[Congressional Record Volume 155, Number 102 (Thursday, July 9, 2009)]
[Senate]
[Pages S7277-S7278]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. McCONNELL. Madam President, over the past several weeks, my 
colleagues and I have raised a number of serious questions about the 
judicial record and public statements of Judge Sonia Sotomayor in 
connection with her nomination and upcoming confirmation hearings to 
the U.S. Supreme Court. These questions are driven by a growing sense, 
based strictly on the record, that Judge Sotomayor has allowed her 
personal and political views to cloud her judgment in the courtroom, 
leading her to favor some groups over others.
  All of us are impressed by Judge Sotomayor's remarkable life story. 
It reaffirms not only to Americans but to people around the world that 
ours is a country in which one's willingness to dream and to work hard 
remain the only requirements for success.
  And yet it is precisely this truth about America that makes it so 
important that our judges apply the law the same way to one individual 
or group as to every other.
  This is why we have raised the questions we have. And this is why we 
will continue to raise them as the confirmation hearings for Judge 
Sotomayor proceed. This morning I would like to discuss an area of 
Judge Sotomayor's record that hasn't been touched upon yet, and that is 
her record on the fundamental right of free speech.

[[Page S7278]]

  This right to free speech was considered so important by our Founders 
that they included it as the first amendment in the Bill of Rights, 
along with the freedom of the press and religion, and the right to 
assemble and petition the government. It is one of the bedrocks of our 
government and our culture. And it is one of the primary defenses the 
Founders established against the perennial threat of government 
intrusion.
  So it is essential that we know what someone who has been nominated 
for a life-tenure on the Nation's highest court thinks about this 
issue. And when it comes to Judge Sotomayor, her record raises serious 
questions about her views on free speech.
  Let's start with a law review article that Judge Sotomayor co-wrote 
in 1996 on one particular kind of speech, political speech. In the 
article, Judge Sotomayor makes a number of startling assertions which 
offer us a glimpse of her thoughts on the issue.
  First, and perhaps most concerning, she equates campaign 
contributions to bribery, going so far as to assume that a ``quid pro 
quo'' relationship is at play every time anyone makes a contribution to 
a political campaign. She goes on to say that:

       We would never condone private gifts to judges about to 
     decide a case implicating the gift-givers' interests. Yet our 
     system of election financing permits extensive private, 
     including corporate, financing of candidates' campaigns, 
     raising again and again the question of what the difference 
     is between contributions and bribes and how legislators or 
     other officials can operate objectively on behalf of the 
     electorate.

  In the same law review article, Judge Sotomayor calls into question 
the integrity of every elected official, Democrat and Republican alike, 
based solely on the fact that they collect contributions to run their 
political campaigns. She writes:

       Can elected officials say with credibility that they are 
     carrying out the mandate of a ``democratic'' society, 
     representing only the general public good, when private money 
     plays such a large role in their campaigns?

  In my view, the suggestion that such contributions are tantamount to 
bribery should offend anyone who has ever contributed to a political 
campaign--including the millions of Americans who donated money in 
small and large amounts to the Presidential campaign of the man who 
nominated Judge Sotomayor to the Supreme Court.
  Judge Sotomayor's views on free speech would be important in any 
case. They are particularly important at the moment, however, since 
several related cases are now working their way through the judicial 
system--cases that could ultimately end up in front of the Supreme 
Court. One particularly important case on the issue, Citizens United v. 
FEC, will be reargued before the Supreme Court at the end of September.
  Coincidentally, the most recent Supreme Court decision on the topic 
actually passed through the court on which Judge Sotomayor currently 
sits, presenting us with yet another avenue for evaluating her approach 
to questions of free speech--with one important difference: in the Law 
Review article I have already discussed, we got Judge Sotomayor's 
opinion about campaign contributions. In the court case in question, 
Randall v. Sorrell, we get a glimpse of her actual application of the 
law.
  Here is the background on the case. In 1997, the State of Vermont 
enacted a law which brought about stringent restrictions on the amount 
of money candidates could raise and spend. The law also limited party 
expenditures. Viewing these limits as violating their first amendment 
rights, a group of candidates, voters, and political action committees 
brought suit. The district court agreed with the plaintiffs in the case 
on two of the three points, finding only the contribution limits 
constitutional.
  The case was then appealed to the Second Circuit, where a three-judge 
panel reversed the lower court and reinstated all limits in direct 
contradiction of nearly 20 years of precedents dating all the way back 
to the case of Buckley v. Valeo. It was in Buckley that the Supreme 
Court held that Congress overstepped its bounds in trying to restrict 
the amount of money that could be spent--so-called expenditure limits--
but upheld the amount that could be raised--so-called contribution 
limits.
  At that point, the petitioners in the Vermont case sought a rehearing 
by the entire Second Circuit, arguing that the blatant disregard of a 
precedent as well-settled as Buckley was grounds for review. Oddly 
enough, the judges on the Second Circuit, including Judge Sotomayor, 
took a pass. They decided to let the Supreme Court clean up the 
confusion created when the three-judge panel decided to ignore Buckley.
  Traditionally, errors like these are precisely the reason that 
motions for a rehearing of an entire circuit are designed. In fact, 
according to the Federal Rules of Appellate Procedure, a review by the 
full court, what is commonly referred to as an en banc rehearing, is 
specifically called for in cases where ``the proceeding involves a 
question of exceptional importance.'' And what could be more important 
for a lower court judge than following Supreme Court precedent and 
protecting and preserving the first amendment? But the Second Circuit 
declined.
  In the end, the Supreme Court corrected the errors of the Second 
Circuit in a 6-3 opinion drafted by none other than Justice Breyer. 
Here is what Breyer wrote:

       We hold that both sets of limitations [on contributions and 
     expenditures] are inconsistent with the First Amendment. 
     Well-established precedent--and here Justice Breyer was 
     citing Buckley--makes clear that the expenditure limits 
     violate the First Amendment.

  One of the principal requirements for a nominee to the courts is a 
respect for the rule of law. In this instance, according to Justice 
Breyer, that respect for the law was sorely lacking.
  More than two centuries ago, the States ratified the first amendment 
to the U.S. Constitution to protect the right of every American from 
that moment and for all time to express themselves freely. ``Congress 
shall make no law,'' it said, ``respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press, or the right of the people 
peaceably to assemble, and to petition the Government for redress of 
grievances.''
  You could say, as I have said many times, that with the first 
amendment, our forefathers adopted the ultimate campaign finance 
regulation. And yet this issue continues to come before the courts, and 
will continue to come up before the courts. It is an issue of 
fundamental importance, touching on one of our most basic rights. And 
based on the writings and decisions of Judge Sotomayor, I have strong 
reservations about whether this nominee will choose to follow the first 
amendment or attempt to steer the Court to a result grounded in the 
kind of personal ideology that she so clearly and troublingly expressed 
in the law review article I have described.
  It is not just this issue about which those concerns arise. Over the 
past several weeks, we have heard about a number of instances in which 
Judge Sotomayor's personal views seem to call into question her 
evenhanded application of the law.
  Just last week, the Supreme Court reversed her decision to throw out 
a discrimination suit filed by a group of mostly White firefighters who 
had clearly earned a promotion. Notably, this was the ninth time out of 
ten that the high court has rejected her handling of a case.
  We have heard her call into question, repeatedly over the years, 
whether judges could even be impartial in most cases. And she has even 
said that her experience ``will affect the facts that [she] chooses to 
see as a judge''.
  Americans have a right to expect that judges will apply the law 
evenhandedly--that everyone in this country will get a fair shake, 
whether they are in small claims court or the Supreme Court, and 
whether the matter at hand is the right to be treated equally or the 
right to speak freely. Americans have a right to expect that the men 
and women who sit on our courts will respect the rule of law above 
their own personal or political views--and nowhere more so than on the 
Nation's highest court.

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