do to all of the
testimony, I think you just have to look at what her background
is and her record. And after that, your question should be
answered, because she has been a terrific example of someone
who has very, very carefully applied the law and done what she
thought was right.
We are all proud of her. When I say I'm particularly proud
to be here tonight for this candidate, it's because in New
York, we know the quality of the judging that we have gotten
from Judge Sotomayor.
Senator Kaufman. Thank you very much. Dean Epps, based on
your analysis of your organization of her record, how would you
speak about Judge Sotomayor's judicial temperament?
Ms. Epps. Thank you very much, Senator. We asked a lot of
people who had the opportunity to appear before Judge
Sotomayor, to appear as opposing counsel, to work with her as
co-counsel, to be litigants before her, and we found
universally that people thought she had an extraordinarily
appropriate judicial temperament.
That doesn't mean that she's not passionate, which we
believe that she is. But in all responses, people described her
as respectful, considerate and kind. And so on that particular
issue, we were thoroughly satisfied that she has the
temperament to be an appropriate associate justice of the
Supreme Court.
Senator Kaufman. Thank you. Ranking Member Sessions.
Senator Sessions. Thank you. Congressman, thank you for
your eloquence. I just appreciate that very much. Ms. Hynes,
your professionalism and approach is worthy of the New York Bar
Association. I agree with you, from the beginning, that her
experience is really the rich kind of experience, almost an
ideal experience for any Federal appellate judge.
We have wrestled with a lot of issues that are
controversial in the legal system today and a lot of us care
deeply about those things. We are worried about some of the
things we see in the courts. So that affects how you approach a
nominee. But her background and her integrity is exceptional
and I appreciate that.
Ms. Epps, thank you for your testimony. Mr. Rivkin, I just
want to take a minute, because I guess Senator Lindsey Graham
asked some questions about national security issues.
You know that Congress and the President have traditionally
been accorded near plenary authority in national defense areas.
That is, I think, consistent with the heritage of our country,
up until very recent years, post 9/11 years.
I call your attention to a case before the second circuit,
Doe v. Mukasey, last year, and that is Attorney General
Mukasey, former judge from New York, Mukasey, in which a three-
judge panel that included Judge Sotomayor ruled, in part, that
certain provisions of the Patriot Act were unconstitutional
under the First Amendment.
Specifically, the panel found unconstitutional the
provisions of the Patriot Act allowing senior government
officials to certify that the release of certain documents
would endanger national security.
The panel stated, ``The fiat of a government official,
though senior in rank and doubtless honorable, cannot displace
the judicial obligation to enforce constitutional
requirements.''
Does that give insight into Judge Sotomayor's approach to
law? The opinion went on to state, ``Under no circumstances
should the judiciary become the handmaiden of the executive.''
Mr. Rivkin. I think it's a troubling opinion, Senator
Sessions. It may strike some people as a technical case. The
panel was concerned with the fact that the certifications by
senior government officials had to be treated by the courts as
conclusive expressed absent a showing of bad faith, and this
view that the scheme unduly displaces judicial power, that it
makes judiciary a rubber stamp.
And I find that surprising in a couple of ways. First of
all, I don't see how you can read the statutory language as
establishing a rubber stamp in the context of a bad faith
inquiry, let's say, by the director of FBI in making the
certification as to the national security consequences of the
disclosure of this information.
You can ask the director, ``How did you make the decision?
What facts did you look at? Was that something you did
generically? Did you drill down on it? How often have you
rejected such requests in the past? ''
So it is a meaningful scrutiny--it's a deferential inquiry,
but it's a meaningful inquiry. So I don't understand,
especially in a facial challenge, why would you dismiss it as
unconstitutional in a few short sentences.
Second, there is nothing unique about treating
certifications by government officials as conclusive. There are
numerous other criminal justice contexts, including, for
example, immunity orders arising in the context of grand jury
proceedings, or requests, for pen register information, where
such certifications have been treated with enormous deference
by the court.
What's interesting, from my perspective, Senator Sessions,
is that, ironically enough, more deference has been shown over
the years to these types of certifications in pure criminal
justice cases (drug cases, health fraud cases), than in
national security cases, even though, to me, the public safety
concerns are far more palpable in a terrorism case and justify
greater judicial deference to the executive.
Senator Sessions. I have seen some of that in our
Committee. Could you briefly give me this answer and see if I
am correct? We have got a lot of people that contend that
captured enemy combatants are entitled to habeas corpus.
Even in our Committee, Senators have contended we denied
habeas corpus. We have repealed habeas corpus. It is in the
Constitution. Why would you deny it to these captives?
But is it not true that when the Constitution was written,
it made provision for the habeas corpus, that it would never
interpret it as applying to enemy combatants that were captured
on the battlefield?
Mr. Rivkin. And held overseas. That is absolutely right.
That was the teaching of the post-World War II, Eisentrager
case. That was something that never happened throughout 200
years of American history. Yet the Supreme Court, in the space
of four short years, has changed this and imposed a habeas
regime to test the Executive's military detention decisions.
Senator Sessions. President Bush actually relied on the
historic interpretation. He was criticized because the Supreme
Court basically changed the law later. Is that correct?
Mr. Rivkin. That's correct. And the Bush administration
merely followed the well established legal architecture,
Senator Sessions. For anybody who has seriously looked at the
case law, their legal positions were entirely reasonable and
solidly anchored in binding precedent.
It is Supreme Court that went away from it own opion
decisions. What's even more regretable, from my perspective, is
that lower courts are now expanding this further. The biggest
problem now is that the lower courts are then extending
constitutional habeas to Bagram.
Senator Sessions. And reading Miranda warnings, it appears.
Mr. Rivkin. Miranda warnings are now being roughly read
when captering enemy combatants on foreign battlefields.
Senator Sessions. Mr. Halbrook, you wrote the brief on
behalf of 55 Senators in the Heller case and your view, I
guess, was accepted.
Is it true that the decision, the Maloney decision, that
Judge Sotomayor was a member of the panel that ruled on it, and
you have expressed concerns about it, is it not true that that
case will need to be reversed or the Second Amendment does not
apply to the states in any city in the country and state
government could completely deny people the right to keep and
bear arms?
Mr. Halbrook. Senator Sessions, the basic issue was, first
of all, the meaning of the Second Amendment. In Heller, the
court said it protects an individual right to keep and bear
arms, including possession of a handgun in your home.
And Judge Sotomayor's answers to questions about that
decision, by the way, this week, have been very noncommittal as
to whether she agrees with the decision. She does recognize
that it's precedent, of course.
And then the next issue is whether the Second Amendment
applies to the states through the 14th Amendment due process
clause, like virtually every other Bill of Rights freedom,
assembly, petition, free speech, press, unreasonable search and
seizure, the right to counsel, the whole works.
And it's only logical, once it has conceded, it has held
that it's an individual right, that it would be considered an
explicitly guaranteed right in the Constitution. Being
explicitly guaranteed normally means it's a fundamental right
and the test of--instead of rational relation, the compelling
state interest test would apply, like other fundamental rights.
So that's the issue that's before the Supreme Court right
now.
Senator Sessions. Regardless of whether or not the
precedent justified the decision in Maloney, and I think we can
argue about that, but the point is that decision would
eviscerate effectively the protection, the constitutional
protection to keep and bear arms, if it became the Supreme
Court opinion.
Mr. Halbrook. That would be correct.
Senator Sessions. The Supreme Court affirmed that approach.
It is going to need to reverse that approach or the Second
Amendment is severely weakened and really eviscerated. Is that
right fundamentally? Am I exaggerating?
Mr. Halbrook. Well, most of the firearms laws--that's
correct. There's 20,000 firearm laws on the books and most of
them are at the state and local level, not Federal law.
The Federal Gun Control Act has expanded greatly in the
past years, but most firearms possession issues involve state
and local law. And the ruling in the seventh circuit case in
NRA v. Chicago and the ruling in Maloney is that the Second
Amendment has no application to states and localities.
So you could ban firearms. You could ban anything you
wanted to ban. Anything that would be an arm, the Second
Amendment just doesn't apply. It would be a curious doctrine
that here you have the fundamental right, protected in the Bill
of Rights, to say that it only applies to the Federal
Government.
The 14th Amendment's framers desired and intended that the
bill of rights guarantees apply to the states through the 14th
Amendment. And one of the big issues of protection was the
right of freed slaves to keep and bear arms, because they were
violated by the Black Codes that were enacted by the southern
states after the Civil War.
And to get rid of that kind of discrimination, to allow
freedmen to keep and bear arms, to have free speech and to have
all the other rights that are set forth in the Bill of Rights,
that was the intent of the 14th Amendment and that's the issue
before the Supreme Court now and that's the issue that Maloney
decided adversely.
Senator Sessions. Thank you, Mr. Chairman. You are very
kind.
Senator Kaufman. Senator Whitehouse.
Senator Whitehouse. Thank you, Chairman. Here we are with
the last panel, last witness, last question or last questioner
anyway. I do not want to cause undue trouble, but I would like
to react to Dr. Halbrook's testimony, which, first of all, I
think was fine.
You are very learned. You are outside counsel for the
National Rifle Association. You are knowledgeable about their
issues. You have won these cases in court before. Your advocacy
was ardent, but also very polite and cordial.
So I have no problem with what your testimony said. My
concern is this, and I mention this in front of the ranking
member, because he has been energetic on this point. There have
been an array of witnesses who have made similar points and
there has been an array of questioning, really almost nonstop
questioning on Heller and Maloney.
As I understand the history of this, for 220 years, the
United States Supreme Court never recognized any individual
right to bear arms. Just last year, a new conservative
majority, by the barest of majorities, discerned, for the first
time, a new constitutional right, individual right, to bear
arms, which is fine. That is now the law of the land.
But it applied only in D.C. So it applied only to Federal
law. So the case itself never reached the question of the
application of the individual right that Heller announced in
its application to the states or, for that matter, to
municipalities.
And that is against a background tradition of fairly
extensive regulation of firearms by states and municipalities,
restrictions on felons in possession, regulation of permits to
carry concealed weapons, sentencing enhancement for armed
crime, prohibitions against unauthorized discharge of firearms
in city limits and so forth, all of which are well established.
Now, it could well be that when the Supreme Court is
presented with an opportunity to discuss Heller and to evaluate
whether it should be extended to apply against states and
municipalities, that it may choose to do that. But it strikes
me that that is presently an undecided question by the Supreme
Court.
And as you yourself said a moment ago, the question of the
application of precedent in Maloney is one we can argue about.
What I would hate to have happen here would be to create an
atmosphere in which a Supreme Court candidate feels that he or
she is going to walk into a volley of fire if he or she will
not announce in advance or signal in advance an intention to
expand Heller beyond where it now is, where the law has never
gone before.
Maybe it should go there, maybe it will go there, but the
point of fact is that at this point in time, it has not gone
there. I believe there is a point at which it verges on
unseemly lobbying of the nominee to send signals as to where
she will vote when the inevitable petition to expand Heller
gets brought before the court.
I do not think it is appropriate for her to decide that
matter. I do not think her decision in Maloney is outside of
the bounds of normal judicial precedent, particularly in light
of the unique circumstances of the Heller decision, the 220
years of having never discovered the right before, the
limitation to Federal law by virtue of being a D.C. case, and
the long history of state and municipal regulation of firearms
without constitutional objection.
So it seems to me that a cautious judge, small ``C''
conservative judge, would be inclined not to expand Heller at
that point, but to make her decision within what she perceived
the law to be at the time and then if the court wanted to
further expand this new constitutional right, that would be the
job of the court.
But I hope that we have not, in the course of this hearing,
begun to trespass into a point in which the message is being
sent to Justice Sotomayor or to subsequent nominees that they
need to signal how they will rule on a case that the Supreme
Court has not yet decided in order to achieve confirmation,
because I think, again, that crosses a boundary between testing
the credentials of a candidate in a proper advise-and-consent
and what is, I think, unseemly and improper for the advice and
consent process, which is to seek commitments in future cases
or to lobby as to outcomes in future cases.
I know that the ranking member feels very strongly about
that this right should be extended and we will all have the
opportunity in due course to make our views known. But I just
want to point out that I think in this advise and consent
process, there is a point at which making one's point about
something does trespass on unseemly lobbying.
I am not sure we have reached that point yet, but I think
we are in that neighborhood anyway and I would hope that my
colleagues, as they evaluate Justice Sotomayor, would take that
into consideration and evaluate her based on her talents, her
abilities, and not on her failure to give what I think would be
an improper advanced signal as to how she might rule as a
Supreme Court justice in Heller 2, whatever the case will be
named.
Senator Sessions. Well, you are a good lawyer and you make
a good point. I would say two things.
Senator Whitehouse. We were both U.S. attorneys, so we
argue with each other all the time.
Senator Sessions. He is my chairman of the Courts
Subcommittee. But two things I would say about it. Number one,
it has been appropriate to ask nominees about cases they
decided, and she has decided this case.
And I think Senator Kyl made a good point. If her case were
the one that goes up to the Supreme Court, certainly, she would
recuse herself, would have to, I think, under the rules, and
maybe even if another one with the very same issue comes up,
maybe she should consider it.
Number two, let me tell you what the average American
thinks. Just reading the words in the Constitution, it says
``Congress shall make no law respecting the establishment of
religion or free speech.'' It says Congress. That means the
U.S. Congress. But that applies to the states. That has been
incorporated.
The Second Amendment says, well regulated militia, ``the
right of the people to keep and bear arms shall not be
infringed.'' So that one, all that stuff, it just seems to
apply to the people.
Senator Whitehouse. I think the ranking member is a very
good lawyer and he makes a very good argument. My only point is
that the----
Senator Sessions. Maybe we ought to have the experts on
that.
Senator Whitehouse.--Supreme Court has not accepted that
argument yet and until it does, it is an unanswered question.
Again, I do not want to say that we have trespassed that point
at this stage, but I do think that it is worth demarcating as
we go through this advice and consent process.
But there does come a point where it begins to look like we
are pressuring candidates to reach a particular outcome and to
make pledges about a particular outcome rather than simply
evaluating the merit of their decisions.
But your argument is very well made and it may very well
prevail when that case comes before the Supreme Court.
Senator Kaufman. I thank the panel. I have no further
questions.
Senator Sessions. Mr. Chairman, it has been great to serve
under your leadership.
Senator Kaufman. This has been great. This is a great
panel.
Senator Sessions. Who needs Pat Leahy? Don't you tell him I
said that.
[Laughter.]
Senator Kaufman. I need Pat Leahy. All I need is Pat Leahy
and a member of the Appropriations Committee. I want to thank
the panel and, frankly, I want to thank all the panels.
This is an incredible process. The ranking member said,
when he first started, that this is an educational experience
for the American people. I have been dealing with this process
for a long time and I really think that is true.
People get to stop for a minute, look at our Constitution,
look at the way our process works, and this is a wonderful week
in which people came, they argued, they fought, just this last
exchange.
Everyone can say what they think. We had not just the
members of the Senate, but Members of Congress, from the
public. I just think it is a wonderful example of what a great
country this is and how our Constitution works.
I would also like to thank Chairman Leahy and Ranking
Member Sessions for doing a very thorough hearing, being very
open to letting people go where they go and, yet, still getting
this whole thing done in record time.
This is an incredibly important process. I believe, as a
student of the Congress, outside of the decision to go to war,
the decision of who is going to be on the Supreme Court is the
single most important decision that you make as a United States
Senator, because when you pick a member for the Supreme Court,
you are picking someone who serves for life.
If Judge Sotomayor is confirmed and serves in the court,
she will probably be here long after this panel of Senators is
gone, except for Senator Whitehouse. But anyway, I just want to
thank everybody for doing that. The Chairman has left the
record open until 5 p.m.
Senator Sessions, anything you would like to say? This
hearing is hereby adjourned.
[Whereupon, at 8:04 p.m., the meeting was concluded.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files, see Contents.]
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