[Congressional Record Volume 155, Number 85 (Tuesday, June 9, 2009)]
[Senate]
[Pages S6329-S6332]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                         JUDGE SONIA SOTOMAYOR

  Mr. LEAHY. Madam President, for the sake of my colleagues, I want to 
talk about the timing of the Judge Sotomayor nomination.
  I talked with the distinguished ranking member last week on this 
schedule, and I would note the concerns he raised, but I am announcing 
today that the Senate Judiciary Committee will hold the confirmation 
hearing on the nomination of Judge Sonia Sotomayor to be Associate 
Justice of the U.S. Supreme Court on July 13.
  I have talked and met with Senator Sessions, the committee's ranking 
member, several times to discuss the scheduling of this hearing. I will 
continue to consult with Senator Sessions

[[Page S6330]]

to ensure that we hold a fair hearing. We were able to work 
cooperatively to send a bipartisan questionnaire to Judge Sotomayor 
within one day of her designation by President Obama. Last week the 
committee received her response to that questionnaire. We also received 
other background information from the administration, as well as the 
official Presidential nomination.
  This is a reasonable schedule. It will be the middle of next month. 
It is in line with past experience. It will allow several more weeks 
for committee members to prepare for the hearing--several more weeks 
than if I had held the hearing this month--and there is no reason to 
unduly delay the consideration of this well-qualified nominee. Judge 
Sotomayor deserves the opportunity to go before the public and speak of 
her record, especially as some have mischaracterized and misstated it. 
The only place she can speak of her record is in a hearing.
  It is also a responsible schedule that serves the many interests 
involved. Of course, first and foremost is the American people's stake 
in a process that is fair and thorough but not needlessly prolonged. It 
serves the purpose of the institution of the Senate, where we need 
sufficient time to prepare for a confirmation hearing. We have a full 
legislative plate of additional pressing business in the weeks and 
months ahead that is of great importance to our constituents and to the 
Nation. Then, of course, it serves the need of the third branch of 
government, which depends on the other branches of government to fill 
court vacancies in our independent judiciary. It serves the needs of 
the President who has nominated Judge Sotomayor. And lest we forget, it 
serves the needs of the nominee herself, who as a judge will only be 
able to speak publicly about her record when the hearings are convened.
  This is an extremely important obligation that we as Members of the 
Senate take on. There are only 101 people who get a direct say in the 
nomination and confirmation of a Justice of the Supreme Court. First 
and foremost, of course, the President of the United States--and in 
this case, President Obama consulted with numerous Senators, 
Republicans and Democrats alike--prior to making his nomination. Then 
once the nomination is made, 100 Members of the Senate have to stand in 
for 300 million Americans in deciding who will get that lifetime 
appointment. I voted on every single current member of the Supreme 
Court, as well as some in the past, and I know how important an 
obligation that is.
  The Justice who takes Justice Souter's place for the court session 
that convenes October 5 also needs as much time as possible to hire law 
clerks, to set up an office, to find a place to live here in 
Washington, and to take part with the rest of the Court in the 
preparatory work that precedes the formal start of the session on the 
first Monday in October.
  I mention that because I have put together a schedule that tracks the 
process the Senate followed, by bipartisan agreement, in considering 
President Bush's nomination of John Roberts to the Supreme Court in 
2005. At that time, I served as the ranking minority member of the 
Judiciary Committee. I met with our Republican chairman, and we worked 
out a schedule which provided for Chief Justice Roberts' hearing 48 
days after he was named by President Bush.
  I might say that the agreement on time was reached even before the 
committee received the answers to the bipartisan questionnaire. And 
while Justice Roberts--then Judge Roberts--had not written as many 
opinions as Judge Sotomayor, he had been in a political policy position 
in Republican administrations for years before, and there were 75,000 
pages of documents from that time. In fact, some arrived almost on the 
eve of the hearing itself. And, of course, that nomination replaced 
Justice O'Connor, who was recognized as a pivotal vote on the Supreme 
Court.
  If something that significant required 48 days, and Republicans and 
Democrats agreed that was sufficient to prepare for that hearing, in 
accordance with our agreement on the initial schedule, certainly that 
is a precedent that says we have more than adequate time to prepare for 
the confirmation hearing for Judge Sotomayor.
  My initial proposal to Senator Sessions was that we begin the hearing 
on July 7, following the Senate's return from the Fourth of July 
recess. I have deferred the start date to July 13 in an effort to 
accommodate our Republican members. With bipartisan cooperation, we 
should still be able to complete Judiciary Committee consideration of 
the nomination during the last week in July, and allow the Senate to 
consider the nomination during the first week in August, before the 
Senate recesses on August 7.
  In selecting the date, I am trying to be fair to all concerned. I 
want to be fair to the nominee, allowing her the earliest possible 
opportunity to respond to attacks made about her character. It is not 
fair for critics to be calling her racist--one even equating her with 
the head of the Ku Klux Klan, an outrageous comment, and both 
Republicans and Democrats have said it was outrageous--without allowing 
her the opportunity to speak to it, and she can't speak to it until she 
is in the hearing.
  I also want to conclude the process without unnecessary delay so that 
she might participate fully in the deliberations of the Supreme Court 
selecting cases and preparing for its new term. In his May 1 letter to 
President Obama, Justice Souter announced his resignation effective 
``when the Supreme Court rises for the summer recess this year,'' which 
will happen later this month. Thereafter, the Supreme Court prepares 
for the next term. To participate fully in the upcoming deliberations, 
it would be helpful for his successor to be confirmed and able to take 
part in the selection of cases as well in preparing for their argument.
  I am merely following the timeline we followed with the Roberts 
nomination. The timeline for the Alito nomination provides no reason to 
delay the hearing for Judge Sotomayor. It presented a very different 
situation in many ways. For one thing, that nomination was made with no 
consultation by President Bush. By contrast, President Obama devoted 
several weeks to consultation with both Republicans and Democrats 
before making his selection. The Alito nomination was President Bush's 
third nomination to succeed Justice O'Connor. It followed 4 months of 
intense effort by the Judiciary Committee, beginning with Justice 
O'Connor's announcement on July 1. And finally, the Christmas holidays 
helped account for the timing of those hearings. I do not believe 
Bastille Day requires us to delay the confirmation hearings for the 
first Hispanic nominated to the Supreme Court for an additional 6 
weeks.
  Some may recall that Justice O'Connor's resignation in 2005 was 
contingent on the ``nomination and confirmation of [her] successor.'' 
She continued to serve on the Supreme Court when its new term began in 
October 2005, and until Justice Alito was confirmed at the end of 
January 2006. In addition, proceedings to fill that vacancy involved a 
more extended process, not only because Justice O'Connor represented a 
pivotal vote on the Supreme Court on so many issues, but because 
President Bush first nominated John Roberts and then withdrew that 
nomination, then nominated Harriet Miers and withdrew her nomination 
when Republicans and conservatives revolted, and finally nominated 
Samuel Alito. The nomination of Judge Alito was the third Supreme Court 
nomination that the Senate was asked to consider, and followed the 
withdrawal of the Miers nomination by only 3 days.
  Given that sequence of events, and the then upcoming Christmas 
holiday, that hearing on the late October nomination of Samuel Alito 
was appropriately scheduled by the Republican Chairman to begin after 
the New Year. In addition, Judge Alito did not return his questionnaire 
until November 30. His hearing was held 40 days after his questionnaire 
was returned, which includes the Christmas and the holiday period. That 
is substantially equivalent to the 39 days between the time receipt of 
Judge Sotomayor's questionnaire response and her hearing.

  Of course, in the case of the current nomination, Judge Sotomayor had 
been reported to be a leading candidate for the vacancy as soon as it 
arose on May 1, and her record was being studied from at least that 
time forward. The right wing groups attacking her were doing so long 
before she was named by the President on May 26, and those attacks have 
intensified since her designation.

[[Page S6331]]

  I do not want to see this historic nomination of Sonia Sotomayor 
treated unfairly or less fairly than the Senate treated the nomination 
of John Roberts. In 2005, when President Bush made his first nomination 
to the Supreme Court, Senator McConnell, who was the majority whip, 
said the Senate should consider and confirm the nominations within 60 
to 70 days. We worked hard to achieve that.
  The nomination of Judge Sotomayor should more easily be considered 
within that timeframe. Judge Sotomayor has been nominated to succeed 
Justice Souter, a like-minded, independent and fair Justice, not bound 
by ideology, but one who decided each case on its merits and in 
accordance with the rule of law. We have the added benefit of her 
career being one that includes her service on the judiciary for the 
past 17 years. Her judicial decisions are matters of the public record. 
Indeed, when my staff assembled her written opinions and offered them 
to the Republican staff, they declined, because they already had them 
and were reviewing them. We have the benefit of her judicial record 
being public and well known to us. We have the benefit of her record 
having been a subject of review for the last month, since at least May 
1, when she was mentioned as a leading candidate to succeed Justice 
Souter. We have the benefit of having considered and confirmed her 
twice before, first when nominated to be a judge by a Republican 
President and then when elevated to the circuit court by a Democratic 
President. We have the benefit of not having to search through 
Presidential libraries for work papers of the nominee. By contrast, the 
75,000 pages of work papers for John Roberts required extensive time 
and effort to retrieve them from Presidential libraries and to overcome 
claims of privilege. In fact, they were still being received just days 
before the hearing.
  To delay Judge Sotomayor's hearing until September would double the 
amount of time that Republicans and Democrats agreed was adequate to 
prepare for Judge Roberts' hearing. That would not be fair or 
appropriate. That would not be equal treatment.
  Unlike the late July nomination of John Roberts, this nomination of 
Judge Sotomayor by President Obama was announced in May. Unlike the 
resignation of Justice O'Connor that was not announced until July, the 
retirement of Justice Souter was made official on May 1. Given that the 
vacancy arose 2 months earlier, and the nomination was made after 
bipartisan consultation 2 months earlier, by following the Roberts 
roadmap, we should be able to complete the process 2 months earlier. We 
should be able to complete the entire process by the scheduled recess 
date of August 7.
  Of course, while the Roberts nomination was pending, Chief Justice 
Rehnquist passed away and President Bush decided to withdraw the 
initial nomination to be an Associate Justice, and proceeded to 
nominate John Roberts to succeed the Chief Justice, instead. We did not 
insist that the process start over; rather, we continued to move 
forward. It was the aftermath of Hurricane Katrina, with its 
destruction and toll in damage and human life, that pushed the start of 
the hearings back 1 week, by bipartisan agreement.
  We were still able to complete Senate consideration and the Senate 
confirmed John Roberts to be the Chief Justice 72 days after he was 
initially designated to be an Associate Justice. We did this despite 
the fact his initial nomination was withdrawn and only shortly before 
his hearing he was renominated to serve as the Chief Justice of the 
Supreme Court. And we did this despite the terrible aftermath of 
Hurricane Katrina, where everybody--Republicans and Democrats alike--
agreed that we should hold back a week on the hearings so we could all 
concentrate the Nation's resources on Hurricane Katrina. So that 
required a week's delay. If we followed the same schedule, 72 days 
after Judge Sotomayor was nominated to the Supreme Court would be 
August 6--and we will not have to lose 7 of those days to Hurricane 
Katrina.
  Her historic nomination should be treated as fairly as the nomination 
of John Roberts was treated by the Senate. Given the outrageous attacks 
on Judge Sotomayor's character, I do not think it fair to delay her 
hearing. I cringed when I was told that, during the courtesy visit 
Judge Sotomayor paid to Senator McConnell, reporters shouted questions 
about conservatives calling her a racist. She had to sit there silently 
and could not respond. She deserves that opportunity as soon as 
possible.
  The hearing is the opportunity for all Senators on the Judiciary 
Committee, both Republicans and Democrats, to ask questions, to raise 
concerns, and to evaluate the nominee. As Senator Sessions' Saturday 
radio speech ably demonstrates, Republican Senators are already 
prepared to ask their questions. Last week, we were considering another 
judicial nomination at the meeting of the Judiciary Committee when 
Senator Kyl suggested that he may oppose all of President Obama's 
nominees given what he views as the criteria President Obama is 
considering in selecting them. Republicans have questioned whether her 
recognition that she brings her life experience with her, as all judges 
do, is somehow disqualifying.
  Our Republican colleagues have said they intend to ask her about her 
judicial philosophy. It doesn't take a month to prepare to ask these 
questions. In fact, most of them have already raised the questions. 
They will surely be prepared to ask them more than a month from now. 
And during that month, we have a week's vacation from the Senate. I 
intend to be using that week--without the interruption of committee 
hearings, without the interruption of votes, without the interruption 
of the regular Senate business--to prepare for the hearings. I would 
advise those Senators who feel they have to have extra time to forgo 
your vacation and spend that week preparing for the hearing. Holding 
Judge Sotomayor's hearing on July 13 will, in effect, afford 10 weeks 
for them to have prepared.
  Because this is a historic nomination, I hope all Senators will 
cooperate. It is a schedule that I think is both fair and adequate--
fair to the nominee, but also adequate for the Senate to prepare for 
the hearing and Senate consideration. There is no reason to indulge in 
needless and unreasonable delay.
  I say this is a historic nomination because it should unite and not 
divide the American people and the Senate. Hers is a distinctly 
American story. Whether you are from the south Bronx or the south side 
of Chicago or south Burlington, VT, the American dream inspires all of 
us. Her life story is the American dream. And so, I might add, is the 
journey of the President who nominated her.
  Some are simply spoiling for a fight. There have been too many unfair 
attacks, people unfairly calling her racist and bigoted. I know Sonia 
Sotomayor, and nothing could be further from the truth. These are some 
of the same people who vilify Justice Souter and Justice O'Connor. 
Americans deserve better. There are others who have questioned her 
character and temperament. She deserves a fair hearing, not a trial by 
attack and assaults upon her character. So let's proceed to give her 
that fair hearing without unnecessary delay.
  I am also disappointed that some have taken to suggesting that after 
17 years as a Federal judge, including 11 as a member of the U.S. Court 
of Appeals for the Second Circuit, Judge Sotomayor does not understand 
``the judge's role.'' I know her to be a restrained and thoughtful 
judge. She has reportedly agreed with judges appointed by Republican 
Presidents 95 percent of the time. Let us respect her achievements, her 
experience and her understanding. Let no one demean this extraordinary 
woman or her understanding of the constitutional duties she has 
faithfully performed for the last 17 years. I urge all Senators to join 
with me to fulfill our constitutional duties with respect.
  I have said many times on the floor of this great body over my 35 
years here that as Senators we should be the conscience of the Nation, 
as we are called upon to be. There have been occasions when this 
Senate--Republicans and Democrats alike--has united and shown they can 
be the conscience of the Nation. I would say this is one time we should 
rise above partisanship and be that conscience.
  When I met with Judge Sotomayor, I asked her about her approach to 
the law. She answered that, of course, one's life experience shapes who 
you are, but ultimately and completely--

[[Page S6332]]

her words--as a judge, you follow the law. 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, a different one for poor. There is not one law 
for those who belong to one political party or another. There is one 
law for all Americans. And she made it very emphatic that as a judge, 
you follow that one law.
  There is only one law. We all know that. She said, 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 
that the American people expect. That is respect for the rule of law. 
That is the kind of judge she has been.
  The purpose of the hearing is to allow Senators to ask questions and 
raise their concerns. It is also the time the American people can see 
the nominee, consider her temperament and evaluate her character, too. 
I am disappointed that some Republican Senators have declared that they 
will vote no on this historic nomination and have made that 
announcement before giving the nominee a fair chance to be heard at her 
hearing. It is incumbent on us to allow the nominee an opportunity to 
be considered fairly and allow her to respond to false criticism of her 
record and her character. Those who are critical and have doubts should 
support the promptest possible hearing. That is where questions can be 
asked and answered. That is why we hold hearings.
  Judge Sotomayor is extraordinarily well equipped to serve on the 
Nation's highest court. To borrow the phrase that the First Lady used 
last week, not only do I believe that Judge Sotomayor is prepared to 
serve all Americans on the Supreme Court, I believe the country is more 
than ready to see this accomplished Hispanic woman do just that. This 
is a historic nomination, and it is an occasion for the Senate and our 
great Nation to come together. This is the time for us to come 
together.

  The process is another step toward the American people regaining 
confidence in their judiciary. Our independent judiciary is considered 
to be the envy of the world. Though less visible than the other two 
branches, the judiciary is a vital part of the infrastructure that 
knits our Nation together under the rule of law. Every time I walk up 
the steps into the Supreme Court, I look at the words over the entrance 
to the Supreme Court. They are engraved in marble from my native State 
of Vermont. Those words say: ``Equal Justice Under Law.'' The 
nomination of Judge Sotomayor keeps faith with that model.
  Her experience as a trial court judge will be important. Only Justice 
Souter of those currently on the Supreme Court previously served as a 
trial court judge. Judge Sotomayor has the added benefit of having been 
in law enforcement as a tough prosecutor who received her early 
training in the office of the longtime and storied New York District 
Attorney, Robert Morgenthau.
  I appreciate that she has shown restraint as a judge. We do not need 
another Supreme Court Justice intent on second-guessing Congress, 
undercutting laws passed to benefit Americans and protect their 
liberties, and making light of judicial precedent.
  President Obama handled the selection process with the care that the 
American people expect and deserve, and met with Senators from both 
sides of the aisle. Senator Sessions suggested to the President that it 
was important to nominate someone with a judicial record. Judge 
Sotomayor has more judicial experience than any nominee in recent 
history.
  I wanted someone outside the judicial monastery, and whose 
experiences were not limited to those in the rarified air of the 
Federal appellate courts. Her background as someone who was largely 
raised by a working mother in the South Bronx, who has never forgotten 
where she came from, means a great deal to me. Judge Sotomayor has a 
first-rate legal mind and impeccable credentials. I think she combines 
the best of what Senator Sessions and I recommended that the President 
look for in his nominee.
  The Supreme Court's decisions have a fundamental impact on Americans' 
everyday lives. One need look no further than the Lilly Ledbetter and 
Diana Levine cases to understand how just one vote can determine the 
Court's decision and impact the lives and freedoms of countless 
Americans.
  I believe Judge Sotomayor will continue to do what she has always 
done as a judge--applying the law to the case before her. I do not 
believe she will act in the mold of conservative activists who second-
guess Congress and undercut laws meant to protect Americans from 
discrimination in their jobs and in voting, to protect the access of 
Americans to health care and education, and to protect their privacy 
from an overreaching government.
  I believe Judge Sotomayor understands that the courthouse doors must 
be as open to ordinary Americans as they are to government and big 
corporations.
  President Obama is to be commended for having consulted with Senators 
from both sides of the aisle. I was with him on some of the occasions 
that he did. I have had Senators come up to me, Republican Senators, 
and tell me they had never been called by a President of their own 
party, to say nothing of a Democratic President, to talk about a 
Supreme Court nominee. But President Obama did call and reach out.
  Now it is the Senate's duty to come to the fore. I believe all 
Senators, of both parties, will work with me to consider this 
nomination in a fair and timely manner.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BROWN. Madam President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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