[Senate Hearing 111-503]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 111-503




                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             FIRST SESSION


                            JULY 13-16, 2009


                          Serial No. J-111-34


         Printed for the use of the Committee on the Judiciary

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
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
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


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


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


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 
    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


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, 
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 



                         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.
    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 
    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.


    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 
    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 
    Senator Sessions.


    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 
    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 
    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 
    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 
    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 
    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.


    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 
    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.


    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 
    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.


    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 
    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 
    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-
    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 
    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 
    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.


    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.


    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 
    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 
    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 
    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 
    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 
    Senator Kyl.


    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 
    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 
    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 
    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.


    Senator Schumer. Thank you, Mr. Chairman and Ranking Member 
    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 
    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 
    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.


    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 
    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 
    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 
    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.


    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 
    Senator Cornyn.


    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 
    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 
    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 
    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 
    I thank you very much and congratulations once again.
    Chairman Leahy. Thank you very much, Senator Cornyn.
    Senator Whitehouse.


    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 
    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 
    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 
    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.


    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 
    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.
    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 
    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.


    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 
    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, 
    [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 

                          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.
    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.
    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 
    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.

                       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 
    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 
    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. 
    Another former Chairman of this Committee, Senator Specter. 
I yield to you.

                        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.
    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.


    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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.


    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 
    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.


    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 
    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 
    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 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 
    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 
    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.


    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 
    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.]



                         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?


    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Perhaps it would be useful if I explained to you my 
approach to collegiality on a court.
    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----
    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 
    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 
    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 
    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 
    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 
    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 
    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. 
    Judge Sotomayor. That plus some Second Circuit precedent 
that had held that it had not--that the amendment had not 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Grassley. Let me ask you a couple obvious, then. 
Does the--does the Constitution allow for takings without any 
    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 
    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.
    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.
    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.
    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 
    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 
    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 
    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 
    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 
    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----
    Judge Sotomayor. You were a very good lawyer, weren't you, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Feingold. You talked about nunchucks before.
    Judge Sotomayor. Okay.
    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 
    Judge Sotomayor. It's a question the court will have to 
    Senator Feingold. I appreciate your patience.
    Judge Sotomayor. And it's meaning----
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 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. 
    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, 
    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 
    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 
    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 
    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 
    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 
    Senator Schumer. Of treaties.
    Judge Sotomayor.--which we spoke about and even then is not 
binding. It's American principles of construction that are 
    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. 
    Chairman Leahy. Be careful. You want to keep the Chairman 
on your side.
    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 
    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 
    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 
    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.
    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 
    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, 
    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 
    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 
    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 
    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?
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Graham. Yeah.
    Judge Sotomayor. Which meant that it--its focus was on 
promoting the equal opportunities of Hispanics in the United 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    But I know that the attorney general's office, many people 
spoke to Congress on this issue and Congress passed a safety 
    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 
    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 
    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 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 
    I appreciate that and look forward to being with you in the 
    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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                        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 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 
    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 
    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, 
    Judge Sotomayor [continuing]. Be a pilot who has good 
    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 
    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.
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 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 
    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 
    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 
    Senator Kaufman. Can you tell us a little bit about your 
commercial practice? What actually were you dealing with as a 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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?
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Specter. It sure is. I was the Chairman who wasn't 
    Judge Sotomayor. No. I am sure----
    Senator Specter. And he was the Ranking Member who wasn't 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Judge Sotomayor. That, in fact, is one of the beauties of 
our constitutional system, which is we do have a separation 
    Senator Specter. Beauty is in the eyes of the beholder. It 
is only Constitution Avenue there.
    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.
    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 
    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 
    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.
    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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Judge Sotomayor. No, sir.
    Senator Franken. Are you sure?
    Judge Sotomayor. Yes.
    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?
    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----
    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.
    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 
    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 
    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 
    Chairman Leahy. Back to what is----
    Senator Sessions. That's the quickest ride of any Senator 
in history.
    Chairman Leahy. Back to what it----
    Senator Franken. I shouldn't do this.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    [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 
    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----
    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.
    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.
    Chairman Leahy. No. After your demonstrator, was it 
yesterday--your demonstrator, that you tend to turn people on, 
we don't need any more.
    Senator Grassley. Okay.
    Chairman Leahy. We don't need any more excitement, Senator 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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.
    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 
    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 
    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 
    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.]



                        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?


    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Judge Sotomayor. Absolutely, sir. I understand the 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Senator Cornyn. With respect, Judge, my question was do you 
agree with Chief Justice John Roberts' statement, or do you 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    [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.
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    [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 
    [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 
    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.]
    [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.


    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 
    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 
    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 
    Ms. Boies. I do not, Senator. We are happy to answer your 
    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 
    Could you tell us a little bit about the scope of the 
review that took place that enabled you to reach those firm 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 


    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 
    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 
    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.
    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 
    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 
    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.


    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.
    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 
    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.
    Mayor Bloomberg. And if you disagree with me, you haven't 
been to Brooklyn, Queens, or the Bronx.
    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 
    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.

                        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 
    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 
    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 
    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.


    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 
    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 
    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 
    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 
    It's a pleasure to have you before the Committee.


    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 
    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 
    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 
    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 
    Mr. Vargas.


    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 
    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 
    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.

                          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 
    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 
    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 
    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.


    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 
    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 
    But of course, Judge Sotomayor's offensive words are just a