[Congressional Record Volume 155, Number 95 (Tuesday, June 23, 2009)]
[Senate]
[Pages S6914-S6915]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. SCHUMER. Mr. President, several of my colleagues across the aisle 
have come to the floor to attack Judge Sotomayor's nomination to the 
Supreme Court. I must say, I think these attacks are entirely 
misplaced. I have always had a consistent standard for evaluating 
judicial nominees. I use it when voting for them. I use it when joining 
in, in the nomination process. I did under President Bush and continue 
to under President Obama. Those three standards are excellence, 
moderation, and diversity.
  I am confident Judge Sotomayor meets these criteria. Based on my 
review thus far of her lengthy and impressive record on both the 
district court and court of appeals, her impressive career in both 
public and private sectors, and her stellar academic credentials.
  I have also been deeply impressed with her personal story, a true 
story of an American dream. She pulled herself up from the projects in 
the Bronx to stand before this body as a nominee to the highest Court 
in the land. Her history is truly inspirational, a history of which we 
should all be extremely proud. It is a great American story. It is what 
the greatness of America is all about, as my friend from New Jersey 
said earlier.
  I think some of the comments I have heard from my Republican 
colleagues this morning have distorted Judge Sotomayor's distinguished 
record, so let's take a minute to consider what the real story is and 
how Judge Sotomayor's record reflects the highest ideals of judging.
  Judge Sotomayor's record reveals her to be both modest and moderate, 
dedicated to the rule of law and not outcome oriented.
  For example, Senator Sessions spent some of his time this morning 
criticizing one particular case, Hayden v. Pataki, about felon 
disenfranchisement--because Judge Sotomayor's dissent would have 
resulted in an outcome with which he did not agree. He neglected to 
mention that her opinion was based on the plain text of the statute 
before the court and he also left out some of the key, revealing 
comments she made in her dissent:

       No one disputes that States have the rights to 
     disenfranchise felons;

  No. 2:

       The duty of a judge is to follow the law, not question its 
     plain terms;

  And No. 3:

       I trust that Congress would prefer to make any needed 
     changes itself rather than have the courts do so for it.

  These are the kind of statements, in the very case my good friend 
from Alabama uses to criticize the judge, that we have heard from 
people on the other side of the aisle over and over as to what a judge 
should do: Not replace his or her own judgment for that of a 
legislature or that of the law.
  Judge Sotomayor was following text to a result, not the other way 
around. These quotes tell us a lot more about Judge Sotomayor's 
judicial philosophy and commitment to rule of law than simply looking 
at the outcome in any particular case. Even when we look at outcomes, 
the entirety of her record gives us a more accurate picture of her 
judicial philosophy than the outcome of any one case. She rejected 
discrimination claims in 81 percent of the cases she considered, and in 
those 78 cases rejecting discrimination claims she dissented from the 
panel she was on only twice.
  When my office looked at her record on immigration cases she sided 
with the immigrant in asylum cases only 17 percent of the time. That is 
average for the entire Second Circuit. This should put to rest any 
notion she is swayed by outcomes rather than by law.
  Obviously, she sympathizes with the immigrant experience, that has 
been clear. But she does not let those sympathies stand in the way of 
her judging what the law says and mandates. So she is clearly not a 
judicial activist, someone who reaches beyond the proper role of a 
judge to impose her personal preferences.
  I think it is about time to debunk the notion of judicial activism, 
as some are using. I think that judicial activism is starting to become 
code for many of my friends on the other side of the aisle for 
``decisions with outcomes with which I don't agree.'' When they say 
judicial activist, they are not looking at how close or far from the 
law. They are, rather, looking at: Well, I didn't agree with the 
ultimate decision.
  That is why I prefer to use the term ``modest'' in describing my 
ideal judge. It was a term that was used by Justice Roberts when he was 
before us.
  I will quote from the Federalist Papers as some of my colleagues have 
done. In Federalist No. 78, the primary source for justification for 
judicial review in the Constitution, Alexander Hamilton explains the 
role of a judge very simply: A judge must interpret the Constitution, 
interpret the laws, and when there is ``irreconcilable variance between 
the two, that which has the superior obligation and validity ought, of 
course, to be preferred.''
  An ``irreconcilable variance''--that imposes a high bar on any judge 
who is tempted to strike down a law or a practice or any decision by a 
legislature or

[[Page S6915]]

executive as unconstitutional. This is, by the way, exactly the 
standard Judge Sotomayor lived up to in Ricci, when she deferred to the 
elected local official in New Haven and to Federal title VII law and to 
firm Second Circuit precedent.
  It has always been my view that a commitment to modesty is key in a 
judge. A judge who is modest understands that any concept of doing 
justice must have as its touchstone the meaning that the authors of the 
text intended to give it.
  I also believe it is consistent with judicial modesty to acknowledge 
that our Constitution is written to endure. It does not live and 
breathe like a flesh-and-blood child does, who evolves through 
adolescence and adulthood to become unrecognizable.
  I don't believe in using those terms. Rather, the Constitution 
endures. It endures because the people whom it governs, the people who 
retain all of the many rights that are not listed in the document 
itself, believe that it continues to apply to them. The only reason it 
continues to apply to them is through guardianship of judges who are 
modest in reaching their conclusions. They understand that people have 
to live by the Court's interpretation and judgment. They understand 
that people want justice and that justice means predictability, 
adherence to text, and the willingness to avoid patently absurd 
results.
  I am looking forward to the confirmation hearing of Judge Sotomayor. 
She is a gifted lawyer, she is a respected and serious jurist, and her 
life experiences will only serve to enrich the views of the eight other 
justices, each of whom brings with him or her individual lessons, 
lessons taught by a hard-working grandfather in Pinpoint, GA; by an 
independent, studious-minded mother who died the day before her 
daughter graduated high school; by a hotel owner in Chicago, IL; or by 
a single Spanish-speaking mother who told her daughter that she could 
do anything through hard work and a good education.
  Let's be reasonable and realistic. These experiences do not turn a 
good judge into a bad one or who is not an impartial one or whatever my 
colleagues on the other side of the aisle are suggesting.
  To recognize the role of personal experience is simply to acknowledge 
that in the art and science of interpreting the Constitution and laws 
of our country we have to ask ourselves the following questions: Do we 
trust more the decisions of judges who, as I have said before, have ice 
water in their veins, who view their role as stripping themselves of 
their pasts and ruling in a vacuum, free of human experience and common 
sense, or do we trust more the decisions of judges who acknowledge and 
address their own life experiences even while striving always to be 
fair and within the law--as Judge Sotomayor herself has said?
  These are questions I look forward to discussing at Judge Sotomayor's 
upcoming hearing.

                          ____________________