[Congressional Record Volume 155, Number 95 (Tuesday, June 23, 2009)]
[Senate]
[Pages S6902-S6903]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. CORNYN. I would like to use the next 10 minutes or so to address 
the nomination of Judge Sonia Sotomayor to be the next Associate 
Justice of the U.S. Supreme Court. I spoke last week a little bit on 
this nomination and the constitutional responsibility of the Senate to 
conduct a fair and, I believe, dignified hearing that will be held, 
now, on July 13, just a couple of short weeks from now. As I said then, 
and I will say it again, she deserves the opportunity to explain her 
judicial philosophy more clearly and to put her opinions and statements 
in proper context. I think every nominee deserves that. But I don't 
think it is appropriate for anyone--this Senator or any Senator--to 
prejudge or to preconfirm Judge Sotomayor or any judicial nominee.
  This is an important process, as I said, mandated by the same clause 
of the Constitution that confers upon the President the right to make a 
nomination, and it is the duty of the Senate to perform something 
called advice and consent, a constitutional duty of ours. It should be 
undertaken in a responsible, substantive, and serious way.
  Last Thursday I raised three issues I will reiterate briefly with 
regard to Judge Sotomayor's record. I would like to hear more from her 
on the scope of the second amendment to the Constitution and whether 
Americans can count on her to uphold one of the fundamental liberties 
enshrined in the Bill of Rights: the right to keep and bear arms. I 
would also like to hear more from Judge Sotomayor on the scope of the 
fifth amendment and whether the government can take private property 
from one person and give it to another person based on some elastic 
definition of public use. And, I want to hear more from her on her 
thoughts on the equal protection clause of the 14th amendment of the 
Constitution, which reads in part:

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

  Obviously, the third issue is going to be very much in the news, 
probably again as soon as next Monday, when the Supreme Court hands 
down its decision in the Ricci v. DiStefano case, a case in which Judge 
Sotomayor participated on the panel before her court of appeals. That 
case, as you may recall, involves firefighters who took a competitive, 
race-neutral examination for promotion to lieutenant or captain at the 
New Haven Fire Department.
  The bottom line is, the Supreme Court could decide the Ricci case in 
a matter of days, and the Court's decision, I believe, will tell us a 
great deal about whether Judge Sotomayor's philosophy in that regard, 
as far as the Equal Protection Clause is concerned, is within the 
judicial mainstream or well outside of it.
  The Ricci case is one way the American people can get a window into 
Judge Sotomayor's judicial philosophy. Another way is to look at some 
of her public comments, including speeches made on the duty and 
responsibility of judging.
  The remarks that have drawn the most attention are those in which 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.

  As I said before, and I will say it again, there is no problem--
certainly from me, and I do not believe any Senator--if she is just 
showing what I think is understandable pride in her heritage, as we all 
should as a nation of immigrants. But if the judge is talking about her 
judicial philosophy and suggesting that some people, some judges, 
because of their race, because of their ethnicity, because of their 
sex, actually make better decisions on legal disputes, then that is 
something Senators will certainly want to hear more about, this Senator 
included.
  Judge Sotomayor has made other public remarks that deserve more 
scrutiny than they have received so far. For example, in a speech in 
2002, Judge Sotomayor embraced the remarks of Judith Resnick and Martha 
Minow, who are two prominent law professors who have each proposed 
theories about judging that are far different than the way most 
Americans think about these issues. Most Americans think the people 
elect their representatives, Members of the House and Senate, to write

[[Page S6903]]

the laws, and the judges, rather than rewriting those laws, should 
interpret those laws in a fair and commonsense way, without imposing 
their own views on what the law should be.
  Most Americans think that when judges impose their own views on a 
case, when they substitute their own political preferences for those of 
the people and their elected representatives, then they undermine 
Democratic self-government and they become judicial activists.
  Professors Resnick and Minow have very different ideas than I think 
the mainstream American thinks on what a judge's job should be. Their 
views may not be controversial in the ivory tower of academia. 
Academics often encourage each other to engage in provocative theories 
so they can write about them and get published and get tenure.
  But the American people generally do not want judges to experiment 
with new legal theories when it comes to judging. They have a more 
commonsense view that judges should follow the law and not the other 
way around.
  So where does Judge Sotomayor stand on some of these academic legal 
theories, which I think are far out of the mainstream of American 
thought? I am not sure. But in her 2002 remarks she said this:

       I accept the proposition that as [Professor] Resnick 
     describes it, ``to judge is an exercise of power.''

  And:

       as . . . Professor Minow . . . states ``there is no 
     objective stance but only a series of perspectives--no 
     neutrality, no escape from choice in judging.''

  If I understand her quotes correctly, and those are some things I 
want to ask her about during the hearing, that is not the kind of thing 
I think most Americans would agree with. They do not want judges who 
believe that there is no such thing as neutrality in judging because 
neutrality is an essential component of fairness. If you know you are 
going to walk into a courtroom only to have a judge predisposed to 
deciding against you because of some legal theory, then that is not a 
fair hearing. And we want our judges to be neutral and as fair as 
possible when deciding legal disputes.
  The American people, I do not think, want judges who believe they 
have been endowed with some power to impose their views for what is 
otherwise the law. Americans believe in the separation of powers, the 
separation between Executive, legislative and judicial power and that 
judges should, by definition, show self-restraint and respect for our 
branches of government.
  I hope Judge Sotomayor will address these academic legal theories 
during her confirmation hearing. I hope she will clarify what she sees 
in the writings of Professors Resnick, Minow, and others whom she finds 
so admirable.
  I hope she will demonstrate that she will respect the Constitution 
more than those new-fangled legal theories and that she will respect 
the will of the people as represented by the laws passed by their 
elected representatives and not by life-tenured Federal judges who are 
not accountable to the people.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
  Mr. ALEXANDER. Mr. President, will the Chair please let me know when 
I have consumed 5 minutes.
  The ACTING PRESIDENT pro tempore. The Senator will be so notified.

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