[Congressional Record Volume 155, Number 87 (Thursday, June 11, 2009)]
[Senate]
[Pages S6528-S6530]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF SONIA SOTOMAYOR

  Mr. KAUFMAN. Mr. President, I rise today to discuss President Obama's 
nomination of Sonia Sotomayor to be an Associate Justice of the U.S. 
Supreme Court.
  Judge Sonia Sotomayor has impeccable legal credentials and a record 
of excellence and integrity. Equally important, she has the experience 
not only to make an excellent Justice but also to have a significant 
impact on a Court that today reflects too narrow a slice of America.
  Judge Sonia Sotomayor's deep appreciation for how the law affects the 
lives of ordinary Americans is born from her compelling personal 
background, as well as her time as an assistant district attorney, a 
commercial litigator, and later as a judge.
  Once confirmed, she will become the first Hispanic Justice, and just 
the third woman, to serve on the Nation's highest Court.
  What are we to make, then, of the assaults on the character and 
record of this seemingly exemplary nominee?
  Unfortunately, they seem to be a remnant of more than two decades of 
``culture wars'' over Supreme Court nominees.
  As someone who was present for the beginning of these wars, I have 
seen them develop into elaborate political dances, where both sides 
trade charges that are predictable and often baseless.
  Some of these attacks, such as charges of racism and bigotry, deeply 
undermine our national dialog.
  I am encouraged to note that my colleagues on the other side of the 
aisle have chosen not to join in these attacks, and many, in fact, have 
condemned them.
  Other attacks are equally predictable, from the general charge of 
``extremist'' to particular instances of political ``gotcha''--
wrenching statements out of context in order to paint a distorted 
picture of the nominee's record.
  At some level, partisan assaults are expected in the Supreme Court 
nomination process. But in the case of Judge Sotomayor, they are 
especially divorced from this body's good-faith exercise of its duty to 
advise and consent.
  It is one thing to attack a nominee's judicial philosophy when the 
President is trying to reshape the Court based on judicial philosophy, 
when the balance of the Court is at stake, or when the Senate and the 
President are deeply divided.
  None of those situations apply to this nomination.
  Judge Sotomayor is a well-qualified, mainstream jurist who does not 
threaten to tip the balance of the Court and

[[Page S6529]]

who is likely to be confirmed by a substantial majority.
  Although these partisan attacks take many forms, today I would like 
to address one persistent, unhelpful, and often baseless charge--that 
of so-called ``judicial activism.''
  What is especially unhelpful about calling someone a judicial 
activist is that many times it is an empty epithet, divorced from a 
real assessment of judicial temperament.
  As conservative jurist Frank Easterbrook puts it, the charge is 
empty:

       Everyone wants to appropriate and apply the word so that 
     his favored approach is sound and its opposite ``activist.'' 
     Then ``activism'' just means judges behaving badly--and each 
     person fills in a different definition of badly.

  In other words, the term activist, when applied to the decisions of a 
Supreme Court nominee, is generally nothing more than politically 
charged shorthand for decisions that the accuser disagrees with.
  That is not to say that the term ``judicial activism'' is necessarily 
without content. If we want to take it seriously, it might mean a 
failure to defer to the elected branches of government, it might mean 
disregard for long-established precedent, or it might mean deciding 
cases based on personal policy preferences rather than the law.
  I think it is fair to say that based on any of these definitions, the 
Supreme Court's current conservative majority has been highly activist.
  Let me give just a few examples.
  In United States v. Morrison, decided in 2000, the Rehnquist court 
struck down a key provision of the Violence Against Women Act. Rather 
than deferring to the considered judgment and extensive fact-finding of 
a democratically elected Congress, the Court went out of its way to 
impose its own judgment. This body held extensive hearings, made 
explicit findings, and voted 95 to 4 in favor of the bill. An activist 
Court chose to ignore all that and substitute its own, constricted view 
of the proper role of the national government for that shared by both 
Congress and the States.
  That same year, the Court decided Kimel v. Florida Board of Regents. 
The five-Justice majority concluded that States could not be sued by 
private citizens for age discrimination without their consent because 
of a general principle of sovereign immunity.
  This is another decision that was, simultaneously, ``conservative'' 
in terms of policy outcome and ``activist'' in terms of judging.
  It was conservative because it expanded States rights and contracted 
antidiscrimination rights.
  It was activist both because it struck down the considered judgment 
of Congress and because it was based not at all on the text of the 
Constitution but instead on the policy preferences of five Justices.
  In his dissent in Kimel, Justice Stevens said:

       The kind of judicial activism manifested in such cases 
     represents such a radical departure from the proper role of 
     this Court that it should be opposed whenever the opportunity 
     arises.

  With the addition of Chief Justice Roberts and Justice Alito, the 
conservative majority of the current Court has continued to be highly 
activist, even though the two newest Justices are not always candid 
about what they are doing.
  In fact, that charge has been leveled against Justices Alito and 
Roberts by no less an authority than Justice Scalia.
  In the campaign finance case, Federal Election Commission v. 
Wisconsin Right to Life, the Court struck down key provisions of the 
Bipartisan Campaign Reform Act, again substituting its view of good 
public policy for that of Congress.
  But this was more than a failure to defer to a democratically elected 
body. The Court effectively overruled controlling precedent--McConnell 
v. FEC--while pretending that it was doing no such thing. Justice 
Scalia called this ``faux judicial restraint.''
  In much the same vein, in a case called Hein v. Freedom from Religion 
Foundation, Justices Roberts and Alito were part of a majority that in 
effect overruled longstanding precedent on taxpayer standing, while 
again claiming that they were not doing so.
  Again, Justice Scalia called their bluff, attacking Justice Alito's 
opinion for falsely claiming to honor stare decisis.
  Of course, in both cases Justice Scalia wanted to overrule the cases 
in question expressly, but at least he was honest about his intentions.
  Then there's Parents Involved in Community Schools v. Seattle School 
District No. 1.
  In that case the Court rejected local community authority in the area 
of voluntary integration of public schools. Chief Justice Roberts' 
plurality opinion for the four-person conservative bloc gave the back 
of the hand to a long line of desegregation precedents, beginning with 
Brown v. Board of Education.
  Remember that this is the same Justice who, during his confirmation 
hearing, repeatedly professed his allegiance to stare decisis.
  If not for the opinion concurring in the judgment by Justice Kennedy, 
communities that want some modest measure of racial integration in 
their schools would be virtually powerless to act.
  Another recent case, this time in the anti-trust area, again shows 
that activism is in the eye of the beholder. In Leegin v. PSKS, the 
Court, with the addition of Justices Roberts and Alito, overruled 96 
years of unbroken precedent on vertical price-fixing.
  This case, plain and simple, represents the elevation of big 
manufacturers' interests over those of the consumer. And this Court 
rejected nearly a century of precedent because the majority of its 
members decided to embrace a particular economic theory different from 
the one that prevailed at the time the Sherman Antitrust Act became 
law.
  I want to mention one final example of conservative judicial 
activism, though there are plenty more I could cite.
  Pending before the Supreme Court right now is a case that involves a 
constitutional challenge to section 5 of the Voting Rights Act. As my 
colleagues in this body know, section 5 requires some States and 
political subdivisions, because of a history of racial discrimination, 
to ``pre-clear'' new voting rules with either the Justice Department or 
a Federal court.
  The claim made by the Texas voting district in the case seems to be 
that section 5 has outlived its usefulness.
  Before voting to reauthorize the Voting Rights Act in 2006, the 
Congress undertook an extensive and thorough review of the current 
nature and extent of discrimination against minority voters, and of the 
continued need for section 5.
  It held 21 hearings and accumulated 16,000 pages of testimony over 
the course of 10 months. And at the end of that process, Congress 
concluded that section 5 is still necessary, and passed the bill by a 
vote of 98-to-0 in the Senate and 390-to-33 in the House.
  Though the Court has not yet ruled in this case, the questioning from 
the bench during oral argument should give us concern, and does give us 
more evidence of conservative judicial activism.
  Some members of the conservative wing of the Court, including 
Justices Scalia and Roberts, suggested by their questions that they 
intend to disregard the entire Congressional Record.
  In discussing the provisions of the act that allow jurisdictions to 
``bail out'' of section 5 coverage, by showing that they no longer need 
to be covered, Justice Scalia argued that bailing out was impractical.
  When the attorney for the United States explained that Congress had 
considered and rejected that argument, Justice Scalia responded: ``The 
question is whether it is right, not whether Congress rejected it.'' So 
much for deference to legislative fact-finding.
  What makes this apparent substitution of a justice's assessment of 
the facts for that of Congress particularly troubling is the language 
of the Constitution itself.
  Remember that congressional authority for the Voting Rights Act comes 
from the 15th amendment, which not only guarantees the right of 
citizens of the United States to vote, but also says in section 2. 
``The Congress shall have power to enforce this article by appropriate 
legislation.''
  So here we have Congress operating at the height of its power, and 
members of the Supreme Court seeming to want to decide the case based 
on their own view of good policy.

[[Page S6530]]

  I think I have given enough examples to suggest that judicial 
activism is a two-way street.
  As my Judiciary Committee colleague from Oklahoma said during the 
confirmation hearing for Chief Justice Roberts, ``We each have our own 
definition of judicial activism.''
  So what does the ``activism'' charge add to the debate? I would say, 
very little.
  Let's take a look at the charge that Judge Sotomayor is a judicial 
activist.
  To support that claim, critics point to a single, much-publicized 
case involving New Haven firefighters. But this attack is not only 
disingenuous it is upside down.
  In that case, Judge Sotomayor was part of a 3-0 decision based on 
settled circuit court precedent.
  Her panel's decision supported the trial court judge's ruling and the 
decision of the local government regarding the best way to determine 
promotions for firefighters.
  Later, a majority of the entire court of appeals ruled to let the 
panel's decision stand.
  There is no doubt that the case addresses a difficult set of issues, 
and that the Supreme Court may come out the other way, though likely by 
a razor-thin margin.
  But Judge Sotomayor's decision to defer to the democratically 
accountable, local New Haven government and rule along with the 
majority of her court not to upset settled precedent cannot meet any 
definition of judicial activism. In fact, the complaint seems to be 
that she was not activist enough.
  The truth of the matter is that Judge Sotomayor, far from being an 
extremist, is very much in the mainstream.
  Other than the firefighters case, she has decided 88 cases involving 
claims of race discrimination while on the court of appeals. In 78 of 
those cases, Judge Sotomayor and the panel rejected the claim of 
discrimination.
  Of the 10 cases favoring claims of discrimination, 9 were unanimous, 
and of those 9, in 7 the unanimous panel included at least one 
Republican-appointed judge.
  I am not so naive as to believe we can eliminate entirely the 
partisan exploitation of the confirmation process.
  Maybe, though, we can put to rest the tired and un-illuminating 
charge of judicial activism.
  After all, that charge is rarely meant as a genuine claim about the 
exercise of judicial power. Instead, it is generally just an 
established part of an elaborate and tired script, a claim that we can 
expect no matter who the nominee may be.
  So let's focus on substance rather than empty code words. Let's 
debate the quality and merits of Judge Sotomayor's judicial philosophy 
and approach rather than hurl epithets or engage in demagoguery.
  Next month, the Judiciary Committee will hold a confirmation hearing, 
at which Senators from both sides of the aisle will be able to question 
Judge Sotomayor directly and publicly.
  Because Supreme Court Justices are not elected but rather appointed 
for life, the qualifications of every nominee should be carefully 
examined, not only by Senators but also by the public at large.
  This is the time when the public should be and will be paying close 
attention. We do not do ourselves, or the public, any favors if we rely 
on meaningless labels left over from the culture wars.
  Mr. President, I urge my colleagues to reconsider what the charge of 
``judicial activism'' brings to our debate.
  Judge Sotomayor deserves our careful consideration, but I hope that 
my colleagues here in the Senate will continue to abstain from the 
culture wars and name calling that too often have characterized our 
judicial nominations over recent years.

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