[Congressional Record Volume 155, Number 120 (Tuesday, August 4, 2009)]
[Senate]
[Pages S8710-S8711]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. McCONNELL. Mr. President, the Senate will soon begin debate on 
the nomination of Judge Sonia Sotomayor to be an Associate Justice of 
the Supreme Court. Before that debate begins, I wish to make a few 
observations.
  First, I thank the chairman and the ranking member of the Judiciary 
Committee, along with their respective staffs, for conducting what can 
only be described as a dignified and respectful hearing. I know it was 
gratifying to them, as it was to me, to hear Judge Sotomayor say that 
every single Senator who had promised to give her the opportunity to 
explain her views had kept that promise. It was equally gratifying to 
hear Senators Durbin and Schumer describe the hearings as respectful 
and fair.
  As I have often said, our goal in the Senate should be to disagree 
without being disagreeable. I think we hit the mark during the hearings 
on Judge Sotomayor, and the Judiciary Committee should be commended for 
it. As we begin final consideration, our goal should be the same: Those 
who support the nomination will make their case, those who oppose it 
will make theirs, and then we will vote, fulfilling our constitutional 
responsibility with the seriousness and the deliberation the American 
people expect.
  Over several weeks, I have outlined my concerns about the nominee in 
some detail. Once the hearing was over, I said that those concerns had 
only multiplied. But the primary reason I will not support this 
nomination, as I have already said, is because I cannot support the so-
called empathy standard upon which Judge Sotomayor was selected and to 
which she, herself, has subscribed in her writings and rulings.
  As I have said, the empathy standard is a very fine quality. And I 
have no doubt that Senator Obama, now President Obama, had very good 
intentions when he made the case for a so-called empathy standard as a 
Senator, a candidate, and now as President. But when it comes to 
judging--when it comes to judging--empathy is only good if you are 
lucky enough to be the person or group for whom the judge in question 
has empathy. In those cases, it is the judge, not the law, which 
determines the outcome. That is a dangerous road to go down if you 
believe, as I do, in a nation not of men but of laws.
  Judge Sotomayor has impressed all of us with her life story, but if 
empathy is the new standard, then the burden is on nominees such as she 
who are chosen on that basis to demonstrate a firm commitment to equal 
justice under the law. On the contrary, Judge Sotomayor has openly 
doubted the ability of judges to adhere to this core principle, and she 
has even doubted the wisdom of them doing so.
  In her writings and in her speeches, Judge Sotomayor has repeatedly 
stated that there is no objectivity or neutrality in judging. Let me 
say that again. Judge Sotomayor has repeatedly stated that there is no 
objectivity or neutrality in judging. She has said her experiences will 
affect the facts she chooses to see as a judge. Her experiences will 
affect the facts she chooses to see as a judge. She has argued that in 
deciding cases judges should bring their sympathies and prejudices to 
bear. She has dismissed judicial impartiality as an ``aspiration'' that 
cannot be met even in most cases. She has even questioned whether a 
judge trying to be as fair as possible in applying the law does a 
disservice both to the law and to society. These statements suggest not 
just a sense that impartiality is not possible but that it is not even 
worth the effort.
  Nothing could be more important in evaluating a judicial nominee than 
where they stand on the question of equal justice. As I have said, 
Americans expect one thing when they walk into a courtroom--whether it 
is traffic court or the Supreme Court--and that is equal treatment 
under the law.

[[Page S8711]]

Americans have accepted serious ideological differences in Supreme 
Court nominees over the years. But one thing they will never, ever 
tolerate is a belief that some groups are more deserving of a fair 
shake than others. Nothing could be more offensive to the American 
sensibility than that.
  Judge Sotomayor is certainly a fine person with an impressive story 
and a distinguished background. But a judge must be able to check his 
or her personal or political agenda at the courtroom door and do 
justice evenhandedly, as the judicial oath requires. This is the most 
fundamental test. It is a test that Judge Sotomayor does not pass.
  I yield the floor.

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