[Congressional Record Volume 155, Number 96 (Wednesday, June 24, 2009)]
[Senate]
[Pages S6977-S6985]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Sotomayor Nomination

  Ms. KLOBUCHAR. Mr. President, I will be joined on the floor today by 
some of my fellow women Senators to talk about the President's nominee 
for the Supreme Court. I will note that some of my colleagues on the 
other side of the aisle came to the floor yesterday to, as one news 
report described it, ``kick off their campaign against her.'' So we 
wanted to take this opportunity to get the facts out to correct any 
misconceptions and to set the record straight.
  The Supreme Court confirmation hearing for Judge Sotomayor will begin 
on July 13, but my consideration of her will not begin then. I began 
considering her the day she was announced because, as a member of the 
Judiciary Committee, I wish to learn as much as I can about President 
Obama's choice to fill one of the most important jobs in our country.
  Even though there are many questions that will be asked and many 
areas we will want to focus on, I wish to speak today about how Judge 
Sotomayor appears to me based on my initial review. After meeting with 
her and learning about her, I am very positive about her nomination. 
Judge Sotomayor knows the Constitution, she knows the law, but she also 
knows America.
  I know Americans have heard a lot about her background and long 
career as a judge. But it is very important for us to talk about what a 
solid nominee she is because we have to keep in mind that there have 
been accusations and misstatements, many made by people outside of this 
Chamber on TV and 
24/7 cable. There have been misstatements.
  It came to me a few weeks ago when I was in the airport in the Twin 
Cities in Minnesota. A guy came up to me on a tram in the airport and 
said: Hey, do you know how you are voting on that woman?
  I said that I want to listen to her and see how she answers some of 
the questions.
  He said: I am worried.
  I said: Why? She is actually pretty moderate.
  He said: She is always putting her emotions in front of the law.
  I said: Do you know that when she is on a panel with three judges--
which they often do on the circuit court where she sits now, and they 
have her and two other judges--95 percent of the time she comes to an 
agreement with the Republican-appointed judge on the panel? You must be 
thinking the same thing about those guys because you cannot just say 
that about her.
  That incident made me think we really need to set the record straight 
here about the facts, that we should be ambassadors of truth and get 
out the truth about her record and the kind of judge we are looking for 
on the U.S. Supreme Court. We need to make sure she gets the same 
civil, fair treatment other nominees have been given.
  Judge Sotomayor's story is a classic American story about what is 
possible in our country through hard work. She grew up, in her own 
words, in modest and challenging circumstances and worked hard for 
every single thing she got. Many of you know her story. Her dad died 
when she was 9 years old, and her mom supported her and her brother. 
Her mom was devoted to her children's education. In fact, her mom was 
so devoted to her and her brother's education that she actually saved 
every penny she could so that she could buy Encyclopedia Britannica for 
her kids. I remember when I was growing up that the Encyclopedia 
Britannica had a hallowed place in the hallway. I now show my daughter, 
who is 14, these encyclopedias from the 1960s, and she doesn't seem 
very interested in them. They meant a lot to our family and also to 
Judge Sotomayor.
  Judge Sotomayor graduated from Princeton summa cum laude and Phi Beta 
Kappa, and she was one of two people to win the highest award Princeton 
gives to undergraduates. She went on to Yale Law School, which launched 
her three-decades-long career in the law. So when commentators have 
questions about whether she is smart enough--you cannot make up Phi 
Beta Kappa. You cannot make up that you have these high awards. These 
are facts.
  Since graduating, the judge has had a varied and interesting legal 
career. She has worked as a private sector civil litigator, she has 
been a district court and an appellate court judge, and she taught law 
school.
  The one experience of hers that particularly resonates for me is 
that, immediately graduating from law school, she spent 5 years as a 
prosecutor at the Manhattan district attorney's office, which was one 
of the busiest and most well thought of prosecutor's offices in our 
country. At the time, it paid about half as much as a job in the 
private

[[Page S6978]]

sector, but she wanted the challenge and trial experience, she told me 
when we met, and she took the job as a prosecutor. Before I entered the 
Senate, I was a prosecutor. I managed an office of about 400 people in 
Minnesota, which was the biggest prosecutor's office in our State. So I 
was very interested in this experience we had in common.
  One of the things that I learned and that I quickly learned that she 
understood based on our discussions is that, as a prosecutor, the law 
is not just some dusty book in your basement. After you have interacted 
with victims of crime, after you have seen the damage crime can do to a 
community, the havoc it can wreak, after you have interacted with 
defendants who are going to prison and you have seen their families 
sitting in the courtroom, you know the law is not just an abstract 
subject; you see that the law has a real impact on real people.
  As a prosecutor, you don't just have to know the law, you have to 
know people, you have to know human nature. Sonia Sotomayor's former 
supervisor said that she was an imposing and commanding figure in the 
courtroom who would weave together a complex set of facts, enforce the 
law, and never lose sight of whom she was fighting for. Of course, she 
was fighting for the people in those neighborhoods, the victims of 
crime. Judge Sotomayor's experience as a prosecutor tells me she meets 
one of my criteria for a Supreme Court nominee: She is someone who 
deeply appreciates the power and impact that laws have and that the 
criminal justice system has on real people's lives. From her first day 
at that Manhattan district attorney's office, Judge Sotomayor learned 
that the law is not just an abstraction.
  In addition to her work as a prosecutor, I have also learned a lot 
about Judge Sotomayor from her long record as a judge. She has been a 
judge for 17 years--11 years as an appellate judge and 6 years as a 
trial judge. President George H.W. Bush--the first President Bush--gave 
her the first job she had as a Federal judge. She was nominated by a 
Republican President. The job was to be a district judge in the 
Southern District of New York. Her nomination to the Southern District 
was enthusiastically supported by both New York Senators, Democratic 
Senator Daniel Patrick Moynihan and Republican Senator Alfonse D'Amato.
  If you watch TV or read newspapers or blogs, you know that Judge 
Sotomayor has been called some names. It always happens in these 
Supreme Court nominations--the nominees are called names by talking 
heads on TV and on the radio. In most cases, these commentators may 
have read a case or two of hers or, even worse, a speech and took a 
sentence or so out of context, and they have decided they are entitled 
to make a sweeping judgment about her judicial fitness based on a few 
words taken out of context.
  I think just about everything in a nominee's professional record is 
fair game to consider. After all, we are obligated to determine whether 
to confirm someone to an incredibly important position with lifetime 
tenure. That is a constitutional duty I take very seriously. But that 
said, when people get upset about a few items and a few speeches a 
judge has given, I have to wonder, do a few statements someone made in 
public, for which they said they could have used different words, do 
those trump 17 years of modest, reasoned, careful judicial 
decisionmaking? I don't think so.
  If we want to know what kind of a Justice she will be, isn't our best 
evidence to look at the type of judge she has already been? Here are 
the facts. As a trial judge, Sonia Sotomayor presided over roughly 450 
cases on the Second Circuit and participated in more than 3,000 panel 
decisions. She has authored more than 200 appellate opinions. In cases 
where she and at least one Republican-appointed judge sat on a three-
judge panel, she and the Republican-appointed judge agreed 95 percent 
of the time, as I mentioned. The Supreme Court has only reviewed five 
cases where she authored the decision and affirmed the decision below 
in two of them. The vast majority of her cases have not been in any way 
overturned or reversed by a higher court.
  It is worth noting that this nominee, if confirmed, would bring more 
Federal judicial experience to the Supreme Court than any Justice in 
100 years.
  With that, I see one of my colleagues, the Senator from New 
Hampshire. We will have a number of women Senators here today. I will 
come back and finish my remarks sometime in the next half hour. I think 
it is very important that Senator Shaheen, the Senator from New 
Hampshire, be able to say a few words about the nominee.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Burris). The Senator from New Hampshire is 
recognized.
  Mrs. SHAHEEN. Mr. President, I am delighted to be here this afternoon 
to join my friend and colleague from the State of Minnesota, Senator 
Klobuchar, in supporting the nomination of Judge Sonia Sotomayor to be 
a Justice of the Supreme Court.
  Everyone in New Hampshire was very proud 19 years ago when former 
President George Bush nominated New Hampshire's own David Souter as an 
Associate Justice of the Supreme Court. Every action Justice Souter has 
taken since he began service to our Nation's highest Court has only 
reinforced that pride. So when Justice Souter announced in early May 
that he intended to retire at the end of his term and return home to 
New Hampshire, I took particular interest in whom President Obama would 
select to fill David Souter's seat.
  I believe the President has made a thoughtful and outstanding choice 
in nominating Judge Sonia Sotomayor.
  Judge Sotomayor has had a distinguished career as a Federal judge. As 
has been widely noted, if confirmed, she would bring more Federal 
judicial experience to the Supreme Court than any Justice in 100 years. 
Today, David Souter is the only member of the Supreme Court with prior 
experience as a trial court judge. Sonia Sotomayor, too, would be the 
only Justice with experience as a trial court judge. I happen to agree 
with Senator Klobuchar. I think it is important that at least one of 
the nine Supreme Court Justices have that experience. It is trial 
judges, after all, who day-in and day-out must apply the legal 
principles enunciated in Supreme Court opinions.
  Judge Sotomayor also served 5 years as a local prosecutor and 
practiced law for 7 years as a trial attorney with a law firm. Judge 
Sotomayor, because of her experience, will be ever mindful of the need 
to provide those in the courtroom with clear and practical decisions. 
More important, she will understand how Supreme Court opinions affect 
real human beings.
  As a trial judge, every day Judge Sotomayor directly faced innocent 
victims of crime, vicious perpetrators of crime, and occasionally the 
wrongfully accused. She directly faced injured parties seeking civil 
redress and civil defendants who may have made honest mistakes. She had 
to answer: What is the right verdict? What is the right length of 
incarceration? What is the right level of damages? These are not easy 
decisions. I know that because my husband was a State trial court judge 
for 16 years. Trial court judges must be able to live with the justice 
they mete out. To do it well, it takes more than an understanding of 
the law, it takes an understanding of people. Judge Sotomayor has a 
great understanding of both.
  I had the pleasure of meeting with Sonia Sotomayor the day she 
fractured her ankle. I said to her as she came into my office: Boy, you 
are tough. She said: I grew up in the Bronx; we had to be tough. She 
handled that painful injury with grace and humor. She has a first-rate 
temperament and also a first-rate intellect. After growing up in a 
public housing project in the South Bronx, she excelled at both 
Princeton and Yale Law School.
  I believe Judge Sonia Sotomayor is an excellent choice to replace 
David Souter as a Supreme Court Justice. She deserves a fair and a 
thorough hearing without delay. I look forward to that hearing.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank my colleague, Senator Shaheen, 
for her remarks and for her reminiscence of meeting with the judge and 
once again the judge showing how she perseveres in the face of 
adversity.
  I wish to talk a little bit more--I was ending my last comments 
talking about how, in fact, this nominee would bring more Federal 
judicial experience to the Supreme Court than any Justice

[[Page S6979]]

in 100 years. I had earlier noted my exchange with someone in an 
airport, where he wondered if she was worthy of this, if she was able 
to apply the facts, apply the law.
  Clearly, when you look at this experience she brings and you compare 
it to any of these other nominees on the Supreme Court, she stands out. 
She stands out not only because of her unique background, as she 
overcame obstacles to get here, but she stands out as to her 
experience, all those years as a prosecutor, all those years as a 
Federal judge. That makes a difference.
  I wish to address one other point that has been made about Judge 
Sonia Sotomayor in her capacity as a judge. It is something Senator 
Shaheen mentioned, this temperament issue. There have been some stories 
and comments, mostly anonymous, I note, that question Judge Sotomayor's 
judicial temperament. According to one news story about this topic, 
Judge Sotomayor developed a reputation for asking tough questions at 
oral arguments and for being sometimes brusque and curt with lawyers 
who were not prepared to answer them. So she was a little curt, one 
anonymous source said. Where I come from, asking tough questions and 
having very little patience for unprepared lawyers is the very 
definition of being a judge. I cannot tell you how many times I have 
seen judges get very impatient with lawyers who were not prepared and 
who did not know the answer to a question. As a lawyer, you owe it to 
the bench and to your clients to be as well prepared as you possibly 
can be.
  As Nina Totenberg said on National Public Radio, if Sonia Sotomayor 
sometimes dominates oral arguments at her court, if she is feisty, even 
pushy, then she would fit right in on the U.S. Supreme Court.
  I would add this to that comment. Surely, we have come to a time in 
this country where we can confirm as many gruff, to-the-point female 
judges as we have confirmed gruff, to-the-point male judges. Think how 
far we have come with this nominee.
  When Sandra Day O'Connor graduated from law school 50-plus years ago, 
the only offer she received from a law firm was for a position as a 
legal secretary. She had this great background, a very impressive 
background, and yet the only offer she received was as a legal 
secretary.
  Judge Ginsburg, who now sits on the Court, faced similar obstacles. 
When she entered Harvard in the 1950s, she was only 1 of 9 women in a 
class of more than 500. One professor actually asked her to justify 
taking a place that would have gone to a man in that class in Harvard. 
Mr. President, 9 women, 500 spots, and someone actually asked her to 
justify the fact that she was there. I suppose she could justify it 
now, saying she is now on the U.S. Supreme Court. Later Justice 
Ginsburg was passed over for a prestigious clerkship despite her 
impressive credentials.
  Looking at Judge Sotomayor's long record as a lawyer, a prosecutor, 
and a judge, you can see we have come a long way.
  She was confirmed by this Senate for the district court. She was 
nominated at that point by the first President Bush.
  She was confirmed by this Senate for the Second Circuit, and she now 
faces a confirmation hearing before our Judiciary Committee and 
confirmation, again, for a position with the U.S. Supreme Court.
  I will tell you this, after learning about Judge Sotomayor, her 
background, her legal career, her judicial record, similar to so many 
of my colleagues, I am very impressed. To use President Obama's words, 
I hope Judge Sotomayor will bring to her nomination hearing and to the 
Supreme Court, if she is confirmed, not only the knowledge and the 
experience acquired over the course of a brilliant legal career but the 
wisdom accumulated from an inspiring life's journey.
  Actually today, Justice O'Connor was on the ``Today Show.'' She was 
asked about her work on the Court and what it was like. She was 
actually asked about Judge Sotomayor. She was asked: When you retired, 
you let it be known you would like a woman to replace you and you were 
sort of disappointed when a woman didn't replace you. So what is your 
reaction to Judge Sotomayor's nomination?
  Justice O'Connor said: Of course, I am pleased that we will have 
another woman on the Court. I do think it is important not to just have 
one. Our nearest neighbor, Canada, also has a court of nine members and 
in Canada there is a woman chief justice and there are four women all 
told on the Canadian court.
  Then she was asked: Do you think there is a right number of women who 
should be on the Court?
  Justice O'Connor, this morning, said: No, of course not.
  But then she pointed out: But about half of law graduates today are 
women, and we have a tremendous number of qualified women in the 
country who are serving as lawyers and they ought to be represented on 
the Court.
  She was also asked later in the interview about opponents of Judge 
Sotomayor who have brought up this term ``activist judge.''
  She was asked: I know that is a term you have railed against in the 
past. What is it about the term that you object to?
  She answered: I don't think the public understands what is meant by 
it. It is thrown around by many in the political field, and I think 
that probably for most users of the term, they are distinguishing 
between the role of a legislator and a judge, and they say a judge 
should not legislate. The problem, of course, Justice O'Connor says, is 
at the appellate level, the Supreme Court is at the top of the 
appellate level. Rulings of the Court do become binding law. So it is a 
little hard to talk in terms of who is an activist.
  I, again, ask people to look at Judge Sotomayor's opinions. When I 
talked with her about this, she talked about how she uses a set 
formula, laying out the facts, laying out the law, showing how the law 
applies to the facts, and then reaching a decision.
  We can also look at her record where, in fact, when she was on a 
three-judge panel with two other judges, when you look at her record of 
what she agreed with judges who had been appointed by a Republican 
President, 95 percent of the time they reached the same decision. So 
unless you believe those Republican-appointed judges are somehow 
activist judges, then I guess you would say she is an activist judge. 
But I think when you look at her whole record, you see someone who is 
moderate, sometimes coming down on one side and sometimes coming down 
on another.
  I can tell you, as a former prosecutor, I did not always just look at 
whether I agreed with the judge if I was trying to figure out if 
someone would be a good judge. I would look at whether they applied the 
laws to the facts, whether they were fair. Sometimes our prosecutor's 
office would not agree with a judge's decision. We would argue 
vehemently for a different decision. In the end, when we evaluated 
these judges, when we decided whether we thought they were a fair 
person to have on a case, we looked at that whole experience, we looked 
at that whole experience to make a decision about whether this was a 
judge who could be fair.
  That is what I think when you look at her record--and I am looking 
very much to her hearing, where we are going to explore a number of 
these cases--again, colleagues on one side of the aisle will agree with 
one case or disagree with another, and the other side of the aisle 
would have made a decision one way or the other.
  You have to look at her record as a whole. When you look at her 
record, you will see someone of experience, someone thoughtful, someone 
who makes a decision based on the facts and based on the law.
  I am very much looking forward to these hearings. I know that some of 
my colleagues are coming to the Chamber as we speak. I am looking 
forward to their arrival as we become, as I said, ambassadors of truth 
to get these facts out as so many things have been bandied about in 
names and other things that get into people's heads. I think it 
important for all those watching C-SPAN right now and for all of those 
who are in the galleries today, that people take these facts away with 
them--the facts of her experience, that in over 100 years of judicial 
experience, when you look back 100 years, she has more experience on 
the bench than any of the Justices who were nominated. You have to go 
back 100 years to find someone with that much experience. You look at 
that work she has done as

[[Page S6980]]

a prosecutor, you look at the work she has done throughout her whole 
life, where she basically came from nothing, worked her way up, got 
into a good college, got into a good law school, did it on her own, 
with maybe a little help from her mom who bought the ``Encyclopedia 
Britannica.''
  As I said at the beginning, this is a nominee who not only 
understands the law, understands the Constitution but also understands 
America.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. KLOBUCHAR. Mr. President, I am pleased that my colleague from 
Louisiana, Senator Landrieu, who has spoken many times in the past 
about the importance of fair judges and strong judges, is here today to 
discuss this nominee.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I thank my colleague for her passionate 
remarks about this particular nominee. I am happy to join many of my 
colleagues in supporting a woman I consider to be an extraordinarily 
accomplished woman, and I commend President Obama for his selection.
  As the Senate Judiciary Committee prepares for its confirmation 
hearing, I wished to come to the floor to express my strong support for 
this nominee. As we all know, the Supreme Court serves as the highest 
tribunal in the Nation. As the final arbitrator of our laws, the 
Supreme Court Justices are charged with ensuring the American people 
achieve the promise of equal justice under our law and serving as 
interpreters of our Constitution. It is a very important charge.
  It is our duty as Senators to ensure that the members of this High 
Court, which we are asked to confirm, serve as impartial, fairminded 
Justices who apply our laws, not merely their ideology. The American 
people deserve no less.
  A number of my colleagues have expressed concerns regarding this 
nominee. Those are not concerns I share. Having reviewed her resume, 
her academic credentials, having reviewed her time on the bench on the 
Second Circuit, as well as in a trial capacity, she has an expansive 
judicial record, and I think that provides evidence of the kind of 
Justice she will be on the Supreme Court.
  She has been described as a ``fearless and effective prosecutor.'' 
She has served for 6 years as a trial judge in New York, as I said, on 
the Federal district court, and 11 years on the circuit court of 
appeals. So she has been in the courtroom on both sides of the bench 
representing a variety of clients, and she has written extensively. I 
think that record reflects the kind of balance, fairminded, 
intellectual rigor we are looking for.
  Talking about Democratic and Republican Parties, she has been 
appointed by both a Democratic administration and a Republican 
administration. So clearly there were some things that were seen in her 
and her service by President George Bush as well as President Bill 
Clinton.

  She has participated in over 3,000 decisions. She has written over 
400 signed opinions on the Second Circuit. If confirmed, Judge 
Sotomayor would bring more Federal judicial experience to the Supreme 
Court than any Justice in 100 years. That is a very strong and powerful 
statement, and I think a compelling statement, to the Members of this 
body.
  I had, as many of us have, the opportunity to meet with Judge 
Sotomayor in my office earlier this month. In addition to having an 
impressive professional resume, her personal journey as a young woman 
from a struggling, very middle-class background from the Bronx also 
captured my attention. She came up the hard way, with a lot of hard 
knocks but with a loving and supportive family around her to lead her 
and guide her. Tutors and teachers saw in this young girl a tremendous 
amount of promise and potential, and she has most certainly lived up to 
the promise her mother and grandmother and others saw in her at a young 
age.
  I believe she is the kind of person who will bring not only 
extraordinary intellect and character and credibility but a tremendous 
breadth of experience that will be very helpful in dealing with the 
issues the Court has before it today and will in the near future. She 
has not only been a champion in many ways, but her life has been an 
inspiration to all Americans, proving that with determination and hard 
work anything is possible.
  Finally, it goes without saying that she is a historic choice that 
will bring a wealth of experience and added diversity to the Nation's 
highest Court. When confirmed, she will become only the third woman to 
serve on the Nation's highest court and the first Hispanic Justice in 
the history of the United States. This is truly a remarkable turning 
point. I wish she could receive, because of her outstanding resume--not 
just because of her gender and background and culture. I believe her 
resume should garner the support of a broad range of Members of this 
body. Hopefully, that is the way it will come out in the final vote. 
She most certainly, from my review, deserves our support, and I look 
forward to doing what I can to process her nomination as it is debated 
by the full Senate.
  I thank my colleague from Minnesota, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. I thank my colleague Senator Landrieu for her very 
kind and thoughtful remarks about the nominee.
  We are now joined by the Senator from Missouri, Senator McCaskill, 
who as a former prosecutor I am sure will shed some light on the 
subject.
  I also thank the Senator from Kansas for allowing us to take an 
additional 5 minutes.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, I thank my friend, the Senator from 
Minnesota, for helping to get us organized this afternoon to spend a 
little time talking about an outstanding Federal judge.
  I also thank my colleague from Kansas for giving us a few minutes to 
make these remarks.
  I will confess that I wasn't familiar with Judge Sotomayor before she 
was nominated. I started looking at her resume, and there are so many 
things in her resume that are, frankly, amazing that you can get 
distracted by--where she went to school, where she got her law degree, 
and the fact that she has been at several levels of the Federal bench; 
and also, of course, that she had a very big job with complex 
litigation in a law firm. But the part of her resume that spoke to me 
was her time as an assistant district attorney in New York.
  I don't know that most Americans truly understand the difference 
between a State prosecuting attorney and a Federal prosecuting 
attorney. Those of us who have spent time in the State courtrooms like 
to explain that we are the ones who answer the 911 calls. When you are 
a State prosecutor, you don't get to pick which cases you try. You try 
all of the cases. When you are a State prosecutor, you don't have the 
luxury of a large investigative staff or maybe a very light caseload. 
It would be unheard of for a Federal prosecutor to have a caseload of 
100 felonies at any given time, but that is the caseload Judge 
Sotomayor handled as an assistant district attorney during her time in 
the District Attorney's Office in New York.
  When she came to the prosecutor's office, ironically it was almost 
exactly the same year I came to the prosecutor's office as a young 
woman out of law school. I was in Kansas City; she was in New York. I 
know what the environment is in these prosecutors' offices. There are a 
lot of aggressive type A personalities, and it is very difficult to 
begin to handle serious felony cases because everybody wants to handle 
the serious felony cases. In only 6 months, Judge Sotomayor was 
promoted to handle serious felony cases in the courtroom. She 
prosecuted every type of crime imaginable, including the most serious 
crimes that are committed in our country.
  She had many famous cases. One was the Tarzan murderer, where she 
joined

[[Page S6981]]

law enforcement officers in scouring dangerous drug houses for evidence 
and witnesses. After a month of trial, she convicted Richard Maddicks 
on three different murders and he was sentenced to 67 years to life in 
prison.
  A New York detective had a hard time finding a New York prosecutor 
willing to take his child pornography case. Judge Sotomayor stepped up, 
winning convictions against two men for distributing films depicting 
children engaged in pornographic activities. These were the first child 
pornography convictions after the Supreme Court had upheld New York's 
law that barred the sale of sexually explicit films using children.
  After her time as a prosecutor, she eventually became a trial judge. 
A trial judge is an unusual kind of experience for a Supreme Court 
Justice. But keep in mind what the Supreme Court Justices do: They look 
at the record of the trial. They are trying to pass on matters of law 
that emanate from the courtroom. What a wonderful nominee we have, one 
who has not only stood at the bar as a prosecutor but also sat on the 
bench ruling on matters of evidence, ruling on matters of law. I am 
proud of the fact that she has this experience. If she is confirmed, or 
when she is confirmed, she will be the only Supreme Court Justice with 
that trial judge experience, because she is replacing the only Supreme 
Court Justice with that experience--Judge Souter.
  This is a meat-and-potatoes moderate judge. This is a judge who has 
agreed with Republicans on her panels 95 percent of the time. This is a 
judge who has the kind of experience that will allow her to make 
knowing and wise decisions on the most important matters that come in 
front of our courts in this country.
  We have a ``gotcha'' mentality around here. We all engage in it at 
one time or another. It is gotcha, gotcha, gotcha. It is an outgrowth 
of the political system of this grand and glorious democracy we all 
participate in. It is not my favorite part, but it is real. Justice 
Sotomayor will become a Supreme Court Justice, after having gone 
through a gotcha process. We are going to hear a lot of gotchas over 
the coming weeks. But at the end of the day, this is a smart, proud 
woman who has fought her way through a system against tremendous odds 
to show that she has integrity, grit, intellect, and the ability to 
pass judgment in the most difficult intellectual challenges that face a 
Supreme Court Justice.
  I am proud to support her nomination, and I look forward to the day--
and I am confident that the day will come--she will take her place on 
the highest Court in the land.
  Mr. President, I again thank the Senator from Kansas for his 
indulgence, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, again I thank the Senator from Kansas, 
and also Senator McCaskill, Senator Shaheen, and Senator Landrieu, who 
spoke today. I also know that Senators Gillibrand, Feinstein, Mikulski, 
Boxer, and Murray will be speaking, or may have already and will be in 
the next few weeks on this nominee, as will many of my colleagues.
  I appreciate this time, Mr. President. We are very excited about this 
upcoming hearing, and we are glad to be here as ambassadors for the 
truth.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I believe under a previous agreement I 
have time allotted at the present time; is that correct, if I could 
inquire of the Chair.
  The PRESIDING OFFICER. The Senator may be recognized under cloture.
  Mr. BROWNBACK. Mr. President, I rise today to discuss the nomination 
of Judge Sonia Sotomayor to the U.S. Supreme Court. I had the 
opportunity to meet with Judge Sotomayor 2 weeks ago. I was in the 
Senate when she was previously before this body on the Second Circuit 
Court nomination, and I appreciated the chance to meet with her 
recently.
  I have also appreciated the chance to review her record in depth and 
also to hear my colleagues speak about Judge Sotomayor, because it 
represents the distinction that I think is very important to note here. 
My colleague from Missouri just spoke, and she was talking about the 
wonderful qualifications of Judge Sotomayor and the candidate's 
background and experiences that she brings. She has a very interesting, 
a very American story to tell of her background. It is a compelling 
story. She is the daughter of immigrants who overcame diversity to go 
to two of the Nation's best universities. I admire that, and I admire 
the things they pointed out in their presentation of her background and 
what she has done. I think those are all admirable characteristics.
  But what we are doing here is picking somebody to be on the U.S. 
Supreme Court, and what their judicial philosophy is that they will 
take with them. It isn't all just about the background or the 
experience. It is about the judicial philosophy that comes forward, and 
that is what my colleagues didn't discuss. So that is what I want to 
discuss here this afternoon.
  I have had the chance to review Judge Sotomayor's records. In 1998, 
the Senate voted to promote Judge Sotomayor to the appellate court. I 
voted against her at that time because I was concerned not about her 
background, not about her qualifications, but I was concerned that she 
embraced an activist judicial philosophy. That is what I want to talk 
about today, because that is what we are deciding when we put somebody 
on the Supreme Court--what is the judicial philosophy this person 
carries with them.
  It is not necessarily about their own background or their 
qualifications. Those are important to review, but at the heart is what 
is the judicial philosophy. Is this a person who supports an activist 
judiciary getting into many areas in which the American public doesn't 
think they should go into or is it a person who believes in more of a 
strict constructionist view, that the Court is there to be an umpire 
and not an active player in policy development? Are they an umpire who 
calls the balls and strikes, and not how do we do law; how do we 
rewrite what is here?
  I think the Court loses its lustre when it gets into becoming an 
active player in policy development instead of being a strict umpire of 
policy development. Unfortunately, what I saw in Judge Sotomayor in 
1998 was somebody who embraced an activist judicial philosophy. During 
a 1996 speech at Suffolk University Law School 2 years before the 
Senate voted on her nomination to the Second Circuit, Judge Sotomayor 
said:

       The law that lawyers practice and judges declare is not a 
     definitive capital ``L'' law that many would like to think 
     exists.

  Translated, that is to say the law is not set. It is mobile, as moved 
by judges, not by legislatures. This is not the rule of law. This is 
the rule from the bench. This is the rule of man, and it makes our law 
unpredictable. That is not good for a society like ours which is based 
on the rule of law, not the rule by a person.
  Any nominee to the Federal bench, and especially to the U.S. Supreme 
Court, must have a proper understanding and respect for the role of the 
Court--for the role they would assume. The Court must faithfully hold 
to the text of the Constitution and the intent of the Founders, not try 
to rewrite it based on ever changing cultural views. This is at the 
heart of what a judge does.
  Democracy, I believe, is wounded when Justices on the high Court, who 
are unelected, invent constitutional rights and alter the balance of 
governmental powers in ways that find no support in the text, the 
structure, or the history of the Constitution. Unfortunately, in recent 
years, the courts have assumed a more aggressive political role. In 
many cases, the courts have allowed the left in this country to achieve 
through court mandates what it cannot persuade the people to enact 
through the legislative process. The Constitution contemplates that the 
Federal courts will exercise limited jurisdiction. They should neither 
write nor execute the law.

  This is very basic in our law and goes back to the very Founders. As 
Chief Justice John Marshall said in his famous 1803 case, Marbury v. 
Madison, that every law student has studied at length, the role of the 
court is simple. It is to ``say what the law is.'' It is not to write 
the law. It is not to rewrite the law. It is to ``say what the law 
is,'' what did the legislature pass, when it needs interpretation. It 
is not about

[[Page S6982]]

writing it. It is not about the mobility, that the law isn't with a 
capital ``l,'' and we can move it here based on these factors that we 
think are different with the cultural environment and we may have to 
move it over here in 10 years because the environment has changed and 
the law changes with it.
  If the law changes, it is by legislatures. It is not by the court. 
That is why Marbury v. Madison said the law is to ``say what the law 
is,'' not to rewrite it.
  In Federalist 78, Alexander Hamilton wrote this--law students study 
this as well:

       Whoever attentively considers the different departments of 
     power must perceive that, in a government in which they are 
     separated from each other, the judiciary, from the nature of 
     its functions, will always be the least dangerous to the 
     political rights of the Constitution; because it will be 
     least in a capacity to annoy or injure them. The executive 
     not only dispenses the honors but holds the sword of the 
     community. The legislature not only commands the purse, but 
     prescribes the rules by which the duties and rights of every 
     citizen are to be regulated. The judiciary, on the contrary, 
     has no influence over either the sword or the purse; no 
     direction either of the strength or of the wealth of the 
     society, and can take no active resolution whatsoever. It may 
     truly be said to have neither FORCE nor WILL but merely 
     judgment; and must ultimately depend upon the aid of the 
     executive arm even for the efficacy of its judgments.

  The court is to have judgment. A judge is to have judgment, not write 
the law.
  In Hamilton's view, judges could be trusted with power because they 
would not resolve divisive social issues--that is for the legislature 
to do--short-circuit the political process, or invent rights which have 
no basis in the text of the Constitution.
  I have long believed the judicial branch preserves its legitimacy 
with the public and has its strength with the public through refraining 
from action on political questions. This concept was perhaps best 
expressed by Justice Felix Frankfurter, a steadfast Democrat appointed 
by President Franklin Delano Roosevelt. Justice Frankfurter said this:

       Courts are not representative bodies. They are not designed 
     to be a good reflex of a democratic society. Their judgment 
     is best informed, and therefore most dependable, within 
     narrow limits. Their essential quality is detachment, founded 
     on independence. History teaches that the independence of the 
     judiciary is jeopardized when courts become embroiled in the 
     passions of the day and assume primary responsibility in 
     choosing between competing political, economic and social 
     pressures. Primary responsibility for adjusting the interests 
     which compete in the situation before us of necessity belongs 
     to the Congress.

  That is to quote Justice Frankfurter.
  I recall a private meeting I had with then-Judge Roberts, before 
assuming the position of Chief Justice, when he had been nominated to 
be Chief Justice--a wonderful Justice on the Supreme Court who then-
Senator Obama voted against. Senator Obama voted against the 
confirmation of John Roberts, voted against the confirmation of Samuel 
Alito to the Supreme Court based, I believe, primarily on judicial 
philosophy because they believed in strict constructionism; that a 
court was to be a court and not a legislative body. Then-Senator Obama 
voted against both John Roberts and against Samuel Alito.
  In my meeting with Judge Roberts, he talked about baseball and about 
the courts and his analogy to baseball. He gave a great analogy, I 
thought, when he said:

       It is a bad thing when the umpire is the most watched 
     person on the field.

  Imagine that, watching a baseball game and the thing you are watching 
the most is the umpire because the umpire is both umpire and a player. 
How confusing, how difficult, and what a wrong way to have a game. He, 
of course, Judge Roberts, was alluding to the current situation in 
American governance where the legislature can pass a law, the executive 
sign it, but everybody waits, holding their breath to see what the 
courts will do with it.
  Unfortunately, Judge Sotomayor seems to me far too interested in 
being both an umpire and active player. Prior to becoming a Federal 
judge, Sonia Sotomayor spent more than a decade on the board of 
directors of the Puerto Rican Legal Defense and Education Fund. A 
September 25, 1992, article in the New York Times referred to Judge 
Sotomayor as ``a top policy maker'' on the group's board.
  In 1998, the group brought suit against the New York City Police 
Department, claiming that a promotion exam was discriminatory because 
the results gave a disproportionate number of promotions to White 
police officers. As a judge on the appellate court, Judge Sotomayor was 
involved in a nearly identical case, Ricci v. Destefano, involving a 
group of White firefighters seeking promotion in New Haven, CT. City 
officials in New Haven decided to void the results of the exam because 
it had a disparate impact on minorities. Judge Sotomayor agreed with 
the city's decision, and we are now waiting on a ruling from the 
Supreme Court.
       Sotomayor's work as an activist challenging the New York 
     Police Department's test results in 1998 is evidence that she 
     may have allowed personal biases to guide her decision to 
     rule against New Haven firefighters. I hope we can find out 
     more in her confirmation interviews and in her hearings. But 
     I am also troubled by the number of amicus briefs filed by 
     the fund in support of what are radical positions on pro-
     abortion issues during the time Sotomayor was on this same 
     board.
  Six briefs were filed taking positions outside of the mainstream in 
support of abortion rights in prominent cases such as in Webster v. 
Reproductive Health Services or in Ohio v. Akron Center for 
Reproductive Health. In that Ohio v. Akron case, the Court upheld 
Ohio's parental consent laws. These are laws that say, before a minor 
can have an abortion, they must have parental consent.
  Joining the majority opinion were moderate Justice Sandra Day 
O'Connor and liberal Justice John Paul Stevens. Yet the group that 
Judge Sotomayor was associated with filed a brief opposing this 
parental notification law, saying ``any efforts to overturn or in any 
way to restrict the rights in Roe v. Wade,'' they opposed any 
restriction, even allowing parents of a minor child to have parental 
notification that their child was going to go through this major 
medical procedure. She took a stand opposed to that parental right that 
most of the American public, 75 percent of the American public 
supports; that parental right of that notification. She opposed it.
  According to the New York Times:

       The board monitored all litigation undertaken by the fund's 
     lawyers, and a number of those lawyers said Ms. Sotomayor was 
     an involved and ardent supporter of their various legal 
     efforts during her time with the group.

  I am also deeply concerned that Judge Sotomayor will bring this 
radical agenda to the Court.
  Judge Sotomayor has given speeches and written articles promoting 
judicial activism. The President who appointed her said judges should 
have ``the empathy to recognize what it's like to be a young teenage 
mom; the empathy to understand what it is like to be poor or African-
American or gay or disabled or old,'' and that difficult cases should 
be decided by ``what is in the Justice's heart.''
  While I think it is admirable to have empathy, a Justice and a person 
who sits on the bench is to decide this based on the law. That is what 
they are to decide it upon, not an interpretation or rewriting of the 
law.
  The President's view of the role of a Judge on the Court is not 
shared by Justices Marshall or Frankfurter, nor is it the view of 
Hamilton and the drafters of the Constitution.

  The oath that all Supreme Court Justices take says:

       I will administer justice without respect to persons, and 
     do equal right to the poor and to the rich.

  That is the oath they take. The Justice is to be blind and just to 
hear the case and decide it based on the facts and what the law is and 
say what the law says, not what they wish it to be nor what is in their 
heart. It is to be blind and it is to hold these and to weigh these 
equally and fairly to determine the truth and to determine the outcome 
in the case.
  The President is asking his nominees to ignore, in essence, their 
oath. I fear Justice Sotomayor is all too eager to comply.
  In her writings, Judge Sotomayor has rejected the principle of 
impartiality and embraces a rather novel idea that a Judge's personal 
life story should come into play in the courtroom. In a 2001 speech at 
the UC Berkeley Law School, which was later published, Judge Sotomayor 
dismissed the

[[Page S6983]]

idea that ``judges may transcend their personal sympathies and 
prejudices and aspire to achieve a greater degree of fairness and 
integrity based on the reason of law,'' by saying that ``ignoring our 
differences as women or men of color we do a disservice both to the law 
and society.''
  I am not sure why Judge Sotomayor believes the law is somehow 
different when interpreted by people of a different gender, but I think 
Judge Sotomayor is absolutely wrong and we do a disservice to law and 
society when we don't transcend our personal sympathies and prejudices 
and base our decisions upon the facts and the law.
  Judge Sotomayor's view is contrary to the words engraved upon the 
Supreme Court's entrance which state ``equal justice under law.''
  In the same 2001 speech, Judge Sotomayor made the following 
astonishing statement:

       Personal experiences affect the facts judges choose to see. 
     . . . I simply do not know what the difference will be in my 
     judging. But I accept there will be some.

  When Judge Sotomayor says that ``personal experiences affect the 
facts judges choose to see,'' does that mean she is willing to ignore 
other facts? Is justice blind or is it actually interpreting and seeing 
which facts to pick and which facts not to pick?
  The role of judges is to examine all the facts of a particular case, 
not solely the facts that deliver a desired outcome or solely the facts 
that the judge can relate to based on his or her personal biography. It 
is dangerous for this body to consent to elevating a judge who believes 
that justice equates with picking winners and losers based upon his or 
her own personal biases. That is not judging.
  I hope my colleagues understand this 2001 speech at Berkeley was not 
an isolated incident. In a 1994 speech, Judge Sotomayor used language 
nearly identical to that of the 2001 speech, saying judges should not 
ignore their differences as women and people of color and to do so 
would be a disservice to the law and society. In 1994, Judge Sotomayor 
discussed the impact that more women on the bench will have on the 
``development of the law.''
  ``Development,'' like this is about the writing of the law. If that 
is the case, that is done by the Congress not by the courts. Judges do 
not make law, and under no circumstances should they be under the 
impression they do.
  Judge Sotomayor sees judges as lawmakers, as both umpire and player. 
In the 2005 appearance at Duke Law School, she said: ``The court of 
appeals is where policy is made.''
  I wonder how Alexander Hamilton would respond. I think he would 
wholly disagree with that interpretation. Unfortunately, Judge 
Sotomayor's writings and statements lead me to believe that she is a 
proponent, a clear proponent, of an activist judiciary. I cannot 
support her nomination. I will vote no when it comes before the full 
Senate.
  I ask unanimous consent that her speech in the Berkeley La Raza Law 
Journal be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Berkeley La Raza Law Journal, 2002]

 Raising the Bar: Latino and Latina Presence in the Judiciary and the 
                      Struggle for Representation

       Judge Reynoso, thank you for that lovely introduction. I am 
     humbled to be speaking behind a man who has contributed so 
     much to the Hispanic community. I am also grateful to have 
     such kind words said about me.
       I am delighted to be here. It is nice to escape my hometown 
     for just a little bit. It is also nice to say hello to old 
     friends who are in the audience, to rekindle contact with old 
     acquaintances and to make new friends among those of you in 
     the audience. It is particularly heart warming to me to be 
     attending a conference to which I was invited by a Latina law 
     school friend, Rachel Moran, who is now an accomplished and 
     widely respected legal scholar. I warn Latinos in this room: 
     Latinas are making a lot of progress in the old-boy network.
       I am also deeply honored to have been asked to deliver the 
     annual Judge Mario G. Olmos lecture. I am joining a 
     remarkable group of prior speakers who have given this 
     lecture. I hope what I speak about today continues to promote 
     the legacy of that man whose commitment to public service and 
     abiding dedication to promoting equality and justice for all 
     people inspired this memorial lecture and the conference that 
     will follow. I thank Judge Olmos' widow Mary Louise's family, 
     her son and the judge's many friends for hosting me. And for 
     the privilege you have bestowed on me in honoring the memory 
     of a very special person. If I and the many people of this 
     conference can accomplish a fraction of what Judge Olmos did 
     in his short but extraordinary life we and our respective 
     communities will be infinitely better.
       I intend tonight to touch upon the themes that this 
     conference will be discussing this weekend and to talk to you 
     about my Latina identity, where it came from, and the 
     influence I perceive it has on my presence on the bench.
       Who am I. I am a ``Newyorkrican.'' For those of you on the 
     West Coast who do not know what that term means: I am a born 
     and bred New Yorker of Puerto Rican-born parents who came to 
     the states during World War II.
       Like many other immigrants to this great land, my parents 
     came because of poverty and to attempt to find and secure a 
     better life for themselves and the family that they hoped to 
     have. They largely succeeded. For that, my brother and I are 
     very grateful. The story of that success is what made me and 
     what makes me the Latina that I am. The Latina side of my 
     identity was forged and closely nurtured by my family through 
     our shared experiences and traditions.
       For me, a very special part of my being Latina is the mucho 
     platos de arroz, gandoles y pernir--rice, beans and pork--
     that I have eaten at countless family holidays and special 
     events. My Latina identity also includes, because of my 
     particularly adventurous taste buds, morcilla,--pig 
     intestines, patitas de cerdo con garbanzo--pigs' feet with 
     beans, and la lengua y orejas de cuchifrito, pigs' tongue 
     and ears. I bet the Mexican-Americans in this room are 
     thinking that Puerto Ricans have unusual food tastes. Some 
     of us, like me, do. Part of my Latina identity is the 
     sound of merengue at all our family parties and the heart 
     wrenching Spanish love songs that we enjoy. It is the 
     memory of Saturday afternoon at the movies with my aunt 
     and cousins watching Cantinflas, who is not Puerto Rican, 
     but who was an icon Spanish comedian on par with Abbot and 
     Costello of my generation. My Latina soul was nourished as 
     I visited and played at my grandmother's house with my 
     cousins and extended family. They were my friends as I 
     grew up. Being a Latina child was watching the adults 
     playing dominos on Saturday night and us kids playing 
     loteria, bingo, with my grandmother calling out the 
     numbers which we marked on our cards with chick peas.
       Now, does any one of these things make me a Latina? 
     Obviously not because each of our Carribean and Latin 
     American communities has their own unique food and different 
     traditions at the holidays. I only learned about tacos in 
     college from my Mexican-American roommate. Being a Latina in 
     America also does not mean speaking Spanish. I happen to 
     speak it fairly well. But my brother, only three years 
     younger, like too many of us educated here, barely speaks it. 
     Most of us born and bred here, speak it very poorly.
       If I had pursued my career in my undergraduate history 
     major, I would likely. provide you with a very academic 
     description of what being a Latino or Latina means. For 
     example, I could define Latinos as those peoples and cultures 
     populated or colonized by Spain who maintained or adopted 
     Spanish or Spanish Creole as their language of communication. 
     You can tell that I have been very well educated. That 
     antiseptic description however, does not really explain the 
     appeal of morcilla--pig's intestine--to an American born 
     child. It does not provide an adequate explanation of why 
     individuals like us, many of whom are born in this completely 
     different American culture, still identify so strongly with 
     those communities in which our parents were born and raised.
       America has a deeply confused image of itself that is in 
     perpetual tension. We are a nation that takes pride in our 
     ethnic diversity, recognizing its importance in shaping our 
     society and in adding richness to its existence. Yet, we 
     simultaneously insist that we can and must function and live 
     in a race and color-blind way that ignore these very 
     differences that in other contexts we laud. That tension 
     between ``the melting pot and the salad bowl''--a recently 
     popular metaphor used to described New York's diversity--is 
     being hotly debated today in national discussions about 
     affirmative action. Many of us struggle with this tension and 
     attempt to maintain and promote our cultural and ethnic 
     identities in a society that is often ambivalent about how to 
     deal with its differences. In this time of great debate we 
     must remember that it is not political struggles that create 
     a Latino or Latina identity. I became a Latina by the way I 
     love and the way I live my life. My family showed me by their 
     example how wonderful and vibrant life is and how wonderful 
     and magical it is to have a Latina soul. They taught me to 
     love being a Puerto Riquena and to love America and value its 
     lesson that great things could be achieved if one works hard 
     for it. But achieving success here is no easy accomplishment 
     for Latinos or Latinas, and although that struggle did not 
     and does not create a Latina identity, it does inspire how I 
     live my life.
       I was born in the year 1954. That year was the fateful year 
     in which Brown v. Board of Education was decided. When I was 
     eight, in 1961, the first Latino, the wonderful Judge 
     Reynaldo Garza, was appointed to the federal bench, an event 
     we are celebrating at this conference. When I finished law 
     school in 1979, there were no women judges on the Supreme 
     Court or on the highest court of my

[[Page S6984]]

     home state, New York. There was then only one Afro-American 
     Supreme Court Justice and then and now no Latino or Latina 
     justices on our highest court. Now in the last twenty plus 
     years of my professional life, I have seen a quantum leap in 
     the representation of women and Latinos in the legal 
     profession and particularly in the judiciary. In addition to 
     the appointment of the first female United States Attorney 
     General, Janet Reno, we have seen the appointment of two 
     female justices to the Supreme Court and two female justices 
     to the New York Court of Appeals, the highest court of my 
     home state. One of those judges is the Chief Judge and 
     the other is a Puerto Riquena, like I am. As of today, 
     women sit on the highest courts of almost all of the 
     states and of the territories, including Puerto Rico. One 
     Supreme Court, that of Minnesota, had a majority of women 
     justices for a period of time.
       As of September 1, 2001, the federal judiciary consisting 
     of Supreme, Circuit and District Court Judges was about 22% 
     women. In 1992, nearly ten years ago, when I was first 
     appointed a District Court Judge, the percentage of women in 
     the total federal judiciary was only 13%. Now, the growth of 
     Latino representation is somewhat less favorable. As of today 
     we have, as I noted earlier, no Supreme Court justices, and 
     we have only 10 out of 147 active Circuit Court judges and 30 
     out of 587 active district court judges. Those numbers are 
     grossly below our proportion of the population. As recently 
     as 1965, however, the federal bench had only three women 
     serving and only one Latino judge. So changes are happening, 
     although in some areas, very slowly. These figures and 
     appointments are heartwarming. Nevertheless, much still 
     remains to happen.
       Let us not forget that between the appointments of Justice 
     Sandra Day O'Connor in 1981 and Justice Ginsburg in 1992, 
     eleven years passed. Similarly, between Justice Kaye's 
     initial appointment as an Associate Judge to the New York 
     Court of Appeals in 1983, and Justice Ciparick's appointment 
     in 1993, ten years elapsed. Almost nine years later, we are 
     waiting for a third appointment of a woman to both the 
     Supreme Court and the New York Court of Appeals and of a 
     second minority, male or female, preferably Hispanic, to the 
     Supreme Court. In 1992 when I joined the bench, there were 
     still two out of 13 circuit courts and about 53 out of 92 
     district courts in which no women sat. At the beginning of 
     September of 2001, there are women sitting in all 13 circuit 
     courts. The First, Fifth, Eighth and Federal Circuits each 
     have only one female judge, however, out of a combined total 
     number of 48 judges. There are still nearly 37 district 
     courts with no women judges at all. For women of color the 
     statistics are more sobering. As of September 20, 1998, of 
     the then 195 circuit court judges only two were African-
     American women and two Hispanic women. Of the 641 district 
     court judges only twelve were African-American women and 
     eleven Hispanic women. African-American women comprise only 
     1.56% of the federal judiciary and Hispanic-American women 
     comprise only 1%. No African-American, male or female, sits 
     today on the Fourth or Federal circuits. And no Hispanics, 
     male or female, sit on the Fourth, Sixth, Seventh, Eighth, 
     District of Columbia or Federal Circuits.
       Sort of shocking, isn't it. This is the year 2002. We have 
     a long way to go. Unfortunately, there are some very deep 
     storm warnings we must keep in mind. In at least the last 
     five years the majority of nominated judges the Senate 
     delayed more than one year before confirming or never 
     confirming were women or minorities. I need not remind this 
     audience that Judge Paez of your home Circuit, the Ninth 
     Circuit, has had the dubious distinction of having had his 
     confirmation delayed the longest in Senate history. These 
     figures demonstrate that there is a real and continuing need 
     for Latino and Latina organizations and community groups 
     throughout the country to exist and to continue their efforts 
     of promoting women and men of all colors in their pursuit for 
     equality in the judicial system.
       This weekend's conference, illustrated by its name, is 
     bound to examine issues that I hope will identify the efforts 
     and solutions that will assist our communities. The focus of 
     my speech tonight, however, is not about the struggle to get 
     us where we are and where we need to go but instead to 
     discuss with you what it all will mean to have more women and 
     people of color on the bench. The statistics I have been 
     talking about provide a base from which to discuss a question 
     which one of my former colleagues on the Southern District 
     bench, Judge Miriam Cederbaum, raised when speaking about 
     women on the federal bench. Her question was: What do the 
     history and statistics mean. In her speech, Judge Cederbaum 
     expressed her belief that the number of women and by direct 
     inference people of color on the bench, was still 
     statistically insignificant and that therefore we could not 
     draw valid scientific conclusions from the acts of so few 
     people over such a short period of time. Yet, we do have 
     women and people of color in more significant numbers on the 
     bench and no one can or should ignore pondering what that 
     will mean or not mean in the development of the law. Now, 
     I cannot and do not claim this issue as personally my own. 
     In recent years there has been an explosion of research 
     and writing in this area. On one of the panels tomorrow, 
     you will hear the Latino perspective in this debate.
       For those of you interested in the gender perspective on 
     this issue, I commend to you a wonderful compilation of 
     articles published on the subject in Vol. 77 of the 
     Judicature, the Journal of the American Judicature Society of 
     November-December 1993. It is on Westlaw/Lexis and I assume 
     the students and academics in this room can find it.
       Now Judge Cedarbaum expresses concern with any analysis of 
     women and presumably again people of color on the bench, 
     which begins and presumably ends with the conclusion that 
     women or minorities are different from men generally. She 
     sees danger in presuming that judging should be gender or 
     anything else based. She rightly points out that the 
     perception of the differences between men and women is what 
     led to many paternalistic laws and to the denial to women of 
     the right to vote because we were described then ``as not 
     capable of reasoning or thinking logically'' but instead of 
     ``acting intuitively.'' I am quoting adjectives that were 
     bandied around famously during the suffragettes' movement.
       While recognizing the potential effect of individual 
     experiences on perception, Judge Cedarbaum nevertheless 
     believes that 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. Although I 
     agree with and attempt to work toward Judge Cedarbaum's 
     aspiration, I wonder whether achieving that goal is possible 
     in all or even in most cases. And I wonder whether by 
     ignoring our differences as women or men of color we do a 
     disservice both to the law and society. Whatever the reasons 
     why we may have different perspectives, either as some 
     theorists suggest because of our cultural experiences or as 
     others postulate because we have basic differences in logic 
     and reasoning, are in many respects a small part of a larger 
     practical question we as women and minority judges in society 
     in general must address. I accept the thesis of a law school 
     classmate, Professor Steven Carter of Yale Law School, in his 
     affirmative action book that in any group of human beings 
     there is a diversity of opinion because there is both a 
     diversity of experiences and of thought. Thus, as noted by 
     another Yale Law School Professor--I did graduate from there 
     and I am not really biased except that they seem to be doing 
     a lot of writing in that area--Professor Judith Resnik says 
     that there is not a single voice of feminism, not a feminist 
     approach but many who are exploring the possible ways of 
     being that are distinct from those structured in a world 
     dominated by the power and words of men. Thus, feminist 
     theories of judging are in the midst of creation and are not 
     and perhaps will never aspire to be as solidified as the 
     established legal doctrines of judging can sometimes appear 
     to be.
       That same point can be made with respect to people of 
     color. No one person, judge or nominee will speak in a female 
     or people of color voice. I need not remind you that Justice 
     Clarence Thomas represents a part but not the whole of 
     African-American thought on many subjects. Yet, because I 
     accept the proposition that, as Judge Resnik describes it, 
     ``to judge is an exercise of power'' and because as, another 
     former law school classmate, Professor Martha Minnow of 
     Harvard Law School, states ``there is no objective stance but 
     only a series of perspectives--no neutrality, no escape from 
     choice in judging,'' I further accept that our experiences as 
     women and people of color affect our decisions. The 
     aspiration to impartiality is just that--it's an aspiration 
     because it denies the fact that we are by our experiences 
     making different choices than others. Not all women or people 
     of color, in all or some circumstances or indeed in any 
     particular case or circumstance but enough people of color in 
     enough cases, will make a difference in the process of 
     judging. The Minnesota Supreme Court has given an example of 
     this. As reported by Judge Patricia Wald formerly of the D.C. 
     Circuit Court, three women on the Minnesota Court with two 
     men dissenting agreed to grant a protective order against a 
     father's visitation rights when the father abused his child. 
     The Judicature Journal has at least two excellent studies on 
     how women on the courts of appeal and state supreme 
     courts have tended to vote more often than their male 
     counterpart to uphold women's claims in sex discrimination 
     cases and criminal defendants' claims in search and 
     seizure cases. As recognized by legal scholars, whatever 
     the reason, not one woman or person of color in any one 
     position but as a group we will have an effect on the 
     development of the law and on judging.
       In our private conversations, Judge Cedarbaum has pointed 
     out to me that seminal decisions in race and sex 
     discrimination cases have come from Supreme Courts composed 
     exclusively of white males. I agree that this is significant 
     but I also choose to emphasize that the people who argued 
     those cases before the Supreme Court which changed the legal 
     landscape ultimately were largely people of color and women. 
     I recall that Justice Thurgood Marshall, Judge Connie Baker 
     Motley, the first black woman appointed to the federal bench, 
     and others of the NAACP argued Brown v. Board of Education. 
     Similarly, Justice Ginsburg, with other women attorneys, was 
     instrumental in advocating and convincing the Court that 
     equality of work required equality in terms and conditions of 
     employment.
       Whether born from experience or inherent physiological or 
     cultural differences, a possibility I abhor less or discount 
     less than my colleague Judge Cedarbaum, our gender and 
     national origins may and will make a difference in our 
     judging. Justice O'Connor has

[[Page S6985]]

     often been cited as saying that a wise old man and wise old 
     woman will reach the same conclusion in deciding cases. I am 
     not so sure Justice O'Connor is the author of that line since 
     Professor Resnik attributes that line to Supreme Court 
     Justice Coyle. I am also not so sure that I agree with the 
     statement. First, as Professor Martha Minnow has noted, there 
     can never be a universal definition of wise. Second, 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.
       Let us not forget that wise men like Oliver Wendell Holmes 
     and Justice Cardozo voted on cases which upheld both sex and 
     race discrimination in our society. Until 1972, no Supreme 
     Court case ever upheld the claim of a woman in a gender 
     discrimination case. I, like Professor Carter, believe that 
     we should not be so myopic as to believe that others of 
     different experiences or backgrounds are incapable of 
     understanding the values and needs of people from a different 
     group. Many are so capable. As Judge Cedarbaum pointed out to 
     me, nine white men on the Supreme Court in the past have done 
     so on many occasions and on many issues including Brown.
       However, to understand takes time and effort, something 
     that not all people are willing to give. For others, their 
     experiences limit their ability to understand the experiences 
     of others. Others simply do not care. Hence, one must accept 
     the proposition that a difference there will be by the 
     presence of women and people of color on the bench. Personal 
     experiences affect the facts that judges choose to see. My 
     hope is that I will take the good from my experiences and 
     extrapolate them further into areas with which I am 
     unfamiliar. I simply do not know exactly what that difference 
     will be in my judging. But I accept there will be some based 
     on my gender and my Latina heritage.
       I also hope that by raising the question today of what 
     difference having more Latinos and Latinas on the bench will 
     make will start your own evaluation. For people of color and 
     women lawyers, what does and should being an ethnic minority 
     mean in your lawyering? For men lawyers, what areas in your 
     experiences and attitudes do you need to work on to make you 
     capable of reaching those great moments of enlightenment 
     which other men in different circumstances have been able to 
     reach. For all of us, how do change the facts that in every 
     task force study of gender and race bias in the courts, women 
     and people of color, lawyers and judges alike, report in 
     significantly higher percentages than white men that their 
     gender and race has shaped their careers, from hiring, 
     retention to promotion and that a statistically significant 
     number of women and minority lawyers and judges, both alike, 
     have experienced bias in the courtroom?
       Each day on the bench I learn something new about the 
     judicial process and about being a professional Latina woman 
     in a world that sometimes looks at me with suspicion. I am 
     reminded each day that I render decisions that affect people 
     concretely and that I owe them constant and complete 
     vigilance in checking my assumptions, presumptions and 
     perspectives and ensuring that to the extent that my limited 
     abilities and capabilities permit me, that I reevaluate them 
     and change as circumstances and cases before me requires. I 
     can and do aspire to be greater than the sum total of my 
     experiences but I accept my limitations. I willingly accept 
     that we who judge must not deny the differences resulting 
     from experience and heritage but attempt, as the Supreme 
     Court suggests, continuously to judge when those opinions, 
     sympathies and prejudices are appropriate.
       There is always a danger embedded in relative morality, but 
     since judging is a series of choices that we must make, that 
     I am forced to make, I hope that I can make them by informing 
     myself on the questions I must not avoid asking and 
     continuously pondering. We, I mean all of us in this room, 
     must continue individually and in voices united in 
     organizations that have supported this conference, to think 
     about these questions and to figure out how we go about 
     creating the opportunity for there to be more women and 
     people of color on the bench so we can finally have 
     statistically significant numbers to measure the differences 
     we will and are making.
       I am delighted to have been here tonight and extend once 
     again my deepest gratitude to all of you for listening and 
     letting me share my reflections on being a Latina voice on 
     the bench. Thank you.

  Mr. BROWNBACK. I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Ohio is recognized.
  Mr. BROWN. I thank the Chair.
  (The remarks of Mr. Brown pertaining to the introduction of S. 1343 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. LUGAR. Mr. President, today the Senate considers the nomination 
of Harold Koh to be Legal Adviser to the Department of State. After 
reading his answers to dozens of questions, attending his hearing in 
its entirety, meeting with him privately, and reviewing his writings, I 
believe that Dean Koh is unquestionably qualified to assume the post 
for which he is nominated. He has had a distinguished career as a 
teacher and advocate, and he is regarded widely as one of our Nation's 
most accomplished experts on the theory and practice of international 
law. He also has served ably in our government as a Justice Department 
lawyer during the Reagan administration and as Assistant Secretary of 
State for Democracy, Human Rights, and Labor from 1998 to 2001.
  The committee has received innumerable letters of support for the 
nominee attesting to his character, his love of country, and his 
respect for the law. He enjoys support from the lawyers with whom he 
has worked, as well as those including former Solicitor General Kenneth 
Starr--whom he has litigated against.
  Both in private meetings and in public testimony, Dean Koh has 
affirmed that he understands the parameters of his role as State 
Department Legal Adviser. He understands that his role will be to 
provide policymakers objective advice on legal issues, not to be a 
campaigner for particular policy outcomes. He also has affirmed that as 
Legal Adviser, he will be prepared to defend the policies and interests 
of the U.S. Government, even when they may be at odds with positions he 
has taken in a private capacity. In applying laws relevant to the State 
Department's work, he has stated clearly that he will take account of 
and respect prior U.S. Government interpretations and practices under 
those laws, rather than considering each such issue as a matter of 
first impression.
  Finally, I believe Dean Koh respects the role of the Senate and the 
Congress on international legal matters, especially treaties. He has 
promised to consult with us regularly and fully, not just when treaties 
come before the Senate, but also on the application of treaties on 
which the Senate has already provided advice and consent, including any 
proposed changes in the interpretation of such treaties.
  Absent extraordinary circumstances, President Obama and Secretary of 
State Clinton should be able to choose the individuals on whom they 
will depend for legal analysis, interpretation, and advice. Given Dean 
Koh's record of service and accomplishment, his personal character, his 
understanding of his role as Legal Adviser, and his commitment to work 
closely with Congress, I support his nomination and believe he is well 
deserving of confirmation by the Senate.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bennet). Without objection, it is so 
ordered.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent to speak as in 
morning business for 18 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.