[Congressional Record Volume 155, Number 100 (Tuesday, July 7, 2009)]
[Senate]
[Pages S7161-S7162]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. SESSIONS. Madam President, I express my appreciation to the 
Senator from Tennessee for his insightful comments. Indeed, it is a 
tangled web we create when we first start to regulate. It is a tangled 
web, too, when we start owning automobile companies which we know 
nothing about. Madam President, we are looking forward to next week and 
working as hard as we can to ensure that we have a very fine 
confirmation hearing in the Judiciary Committee for the judge nominated 
to be a Justice of the Supreme Court by President Obama, Judge 
Sotomayor. I will share a few thoughts about that and some matters that 
I think are important for my colleagues to think about as they study 
this issue and work to do the right thing about it.
  The President's nominee is, of course, his nominee, and it is our 
responsibility--and the only opportunity the American people have to 
know anything about this process is the hearing in which the nominee 
has to answer questions and respond. Senators will make comments and 
ask questions.
  When we elevate one of our citizens to a Federal judgeship, we give 
them an awesome responsibility, and particularly so when elevated to 
the Supreme Court. They are the final word on our Constitution, how the 
Constitution and our laws are to be interpreted. Some judges, I have to 
say, have not been faithful in their responsibilities. They have 
allowed personal views and values to impact them, in my view. We ask 
them as judges to take on a different role than they have in private 
practice. We ask them to shed their personal beliefs, their personal 
bias and, yes, their personal experiences. We ask them to take an oath 
to impartial justice.
  Our wonderful judicial system--the greatest the world has ever seen--
rests upon this first principle. It is an adversarial system that is 
designed to produce, through cross-examination and other rules and 
procedures, truth--objective truth. The American legal system is 
founded on a belief in objective truth and its ascertainability. This 
is a key to justice.
  But in this postmodern world, our law schools and some intellectuals 
tend to be of a view that words don't really have meaning; words are 
just matters some politically powerful group got passed one day, and 
they don't have concrete meanings and you don't have to try to 
ascertain what they meant. And, indeed, a good theory of law is to 
allow the judge to update it, change it, or adopt how they would like 
it to be.
  I suggest this is not a healthy trend in America. It impacts this 
Nation across the board in so many ways. But I think it is particularly 
pernicious, when it comes to the law, if that kind of relativistic 
mentality takes over.
  This notion of blind justice, objectivity, and impartiality has been 
in our legal system from the beginning, and it should not be eroded. 
Every judge takes this oath. I think it sums up so well the ideals of 
the fabulous system we have. A judge takes this oath:

       I do solemnly swear that I will administer justice without 
     respect to persons, and do equal right to the poor and to the 
     rich, and that I will faithfully and impartially discharge 
     and perform all the duties incumbent upon me under the 
     Constitution and laws of the United States, so help me God.

  Well, I guess the Court hasn't gotten around to striking their oath 
yet--at least that part that says ``so help me God.'' Those phrases 
have certainly been attacked around the country by Federal judges, in 
many instances. This oath--I have to say this--stands in contrast to 
the President's standard for judicial nominees.
  I am concerned, based on her speeches and statements, that it may 
also be the judicial philosophy of Judge Sotomayor.
  In 2005, then-Senator Obama explained that 5 percent of cases, he 
believes, are determined by ``one's deepest values and core concerns . 
. . and the depth and breadth of one's empathy.'' He means a judge's 
personal core concerns, values, and empathy.
  Well, according to the President, in 5 percent of the cases where 
issues are close, that is acceptable. I think we must draw from his 
statement that it is acceptable for judges to not set aside their 
personal beliefs, not discard personal bias, not dispense with their 
personal experiences as they make rulings, as they decide cases, which 
is what judges do.
  According to the President, in 5 percent of cases, Lady Justice 
should remove her blindfold, take a look at the litigants, and then 
reach out and place her thumb on the scales of justice on one side or 
the other. I think this is a dangerous departure from the most 
fundamental pillar of our judicial system--judicial impartiality. That 
is why judges are given lifetime appointments. They are supposed to be 
unbiased and impartial.
  Whatever this new empathy standard is, it is not law. It is more akin 
to politics than law. Whenever a judge puts his or her thumb on the 
scale of justice in favor of one party or another, the judge 
necessarily disfavors the other party. For every litigant who benefits 
from this so-called empathy, there will be another litigant who loses 
not because of the law or the facts, but because the judge did not 
empathize or identify with them.
  What is empathy? Is this your personal feeling that you had a tough 
childhood or some prejudice that you have--you are a Protestant or a 
Catholic or your ethnicity or your race or some bias you brought with 
you to life and to the court? Is that what empathy is? Well, it has no 
objective meaning, and that is why it is not a legal standard. The oath 
of ``impartiality'' to ``equal justice to the rich and the poor alike'' 
is violated when such things infect the decisionmaking process.
  With this as his stated standard, the President nominated Judge Sonia 
Sotomayor for the Supreme Court of the United States. Thus far our 
review of her record suggests that she may well embrace the President's 
notion of empathy, and I will share a few thoughts on that.
  On a number of occasions over the years, Judge Sotomayor delivered a 
speech entitled ``Women in the Judiciary.'' In it she emphasizes that 
she accepts the proposition that a judge's personal experiences affect 
judicial outcomes:

       In short, I accept the proposition that a difference will 
     be made by the presence of women on the bench and that my 
     experiences will affect the facts that I choose to see as a 
     judge.

  In fact, in one speech, she rejected another woman judge's view that 
a woman and a man should reach the same decision in a case. She 
explicitly rejected that concept. She reaffirms:

       I simply do not know exactly what that difference will be 
     in my judging, but I accept there will be some [differences] 
     based on my gender and the experiences it has imposed on me.

  I think this would tend to be a rejection of even the aspiration, the 
ideal, of impartiality that is fundamental to our legal system and our 
freedoms.
  In a later speech, Judge Sotomayor takes a giant step, expressing a 
desire to draw upon her experiences in her judging. She states:

       Personal experiences affect the facts 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 that there will be some 
     based on my gender and my Latina heritage.

  Well, are the days now gone when judges should see their taking 
office as a commitment to set aside their personal experiences, biases, 
and views when they put on the robe? Gone are the days when judges even 
aspire to be impartial.
  In that same speech, which has been given a number of times, Judge 
Sotomayor goes a step further, saying:

       I willingly accept that we who judge must not deny the 
     differences resulting from experience and heritage, but 
     attempt continuously to judge when those opinions, sympathies 
     and prejudices are appropriate.

  She says a judge should attempt continuously to judge when those 
opinions, sympathies, and prejudices are appropriate. That means that a 
judge's prejudices are appropriate to use in the decisionmaking 
process.
  I find this to be an extraordinary judicial philosophy. Some might 
say you

[[Page S7162]]

are making too much of it, that empathy sounds fine to me; I don't have 
any problem with that. Empathy is great, perhaps, if you are the 
beneficiary of it. The judge is empathetic with you, your side of the 
argument, but it is not good if you are on the wrong side of the 
argument, if you don't catch a judge's fancy or fail to appeal to a 
shared personal experience.
  This approach to judging, as expressed in her speeches and writings, 
appears to have played an important part in the New Haven firefighters' 
case Senator McConnell mentioned earlier. These are the 17 firefighters 
who followed all the rules, studied for the test. It was publicly set 
out how the promotions would take place in that department. A number of 
people passed, but a number of people did not, and there were a number 
of minorities who did not pass. They wanted to change the test after it 
had been carried out, to change the rules of the game after it had been 
carried out because they did not like the results. This is a results-
oriented question.
  Bowing to political pressure, the city government looked only at the 
test results and the statistical data and changed the rules of the 
game. They threw out the test. This was challenged by the persons who 
passed. The district judge then agreed with the city in a 48-or-so-page 
opinion. It was appealed to Judge Sotomayor's court. In one paragraph 
only, she agreed with that decision, even though it raised fundamental, 
important constitutional questions, important questions.
  She concluded that the complaining firefighters were not even 
entitled to a trial, that the pretrial motions were sufficient to deny 
them the remedy they sought and to affirm the city's opinion in one 
paragraph.
  The U.S. Supreme Court disagreed. They wrote almost 100 pages in 
their opinion, and all nine Justices voted to reverse the opinion. It 
was not 5 to 4. Five of the Justices, the majority, ruled that based on 
the facts in evidence that had been presented prior to trial, the 
firefighters were entitled to total victory and be able to win their 
lawsuit. This is a pretty significant reversal, I have to say.
  The question is: Did she allow her prior experiences and beliefs to 
impact her decision in that case? I point out that she was an active 
member of the Puerto Rican Legal Defense Fund, where she spent a number 
of years working on cases such as this and filing litigation and 
challenging promotion policies in cities around the country, which is a 
legitimate thing for a group to do. But they did take a very aggressive 
standard criticizing tests and the standardized process of testing.
  Of course, her stated philosophy is that a judge should use life 
experiences in reaching decisions. We do know she believes a judge is 
empowered to utilize his or her personal ``opinions, sympathies, and 
prejudices'' in deciding cases. We do know her particular life 
experiences with the Legal Defense Fund were contrary to the claims 
brought by the New Haven firefighters. We know she was a leader and 
board member and chair of that organization's litigation committee. 
According to the New York Times, she ``met frequently with the legal 
staff of the organization to review the status of cases.'' According to 
the New York Times, ``she was involved and was an ardent supporter of 
their various legal efforts.'' She oversaw, as a board member and 
litigation chair, several cases involving the New York City Department 
of Sanitation, which challenged a promotion policy because Hispanics 
comprised 5.2 percent of the test takers but only 3.8 percent had 
passed the test. They declared that was an unfair result and challenged 
the test. Another involved the New York City Police Department on 
behalf of the Hispanic Police Society. Another one involved police 
officers in a discrimination case challenging the New York Police 
Department's lieutenants exam, claiming that exam was biased.
  Under her leadership, the Puerto Rican Legal Defense Fund, before she 
became a judge, involved itself in a series of cases designed to attack 
promotion exams because the group concluded that after the fact, after 
the test, not enough minorities were being promoted. It sounds a lot 
like this firefighters case we talked a good bit about so far.
  We are left to wonder what role did the judge's personal experiences 
play when she heard the case. Did her personal views, as she has 
stated, ``affect the facts she chose to see?''
  The PRESIDING OFFICER. The Republican time has expired.
  Mr. SESSIONS. Madam President, I ask unanimous consent for 1 
additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Madam President, those are important questions, and we 
will ask about them and give her full and ample opportunity to respond. 
I did wish to raise these issues.
  The firefighters were denied promotion, and under her stated 
philosophy, her prior background, they are left to wonder: Was perhaps 
the reason they lost in her court because she brought her background 
and her prejudices to bear on the case and did not give them a fair 
chance? Very few cases are taken by the Supreme Court, but the Supreme 
Court did take this one, to the benefit of the firefighters, and 
reversed this decision. All nine Justices concluded the decision was 
improperly done and should be reversed, and five of them rendered a 
verdict in favor of the firefighters on the record as existed then.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.

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