[Congressional Record Volume 155, Number 92 (Thursday, June 18, 2009)]
[Senate]
[Pages S6768-S6769]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOMINATION OF JUDGE SOTOMAYOR

  Mr. CORNYN. Madam President, I would like to turn to another 
important topic; that is, the pending confirmation of Judge Sotomayor 
to be Associate Justice of the U.S. Supreme Court. Like many Senators, 
I have had the opportunity to visit with Judge Sotomayor in my office 
and, of course, congratulated her on this great honor. I further 
pledged to her that she would receive a fair and dignified confirmation 
proceeding. Unfortunately, that has not always been the case in the 
Senate, but I did tell her that as far as I was concerned, I would do 
everything I could to make sure she was treated with respect.
  Over the last few weeks, my colleagues on the Judiciary Committee and 
I have begun a thorough review of her record. Judge Sotomayor comes 
with one of the longest tenures of any judge nominated to the U.S. 
Supreme Court on the Federal bench--for about 17 years, so there is a 
rather lengthy record to review. In addition, she has given, as you 
might expect, many speeches and written law review articles and made 
other statements that deserve our attention. She has responded to the 
questionnaire sent by the Senate Judiciary Committee, and there are 
other followup questions which I anticipate she will be answering in 
the coming weeks.
  So our review is ongoing in anticipation of a confirmation hearing 
beginning July 13 in the Senate Judiciary Committee.
  But so far it is fair to say that there are a number of issues that 
have come up which I would like to talk about briefly that I anticipate 
she will have an opportunity to clarify or otherwise respond to and 
make her position clear for the American people and for the Senate as 
we perform our constitutional obligation under article II, section 2 of 
the Constitution.
  Most of the focus, during a judicial confirmation hearing, is on the 
President's authority under the Constitution to nominate individuals to 
serve as judges. But, in fact, the very same provision of the 
Constitution, the very same section of the Constitution, section 2 of 
article II, also imposes an obligation on the Senate. In other words, 
we have a constitutional duty ourselves in the Senate to provide advice 
and consent and then to vote on the nomination once voted out of the 
committee.
  The concerns I wish to raise at this point do not suggest that these 
are disqualifying, by any means, for Judge Sotomayor. I believe that, 
as I have indicated, she deserves the opportunity to explain her 
approach to these issues and particularly her judicial philosophy more 
clearly and to put the opinions and statements we have come across 
during our review in proper context.
  I believe it is not appropriate for any of us to prejudge or to 
preconfirm Judge Sotomayor. Our job as Senators is to ask how she would 
approach the duties of an Associate Justice of the United States 
Supreme Court. And the areas, as I said, I would like to focus on are 
numbered three.
  The first issue has to do with her approach to the second amendment. 
Of course, the second amendment to the U.S. Constitution, part of our 
Bill of Rights, incorporates the right to keep and bear arms.
  The second amendment says:

       A well regulated militia being necessary to the security of 
     a free State, the right of the People to keep and bear arms 
     shall not be infringed.

  The American people understand that the second amendment limits 
government and protects individual liberty. As Justice Joseph Story 
wrote nearly 200 years ago, the second amendment acts as a ``strong 
moral check against the usurpation and arbitrary power of rulers.''
  As the U.S. Supreme Court itself held last year in the District of 
Columbia v. Heller: ``There seems to us no doubt, on the basis of both 
text and history, that the Second Amendment conferred an individual 
right to keep and bear arms.''
  I agree strongly with the Supreme Court's reasoning in the Heller 
decision, and I think most Americans accept that as the law of the 
land. Judge Sotomayor, on the other hand, as a member of the Second 
Circuit Court of Appeals, was one of the judges that first was given an 
opportunity to apply that Supreme Court precedent in Heller to the 
States.
  She concluded in that decision that the right to keep and bear arms 
was not a fundamental right, and, therefore, was not enforceable 
against the States via the due process clause of the Fourteenth 
Amendment. Her decision in that case was troubling in light of the 
Heller decision, especially because her opinion included very little 
significant legal analysis.
  I would expect and hope Judge Sotomayor would elaborate on her 
thinking about this case, as well as the scope of the second amendment, 
during the course of the confirmation hearings. Americans need to know 
whether we can count on Judge Sotomayor to uphold all of the Bill of 
Rights, including the second amendment.
  The next subject that I think will bear some discussion during the 
confirmation hearings is Judge Sotomayor's views of private property 
rights, another fundamental right protected by our Bill of Rights, that 
is simply stated in the fifth amendment of the U.S. Constitution, the 
right not to have property taken for public use without just 
compensation.
  The fifth amendment provides an absolute guarantee of liberty against 
the power of eminent domain, by permitting government to seize private 
property only for public use.
  Our colleagues will recall the controversial decision of the U.S. 
Supreme Court in 2005 in Kelo v. City of New London, a decision where 
the Supreme Court greatly broadened the definition of public use and, 
thereby doing, greatly limited the property rights protected by the 
Bill of Rights for more than two centuries.
  The Court held that government can take property from one person and 
give it to another person if the government decided that by so doing it 
would promote economic development. The Kelo decision represents a vast 
expansion of government power of eminent domain. And that is why I 
introduced legislation that same year to limit that power and to 
restore the basic protections of our homes, small businesses, and other 
private property rights that the Founders intended in the fifth 
amendment to the Constitution.
  I believe the Kelo decision went too far. Yet by her decision in the 
case of Didden v. Village of Port Chester, it appears Judge Sotomayor 
did not feel like it went far enough. Judge Sotomayor was part of a 
panel that upheld an even more egregious overreach by government when 
it came to private property rights.
  In that case, two private property owners wanted to build a pharmacy 
on their land but in an area the government had essentially handed over 
to another private developer. The developer offered the owners a 
choice: Give me a piece of the action or we will proceed to condemn 
your property. The property owners, as you would think would be their 
right, refused. Yet the government, the local government, delivered on 
the developer's threat the very next day.
  I believe this decision represents an outrageous abuse of the power 
of eminent domain for a nonpublic purpose and a tremendous extension of 
an already flawed decision in the Kelo case by the U.S. Supreme Court. 
So I think it is only fair and right that we ask Judge Sotomayor how 
she can square that decision in the Didden case with the plain meaning 
of the fifth amendment to the Constitution and, indeed, even the Kelo 
case itself.

[[Page S6769]]

  The third area we need to understand Judge Sotomayor's approach to 
deciding cases involving employment discrimination. We need to 
understand how Judge Sotomayor interprets and applies the Equal 
Protection Clause of the fourteenth amendment, which reads in part:

       No State shall . . . deny to any person within its 
     jurisdiction the equal protection of the laws.

  For most Americans, the ``equal protection of the laws'' means just 
what it says. It means that government cannot treat you differently 
based on your race or your sex or your ethnicity. It simply means that 
government cannot legally practice discrimination, including reverse 
discrimination.
  But in a case recently argued to the U.S. Supreme Court called Ricci 
v. DiStefano, Judge Sotomayor participated in a Court of Appeal's 
decision which raises legitimate questions about her commitment to the 
provisions of equal protection of the laws in the Constitution. At 
least I think it raises questions that we need to ask her to respond to 
and to hopefully clarify her views on whether government can lawfully 
discriminate based on skin color.
  The facts of that case--the case involves firefighters in New Haven, 
CT. The fire department established a testing program to ensure a fair 
process in deciding who would be promoted to captain and lieutenant. 
The testing was rigorous, and it was not racially biased. It was 
racially neutral to give everyone a fair chance to succeed in taking 
the test.
  But the government, as it turned out, did not get the results it 
wanted. The mayor and five commissioners of New Haven felt that not 
enough African Americans had passed the test, so they threw out the 
test and refused to promote anyone.
  This was unfair to the firefighters who had qualified for promotion. 
Many of the firefighters were of Italian or Hispanic descent and felt 
they themselves had fallen victim to racial discrimination by the city 
government.
  In fact, one of the fire commissioners was quoted as saying the 
department should stop hiring people with too many vowels in their 
name.

  So the firefighters sued in Federal court. The case came before a 
three-judge panel, including Judge Sotomayor. Judge Sotomayor voted to 
dismiss the case even before these firefighters had a chance to go to 
trial. The panel of three judges that she participated in issued a one-
page opinion that was unpublished and did not even address these claims 
for the merits of the case or the constitutional issues brought by 
these petitioners.
  Madam President, I ask unanimous consent to speak for an additional 3 
minutes.
  The PRESIDING OFFICER (Mrs. Hagan.) Without objection, it is so 
ordered.
  Mr. CORNYN. The firefighters were disappointed in Judge Sotomayor's 
decision, and, indeed, some of her colleagues on the bench were shocked 
by the refusal to even acknowledge, much less address, the claims by 
these firefighters.
  One colleague, Judge Jose Cabranes, appointed by President Clinton, 
worked to get the case reconsidered by the entire Second Circuit. He 
wrote that the case might involve ``an unconstitutional racial quota or 
setaside.'' He said, ``At its core, this case presents a 
straightforward question: May a municipal employer disregard the 
results of a qualifying examination which was carefully constructed to 
ensure race-neutrality, on the ground that the results of the 
examination yielded too many qualified applicants of one race and not 
enough of another?''
  Judge Sotomayor apparently was not persuaded to answer that question. 
But thankfully the U.S. Supreme Court will. In a matter of days, we 
will know the U.S. Supreme Court's decision, which will help the 
American people understand whether Judge Sotomayor's philosophy is 
within the judicial mainframe or well outside it.
  There are other statements that the judge has made in the course of 
her long career, including one at Berkeley in 2001, which has received 
quite a bit of press coverage where she said:

       I would hope that a wise Latina woman with the richness of 
     her experiences would more often than not reach a better 
     conclusion than a white male who hasn't lived that life.

  President Obama has said she misspoke. But it is clear that is not 
the case. Congressional Quarterly reported that she used this language, 
or something very similar to it, in multiple speeches in 1994 to 2003.
  It would be one thing if Judge Sotomayor was simply celebrating her 
own journey as a successful Latino woman in our country. Every American 
would understand that, every American would embrace that, because her 
story is an American success story. And all of us can justly take pride 
that someone of a humble origin who worked hard and sacrificed has 
achieved so much in this country.
  In particular, the Hispanic community is justly proud of her 
achievements. She is, indeed, a role model for young people and is a 
symbol of success.
  All Americans can be proud that Hispanics are assuming more and more 
positions of authority in our society. Indeed, the Bush administration 
nominated more Hispanic Federal judges than any previous 
administration. Unfortunately, they have not always received the sort 
of fair and dignified consideration that Judge Sotomayor will.
  Miguel Estrada, who was nominated for the Second Circuit, was not 
treated respectfully during his confirmation proceedings. He was 
filibustered seven times, and denied an up-or-down vote on his 
confirmation.
  So I wish to make clear that there is no problem if Judge Sotomayor 
was simply showing pride in her heritage as we all should as a nation 
of immigrants. But if it suggests a judicial philosophy that says that 
because of sex or race or ethnicity, a judge is better qualified and 
more likely to reach correct legal decisions, I simply do not 
understand that contention, and I would like the opportunity to ask her 
about it.
  One of her fellow judges contrasted their views by saying:

     . . . 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.

  I think that is exactly right. So we need to know whether Judge 
Sotomayor embraces this notion of colorblind justice that most 
Americans expect from the highest Court in the land. I hope she will be 
given an opportunity--indeed she will be given an opportunity--to 
clarify her comments and let us know whether she intends to be a 
Supreme Court Justice for all of us or just for some of us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.

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