[Congressional Record Volume 155, Number 117 (Thursday, July 30, 2009)]
[Senate]
[Pages S8502-S8504]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. ALEXANDER. Madam President, I have a statement to make about the 
President's nomination of Judge Sonia Sotomayor to be Associate Justice 
of the U.S. Supreme Court.
  Even though Judge Sotomayor's political and judicial philosophy may 
be different from mine, especially regarding second amendment rights, I 
will vote to confirm her because she is well qualified by experience, 
temperament, character, and intellect to serve as an Associate Justice 
of the U.S. Supreme Court.
  In 2005, I said on this floor that it was wrong for then-Senator 
Obama and half the Democratic Senators to vote against John Roberts--a 
superbly qualified nominee--solely because they disagreed with what 
Senator Obama described as Roberts' ``overarching political 
philosophy'' and ``his work in the White House and the Solicitor 
General's Office'' that ``consistently sided'' with ``the strong in 
opposition to the weak.'' Today, it would be equally wrong for me to 
vote against Judge Sotomayor solely because she is not ``on my side'' 
on some issues.
  Courts were never intended to be political bodies composed of judges 
``on your side'' who would reliably tilt your way in controversial 
cases. Courts are supposed to do just the opposite: decide difficult 
cases with impartiality.
  The oath Judge Sotomayor has taken twice and will take again when she 
is sworn in as Associate Justice of the Supreme Court says it best:

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

  During her confirmation hearings, Judge Sotomayor expressly rejected 
then-Senator Obama's view that in a certain percentage of judicial 
decisions, ``the critical ingredient is supplied by what is in a 
judge's heart . . . and [in] the depth and breadth of one's empathy.'' 
In answer to a question from Senator Kyl, she said in her confirmation 
hearing:

       I can only explain what I think judges should do, which is 
     judges can't rely on what's in their heart. They don't 
     determine the law. Congress makes the laws. The job of a 
     judge is to apply the law. And so it's not the heart that 
     compels conclusions in cases. It's the law. The judge applies 
     the law to the facts before that judge.

  Giving broad Senate approval to obviously well-qualified nominees 
helps

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to increase the prestige of the Supreme Court and to confirm its 
impartiality. For that reason, until the last few years, Republican and 
Democratic Senators, after rigorous inquiries into the fitness of 
nominees, usually have given those well-qualified nominees an 
overwhelming vote of approval. For example, no Justice on the Supreme 
Court that John Roberts joined in 2005 had received more than nine 
negative votes. Four were confirmed unanimously. All but three 
Republican Senators voted for Justice Ginsburg, a former general 
counsel of the American Civil Liberties Union. Every single Democratic 
Senator voted to confirm Justice Scalia.
  In truly extraordinary cases, Senators, of course, reserve the 
prerogative, as I do, to vote no or even to vote to deny an up-or-down 
vote.
  During the 8 years I was Governor of Tennessee, I appointed about 50 
judges. In doing so, I looked for the same qualities Justice Roberts 
and Judge Sotomayor have demonstrated: intelligence, good character, 
restraint, respect for law, and respect for those who came before the 
court. I did not ask one applicant how he or she would rule on abortion 
or immigration or taxation. I appointed the first female circuit judge 
in our State and the first African-American court chancellor and the 
first African-American State supreme court justice. I appointed both 
Democrats and Republicans. That process served our State well and 
helped to build respect for the independence and fairness of our 
judiciary.
  In the same way, it is my hope that my vote now will not only help to 
confirm a well-qualified nominee but will help to return the Senate to 
the practice only recently lost of inquiring diligently into 
qualifications of a nominee and then accepting that elections have 
consequences, one of which is to confer upon the President of the 
United States the constitutional right to nominate Justices of the 
Supreme Court.
  Madam President, I ask unanimous consent to have printed in the 
Record my floor remarks in support of Judge John Roberts on September 
27, 2005.
  There being no objection, the material was ordered to be printed in 
the Record, as follows;

Floor Remarks of U.S. Senator Lamar Alexander in Support of Judge John 
                      Roberts, September 27, 2005

        My constituents have been asking me: who will President 
     Bush nominate for the second Supreme Court vacancy? And the 
     question reminds me of the kicker from California who went to 
     Alabama to play for Coach Bear Bryant. Day after day in 
     practice, the kicker kept punting it more than 70 yards. Day 
     after day, Bryant never said a word. Finally, the young man 
     went to Bryant. Coach, I came all the way here from 
     California to be coached by you and you never say a word to 
     me. ``Son,'' Bryant said, ``When you start kicking it less 
     than 70 yards, I will remind you of what you were doing when 
     you kicked it 70 yards.''
       My only respectful suggestion to President Bush is that he 
     try to remember what he was thinking when he appointed John 
     Roberts, and to do it again. For anyone who has been trained 
     in the law, as I have, and who knows something about the 
     profession, it has been a pleasure to watch Judge Roberts' 
     nomination and his confirmation process. It is difficult to 
     overstate how good Judge Roberts seems to be. He has the 
     resume of most talented law students' dreams: editor of the 
     Harvard Law Review and clerk to Judge Henry Friendly. I was a 
     law clerk to Judge John Minor Wisdom in New Orleans who 
     regarded Henry Friendly as one of the two or three best 
     appellate judges of the last century. Judge Roberts learned 
     from Judge Friendly. Then he was law clerk to the last Chief 
     Justice. Add to that his work in the Solicitor General's 
     office where only the best of the best are invited to work. 
     Then add his success as an advocate before the Supreme Court 
     both in private and in public practice. Then still further 
     add his demeanor, his modesty both in philosophy and in 
     person--something that is not always so evident in a person 
     of superior intelligence and great accomplishment. And his 
     kindnesses to individuals with whom he has worked. His 
     performance before the Senate Judiciary Committee 
     demonstrated all of those qualities: restraint, good humor, 
     intelligence, and a command of the body of law that a Supreme 
     Court justice must consider. The televised episodes could be 
     the basis for a law school course or any civics class.
       Judge Roberts brings, as he repeatedly said, no agenda to 
     the Supreme Court. He understands that he did not write the 
     Constitution, and it's not his job to rewrite it but to 
     interpret it. That he does not make laws, but is obligated to 
     apply them. He understands the federal system.
       For a devotee of the law, watching the John Roberts 
     hearings was like watching Michael Jordan play basketball at 
     the University of North Carolina in the early 1980s or Chet 
     Atkins as a session guitarist in the 1950s in Nashville. One 
     doesn't have to be a great student of the law to recognize 
     there is unusual talent here.
       So then if Judge Roberts' professional qualifications and 
     temperament are so universally acclaimed why do we now hear 
     so much talk of changing the rules and voting only for those 
     justices who we can be assured are ``on our side.'' That 
     would be the wrong direction for our country. In the first 
     place, history teaches us that those who try to predict how 
     Supreme Court nominees will decide cases are almost always 
     wrong. Felix Frankfurter surprised Franklin Roosevelt. Hugo 
     Black surprised the South. David Souter surprised almost 
     everybody.
       In the second place, courts were never intended to be set 
     up as political bodies that could be relied upon to always 
     tilt one way or another in controversial matters. Courts are 
     supposed to do just the opposite: to hear the facts and 
     impartially apply the law and the Constitution in 
     controversial matters. Who will have confidence in a system 
     of justice that is deliberately rigged to be on one side or 
     the other despite what the facts and the law are?
       Finally, failing to give overwhelming approval to an 
     obviously well-qualified nominee like Judge Roberts just 
     because he is ``not on your side'' reduces the prestige of 
     the Court. It jeopardizes its independence. It makes it less 
     effective as it seeks to perform its indispensable role in 
     our constitutional republic.
       For these three reasons Republican and Democratic senators, 
     after rigorous hearings and discussions, have traditionally 
     given well-qualified nominees for Supreme Court justice an 
     overwhelming vote of approval. I'm not talking about the 
     ancient past, I'm speaking of justices who are on the Court 
     today, none of whom are better qualified than Judge Roberts.
       Justice Breyer--Confirmed by a vote of 87-9 in a Congress 
     composed of 57 Democrats and 43 Republicans.
       Justice Ginsburg--Confirmed by a vote of 96-3 in that same 
     Congress.
       Justice Souter--Confirmed by a vote of 90-9 in a Congress 
     composed of 55 Democrats and 45 Republicans.
       Justice Kennedy--Confirmed by a vote of 97-0 in a Congress 
     composed of 55 Democrats and 45 Republicans.
       Justice Scalia--Confirmed by a vote of 98-0 in a Congress 
     composed of 47 Democrats and 53 Republicans.
       Justice O'Connor--Confirmed by a vote of 99-0 in a Congress 
     composed of 46 Democrats and 53 Republicans.
       Justice Stevens--Confirmed by a vote of 98-0 in a Congress 
     composed of 61 Democrats and 37 Republicans.
       The only close vote on this Court was for the nomination of 
     Justice Thomas following questions of alleged misconduct by 
     the nominee. Thomas was confirmed by a vote of 52-48. 
     However, even in that vote, 11 Democrats crossed the aisle to 
     support the nominee.
       If almost all Republican senators can vote for Justice 
     Ginsburg, a former General Counsel for the American Civil 
     Liberties Union, and a nominee who declined to answer 
     numerous questions so as not to jeopardize the independence 
     of the court on cases that might come before her, and if 
     every single Democratic U.S. senator could vote for Justice 
     Scalia--then why can't virtually every senator in this 
     chamber vote to confirm Judge Roberts?
       I was governor for eight years in Tennessee. I appointed 
     about fifty judges. I looked for the same qualities Judge 
     Roberts has demonstrated: intelligence, good character, 
     restraint, respect for the law, and respect for those who 
     came before the court. I did not ask one applicant how he or 
     she would rule on abortion or immigration or taxation. I 
     appointed the first woman circuit judge, as well as men. I 
     appointed Tennessee's first African American chancellor and 
     the first African American state Supreme Court justice. I 
     appointed Republicans and Democrats. That process served our 
     state well and helped build respect for the independence and 
     fairness of our judiciary. I would hope we would try to do 
     the same as we consider this nomination for the United States 
     Supreme Court.
       It is unlikely in our lifetimes, that we will see a nominee 
     for the Supreme Court whose professional accomplishments, 
     demeanor and intelligence is superior to that of John 
     Roberts. If that is so, then I would hope that my colleagues 
     on both sides of the aisle will do what they did with all but 
     one member of the current Supreme Court, and with most of the 
     previous justices in our history, and vote to confirm him by 
     an overwhelming majority.
  Mr. ALEXANDER. Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Ms. KLOBUCHAR. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Ms. KLOBUCHAR. Madam President, I ask to speak as in morning 
business.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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