[Congressional Record Volume 155, Number 120 (Tuesday, August 4, 2009)]
[Senate]
[Pages S8730-S8755]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

NOMINATION OF SONIA SOTOMAYOR TO BE AN ASSOCIATE JUSTICE OF THE SUPREME 
                       COURT OF THE UNITED STATES

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination which 
the clerk will report.
  The legislative clerk read the nomination of Sonia Sotomayor, of New 
York, to be an Associate Justice of the Supreme Court of the United 
States.
  The PRESIDING OFFICER. Under the previous order, the first hour will 
be under the control of the chair and the ranking member of the 
committee.
  Mr. LEAHY. I thank the distinguished Presiding Officer, also himself 
a member of the Judiciary Committee. He sat through and participated in 
all of the hearings on Judge Sotomayor.
  When the Judiciary Committee began the confirmation hearing on the 
nomination of Judge Sotomayor to the Supreme Court, in my opening 
statement I recounted an insight from Dr. Martin Luther King, Jr. I did 
this because it is often quoted by President Obama, the man who 
nominated her. The quote is:

       Let us realize the arc of the moral universe is long, but 
     it bends towards justice.

  Each generation of Americans has sought that arc toward justice. 
Indeed, that national purpose is inherent in our Constitution. In the 
Constitution's preamble, the Founders set forth to establish justice as 
one of the principal reasons that ``We the people of the United 
States'' joined together to ``ordain and establish'' the Constitution. 
This is intertwined in the American journey with another purpose for 
the Constitution that President Obama often speaks about. We all admit 
it is the unfinished goal of forming ``a more perfect Union.'' Our 
Union is not yet perfected, but we are making progress with each 
generation.
  That journey began with improvements upon the foundation of our 
Constitution through the Bill of Rights and then it continued with the 
Civil War amendments, the 19th amendment's expansion of the right to 
vote for women, the Civil Rights Act of 1964, the Voting Rights Act of 
1965, and the 26th amendment's extension of the vote to young people. 
These actions have marked progress along the path of inclusion. They 
recognize the great diversity that is the strength of our Nation.
  Judge Sotomayor's journey to this nomination is truly an American 
story. She was raised by a working mother in the Bronx after her father 
died when she was a child. She rose to win top honors as part of one of 
the first classes of women to graduate from Princeton. She excelled at 
Yale law school. She was one of the few women in the Manhattan District 
Attorney's Office in the mid-1970s. She became a Federal trial judge 
and then the first Latina judge on a Federal appeals court when she was 
confirmed to the second circuit over a decade ago.
  I might note on a personal basis, I am a member of the bar of the 
second circuit, as well as the Federal District Court of Vermont. That 
is the circuit I belong to as a member of the Vermont bar. I know how 
excited we were in the second circuit when she became a judge.
  She is now poised to become the first Latina Justice and actually 
only the third woman to serve on the U.S. Supreme Court. She has broken 
barriers along the way. She has become a role model to many. Her life 
journey is a reminder to all of the continuing vitality of the American 
dream.
  Judge Sotomayor's selection for the Supreme Court also represents 
another step toward the establishment of justice. I have spoken over 
the last several years about urging Presidents--I have done this with 
Presidents of both political parties--to nominate somebody from outside 
the judicial monastery to the Supreme Court. I believe that experience, 
perspective, an understanding of how the world works and how people 
live--how real people live and the effect decisions will have on the 
lives of people--these have to be very important qualifications.
  One need look no further than the Lilly Ledbetter and the Diana 
Levine cases to understand the impact each Supreme Court appointment 
has on the lives and freedoms of countless Americans.
  In the Ledbetter case, five Justices on the Supreme Court struck a 
severe

[[Page S8731]]

blow to the rights of working families  across our country. In effect, 
they said we can pay women less than men for the exact same work. 
Congress acted to protect women and others against discrimination in 
the workplace more than 40 years ago, yet we still struggle to ensure 
that all Americans, women and men, receive equal pay for equal work. It 
took a new Congress and a new President to strike down the immunity the 
Supreme Court had given to employers who discriminate against their 
workers and successfully hide their wrongdoing.

  The Supreme Court had allowed them to do that. We changed that again. 
I remember the pride I had when I stood beside President Obama when he 
signed his first piece of legislation into law, the Lilly Ledbetter 
law, which says something that every one of us should know 
instinctively in our heart and soul: that women should be paid the same 
as men for the same kind of work.
  But for all the talk about ``judicial modesty'' and ``judicial 
restraint'' with the nominees of a Republican President at their 
confirmation hearings, we have seen a Supreme Court these last 4 years 
that has been anything but modest and restrained.
  I understand decrying judicial activism when judges have simply 
substituted their judgment for that of elected officials. That is what 
we have seen these last few years from the conservative members of the 
Supreme Court.
  When evaluating Judge Sotomayor's nomination, I believe Senators 
should consider what kind of Justice she will be. Will she be in the 
mold of these activists who have gutted legislation designed to protect 
Americans from discrimination in their jobs and in voting, laws meant 
to protect the access of Americans to health care and education, and 
laws meant to protect the privacy of all Americans from an overreaching 
government? I think not and I hope not.
  The reason I think not and hope not is I have been looking at what 
kind of judge she has been for the last 17 years and that is not the 
kind of judge she has been for 17 years. Keep in mind, this is a 
nominee who has had more experience on the Federal court than any 
nominee to the Supreme Court in decades. What we see is she has applied 
the law to the facts of the cases she has considered. She has done that 
while understanding the impact of her decisions on those before the 
court.
  Those who struggle to pin the label of judicial activist on Judge 
Sotomayor are met by her very solid record of judging based on the law. 
She is a restrained, experienced, and thoughtful judge who has shown no 
bias in her rulings.
  The charge of some Senate Republican leaders that they fear she will 
show bias is refuted over and over again in her record of 17 years. In 
fact, her record as a judge is one of rendering decisions impartially 
and neutrally. No one has pointed to decisions that evidence bias. No 
one has shown any pattern of her inserting her own personal preferences 
into her judicial decisions. No one can because that does not exist. 
That is not who she is nor is it the type of judge she has been.
  As her record demonstrates and her testimony before the Judiciary 
Committee reinforced, she is a restrained and fair and impartial judge 
who applies the law to the facts to decide cases--the kind of judge 
that any one of us who practiced law would want to appear before, 
whether we were plaintiff or defendant, government or respondent, rich 
or poor. Ironically, the few decisions for which she has been 
criticized are cases in which she did not reach out to change the law 
or to defy judicial precedent; in other words, cases in which she 
refused to ``make law'' from the bench.
  In her 17 years on the bench there is not one example, let alone a 
pattern, of her ruling based on bias or prejudice or sympathy. She has 
been true to her oath. She has faithfully and impartially performed her 
duties under the Constitution.
  As a prosecutor--a distinguished prosecutor--and then as a judge, she 
has administered justice without favoring one group of persons over 
another. In fact, she testified directly to this point. She said:

       I have now served as an appellate judge for over a decade, 
     deciding a wide range of constitutional, statutory and other 
     legal questions. Throughout my 17 years on the bench, I have 
     witnessed the human consequences of my decisions. Those 
     decisions have not been made to serve the interest of any one 
     litigant, but always to serve the larger interests of 
     impartial justice.

  About 12 years ago in a case called City of Boerne v. Florida, the 
Supreme Court struck down the Religious Freedom Restoration Act, a law 
that Congress had passed to protect religious freedom. Since then, an 
activist conservative group of Justices has issued a number of rulings 
that further restricted the power of Congress under section 5 of the 
14th amendment.
  They have limited other important Federal statutes such as the 
Violence Against Women Act, and they have done this by using a test 
created out of whole cloth, without any root in either history or in 
the text of our Constitution. Scholars across the political spectrum 
have criticized the Supreme Court's rulings in this line of cases, 
including Judge Michael McConnell and Judge John Noonan, Jr., both 
Republican appointees to the Federal bench.
  Let's have some history. Hundreds of thousands of Americans lost 
their lives fighting a civil war to end the enslavement of millions of 
Americans. After the war, we transformed our founding charter, the 
Constitution, into one that embraced equal rights and human dignity 
through the reconstruction amendments by not only abolishing slavery 
but also by guaranteeing equal protection of the law for all Americans 
and prohibiting the infringement of the right to vote on the basis of 
race.
  But these reconstruction amendments to our Constitution are not self-
implementing. Both the 14th and 15th amendments to the Constitution 
contain sections giving Congress the power to enforce the amendments. 
Congress acts to secure Americans' voting rights when it passes 
statutes like the Voting Rights Act pursuant to its authority to 
implement the 14th and 15th amendment's guarantees of equality. 
Congress acts to ensure the basis for our democratic system of 
government when we provide for implementation of this principle.
  In contrast to the resistance that met the initial enactment of the 
Voting Rights Act of 1965--something that brought about enormous debate 
in this country--3 years ago, Republicans and Democrats in the Senate 
and House of Representatives came together to reauthorize key expiring 
provisions of the Voting Rights Act. This overwhelmingly bipartisan 
effort sought to preserve the rights of all Americans to equal access 
to the democratic process.
  I stood with President George W. Bush when he proudly signed that 
restoration. But earlier this year, I attended the oral argument in a 
case challenging the constitutionality of the reenacted Voting Rights 
Act.
  It appeared from the questions posed by the conservative Justices 
that they were ready to apply the troubling line of rulings in which 
they have second guessed Congress in order to strike down a key 
provision of the Voting Rights Act, one of this country's most 
important civil rights laws. Lacking a fifth vote for such a seismic 
shift, the constitutional ruling was avoided. But I remain concerned 
that the Supreme Court nonetheless remains poised to overturn other 
decisions made by Congress in which we decide how best to protect the 
rights and well-being of all American people.
  I believe Judge Sotomayor will be a Justice who will continue to do 
what she has done as a judge for the last 17 years. I believe she will 
show appropriate deference to Congress when it passes laws to protect 
the freedoms of Americans.
  I also believe she will have an understanding of the real world 
impact of the Supreme Court's decisions, which will be a welcome 
addition. When she was designated by the President, Judge Sotomayor 
said:

       The wealth of experiences, personal and professional, have 
     helped me appreciate the variety of perspectives that present 
     themselves in every case that I hear. It has helped me to 
     understand, respect and respond to the concerns and arguments 
of all litigants who appear before me, as well as the views of my 
colleagues on the bench. I strive never to forget the real-world 
consequences of my decisions on individuals, businesses, and 
government.

  Well, it took a Supreme Court that understood the real world to see 
that

[[Page S8732]]

the seemingly fair-sounding doctrine of ``separate but equal'' was in 
reality a straitjacket of inequality and it was offensive to the 
Constitution.
  We had ``separate but equal.'' For years in this country, we had 
segregation. We had segregation in our schools. It was a blight on the 
idea of a colorblind Constitution. And all Americans have come to 
respect the Supreme Court's unanimous rejection of racial 
discrimination and inequality in Brown v. Board of Education. That was 
a case about the real-world impact of a legal doctrine.
  But just 2 years ago, in the Seattle school desegregation case, we 
saw a narrowly divided Supreme Court undercut the heart of the landmark 
Brown v. Board decision, a decision that was unanimous. The Seattle 
school district valued racial diversity and was voluntarily trying to 
maintain diversity in its schools. By a five-to-four vote, the 
conservative activists on the Court said that program was prohibited. 
That decision broke with more than half a century of equal protection 
jurisprudence, and I believe it set back the long struggle for equality 
in this country.
  Justice Stevens wrote that the Chief Justice's opinion twisted Brown 
v. Board in a ``cruelly ironic'' way.
  I think most Americans understand that there is a crucial difference 
between a community that does its best to ensure that schools include 
children of all races and one that prevents children of some races from 
attending certain schools. I mean, real-world experience tells us that. 
Those of us who are parents, grandparents, we know this.
  Justice Breyer's dissent criticized the Chief Justice's opinion as 
applying an ``overly theoretical approach to case law, an approach that 
emphasizes rigid distinctions . . . in a way that serves to mask the 
radical nature of today's decision. Law is not an exercise in 
mathematical logic.''
  Actually, I might say, if it were, we could just have computers on 
our Supreme Court.
  Chief Justice Warren, a Justice who came to the Supreme Court with 
real-world experience as a State attorney general and Governor, 
recognized the power of a unanimous decision in Brown v. Board.
  The Roberts Court, in its narrow desegregation decision 2 years ago, 
ignored the real-world experience of millions of Americans and chose to 
depart from the most hallowed precedents of the Supreme Court.
  I am hopeful and confident that when she serves as a Justice on the 
Supreme Court of the United States, Sonia Sotomayor, a woman from the 
South Bronx who has overcome so much, will be mindful of the real-world 
experiences of Americans.
  Those critics who devalue her judicial record and choose to 
misconstrue a few lines from speeches, ignore the aspiration behind 
those speeches. In fact, Judge Sotomayor begins the part of the speech 
so quoted by critics with the words ``I would hope.'' She would 
``hope'' that she and other Latina judges would be ``wise'' in their 
decision-making and that their experiences would help inform them and 
help provide that wisdom. I hope so, too. Just as I hope that Justices 
Thomas' early life leads him to, as he testified in his confirmation 
hearing, ``stand in the shoes of other people.'' And I hope that 
Justice Alito's immigrant heritage, as he too discussed in his 
confirmation hearing, helps him understand the plight of the powerless 
in our society.
  Judge Sotomayor also said in her speeches that she embraced the goal 
that: ``[J]udges must transcend their personal sympathies and 
prejudices and aspire to achieve a greater degree of fairness and 
integrity based on the reason of law.'' I am going to be saying more 
about this as we go along, but I would note that her critics missed 
that Judge Sotomayor was pointing out a path to greater fairness and 
fidelity to the law by acknowledging that despite the aspirations of 
impartiality she shares with other judges, judges are human. Her 
critics seem to ignore her modesty in claiming not to be perfect. I 
would like to know which one of the 100 U.S. Senators could claim to be 
perfect. There are some who could; I am not one of them.
  By acknowledging that judges come to the bench with experiences and 
personal viewpoints, they can be on guard against those views 
influencing judicial outcomes. By striving for a more diverse bench 
drawn from judges with a wider set of backgrounds and experiences, we 
can better ensure that the decisions of the Court will be freer of 
limited viewpoints or narrow biases.
  All Supreme Court nominees have talked about the value they will 
bring to the bench from their backgrounds and experiences. That 
diversity of experience is a strength, not a weakness, in achieving an 
impartial judiciary. A more diverse bench with a better understanding 
of the real world impact of decisions can help avoid the pitfalls of 
the Supreme Court's decisions these last years.
  Let me point to just one example because judges--just as Senators 
bring their experience to this body--judges do, too.
  Judge Sotomayor sat on a three-judge panel that heard a case 
involving strip searches of adolescent girls in a juvenile detention 
center. The parents of two female children challenged Connecticut's 
blanket strip search policy for all those admitted to juvenile 
detention centers as a violation of the fourth amendment's prohibition 
against unreasonable searches. Two of the male judges on the Second 
Circuit upheld the strip searches of the young girl.
  In dissent, Judge Sotomayor cited controlling circuit precedent 
describing what is involved in the strip searches of these girls who 
had never been charged with a crime--keep in mind that they had never 
been charged with a crime--and without any basis for individual 
suspicion. She said that courts ``should be especially wary of strip 
searches of children, since youth is a time and condition of life when 
a person may be most susceptible to influence and to psychological 
damage.'' She also emphasized that since many of these girls had been 
victims of abuse and neglect, they may be more vulnerable mentally and 
emotionally than other youths their age.
  The Supreme Court recently decided a similar case, the Redding case. 
They found that school officials violated the fourth amendment rights 
of a young girl by conducting an intrusive strip search of her 
underclothes while looking for the equivalent of a pain reliever many 
of us have in our medicine cabinet. During oral arguments in that case, 
one of the male Justices compared the search to simply changing for gym 
classes. Several of the other Justices answered with laughter--not the 
reaction I would have if that was my adolescent daughter. And Justice 
Ginsburg, the lone female Justice on the Supreme Court, described the 
search as humiliating to young girls. She spoke out. She did not join 
in that laughter.
  Ultimately, the Supreme Court decided that case by a vote of 8 to 1. 
Justice Souter, the Justice whom Judge Sotomayor is nominated to 
replace, wrote the opinion for the Court. Of course, that position 
mirrored that of Judge Sotomayor. I suspect that it was Justice 
Ginsburg's understanding of the intrusiveness of the strip search of 
the young girl that ultimately prevailed. Can we say our life 
experience bears no weight in what we do?
  Among the very first purposes of the Constitution is ``to establish 
justice.'' It is a purpose that has animated the improvements we have 
made over generations to our Constitution. It is a purpose engraved in 
the words over the entrance of the Supreme Court. These words are in 
Vermont marble, and they say, ``Equal Justice Under Law.'' All the 
dozens and dozens of times I have walked into the Supreme Court, up 
those steps straight out across from this Chamber, I have always paused 
to read those words, ``Equal Justice Under Law.'' Is that not what we 
should stand for?
  I hope and believe Judge Sotomayor understands the critical 
importance of both fairness and justice. A decade ago, she gave another 
speech in which she spoke about the meaning of justice. She said, 
``Almost every person in our society is moved by that one word. It is a 
word embodied with a spirit that rings in the hearts of people. It is 
an elegant and beautiful word that moves people to believe that the law 
is something special.''
  I believe Judge Sotomayor will live up to those words when she is 
confirmed, as she will be confirmed to the U.S. Supreme Court. The 
senior Senator from Vermont will vote for that confirmation.

[[Page S8733]]

  I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Alabama is 
recognized.
  Mr. SESSIONS. I appreciate the opportunity to speak. Before I do, I 
want to say that we had some disagreements as we went along about how 
to conduct the hearings. But Chairman Leahy made a commitment that we 
would have a fair hearing, that every Senator would have an opportunity 
to question the witnesses and have the time to follow up, and he 
complied with that. I think we had a good hearing.
  Judge Sotomayor was voted out of the committee, and I appreciate her 
kind words to me and to our colleagues on how she felt she was treated. 
I think the hearings were fair and effectively discussed the important 
issues raised by this nomination.
  Our confirmation process began with the President indicating that 
empathy was a standard that he believes should be applied to selecting 
judges. There is some disagreement about that. I am one of those who do 
not believe that is a legal standard. It is a kind of standard that is 
closer to a political standard, and we need to be careful that politics 
do not infect the judiciary.
  I certainly do not profess to be able to say with certainty how Judge 
Sotomayor will perform if confirmed to the Supreme Court.
  History shows that Justices, once confirmed, often surprise. I have 
previously expressed my evaluation and decision in this matter. I will 
just say I hope I am wrong. But I have concluded that the nominee has a 
fully formed judicial philosophy, one that is held by quite a few other 
lawyers and judges, but it is a philosophy contrary to the classical 
underpinnings of the American legal system, a system that has blessed 
us so much. Edmond Burke, in his famous speech ``On Conciliation with 
the Colonies,'' urged the King to avoid war, noting that the Colonies 
were simply asserting the rights to which they had become accustomed. 
He observed that almost as many copies of Blackstone's Commentaries on 
the Laws were being sold in America as in England.
  From the beginning, Americans have honored law because, I suspect, it 
was the arena in which the poor individual citizen could and often did 
prevail against the powerful. Even before the Revolution, judges, 
juries, and English law decided cases. It was a people's power 
controlled by law that would prevail even over the political wishes of 
the powerful. Laws, Burke noted, were to be created by the people 
through their elected representatives, not judges. Law in the new 
Republic was not an abstract. It was concrete. The laws meant what they 
said. If by some loophole even an evil act was not covered by criminal 
law, the prisoner was to go free.
  Importantly, our system rested upon a near universally held belief 
that law and order were necessary for freedom and progress to occur. It 
further rested on the firm belief that there was such a thing as 
objective truth and that if a real effort was put forth, truth could be 
ascertained. For most, this was an easy concept, since a belief in God, 
the ultimate truth, was widespread. Thus, the legal system was arranged 
to best discover truth. Rules of evidence, cross-examination, and the 
adversarial system were parts of the design to discover truth. Many 
nations have tried to replicate it without success. It is a national 
treasure, our legal system.
  I believe our Federal courts are the greatest dispensers of justice 
the world has ever known. For 15 years, I practiced full time as a 
Federal attorney before Federal judges. I saw the system operate. I 
have seen State and local judges, Republicans and Democrats, serve 
faithfully day after day, adhering to the ideal of objectivity, 
fairness, and law. But many intellectuals in recent decades look upon 
such an approach as anti-intellectual. They conclude such thinking that 
judges actually do in an ideal way, they find this is hopelessly naive. 
They think it is unrealistic. The brilliant jurist and intellectual 
Jerome Frank, quoted favorably by Judge Sotomayor in a law review 
article, said as much in the early part of the last century.
  Since then, many theorists have gone even further, moral relativists, 
postmodernists, deconstructionists, critical legal studies adherents, 
they all come from the same pond. They don't believe--some don't--that 
there is an ascertainable truth. They believe these ideals actually 
confuse thinking and mislead. They believe it is results that count.
  I don't agree. The American people don't agree. Ideals are important. 
High standards can be reached. Not every time, I am sure, but most 
times. If the ideal is not ardently sought, it will be reached less and 
less. The American people are not cynics who settle for less than the 
ideal of impartiality and equal justice for the poor and the rich under 
the Constitution and the laws of this country. Each judge operates 
under the Constitution and laws of this country. They expect, rightly, 
that every judge will be fully committed to the heritage of law and the 
judicial oath they take to follow it.
  That is why I have expressed the view since this process has begun, 
that we are at a fork in the road, perhaps. Will we continue to adhere 
to the classical ideal of American jurisprudence, or will we follow 
results-oriented judging, where judges cease to be committed to the law 
and equal justice because they know it is not possible. Do they believe 
words are just words? Do they believe the Constitution can be made to 
say what one wants it to say? In this world, the Constitution cannot 
bind a judge to what the judge considers an unwise result. Instead, we 
should see the Constitution as a flexible, living document. Under this 
view, judges are not just umpires. Judges are more powerful. Judges can 
make the Constitution and law say what they would prefer it to say. 
Judges can ensure that the right team wins. Judges can make policy. 
That is the seductive siren call of judicial activism, and judicial 
activism is an impropriety that can be embraced by conservatives as 
well as liberals.
  Our former chairman, Senator Hatch, has often said: Activism is a 
tendency in a judge to allow their personal and political views and 
values to override the law and the facts of a case to achieve a result 
they think is desirable. That is what is not acceptable in our system.
  That is why, at the most fundamental level, many have a problem with 
this nominee. It seems clear from her writings and speeches that she is 
a devotee of the new philosophy of judging. Her speeches, over the 
years, are quite clear on this matter, although her hearing testimony 
backtracked from it in a somewhat confusing manner.
  Regrettably, I was not able to support her nomination in committee, 
nor will I support her nomination before the full Senate. I would like 
to discuss in greater detail a few of the reasons that lead me to that 
conclusion. There are more things that will be discussed later as we go 
along, but let me say a few things now.
  Even before the nomination of Judge Sotomayor, I made clear what my 
criteria would be for assessing a Supreme Court nominee: impartiality, 
commitment to the rule of law, integrity, legal experience, and 
judicial temperament. Judge Sotomayor possesses the well-rounded resume 
I like to see in a Supreme Court Justice. She has a wonderful personal 
story. She was a prosecutor. She was a private practitioner. She was a 
trial judge, and she was an appellate judge. Those are good experiences 
for a judge on the Supreme Court. However, her speeches and cases she 
has decided are troubling because they reflect the lack of a proper 
sense of the clearly stated constitutional rights that are guaranteed 
to American citizens. Her testimony was her opportunity to convince us 
she would be the type of Justice we could vote for. Instead her answers 
lacked clarity, the consistency and courage of conviction one looks for 
in a nominee to the Supreme Court.
  In many instances, she raised more questions through her testimony 
than she answered. Judge Sotomayor's expressed judicial philosophy 
rejects openly the ideal of impartial and objective justice. Instead, 
her philosophy embraces and accepts the impact that background, 
personal experience, gender, sympathies, and prejudices--these are her 
words--have on judging. A fair and plain reading of these speeches--
read in context--calls into question Judge Sotomayor's commitment to 
impartiality and objectivity. When given an opportunity to explain this 
philosophy, as was reflected in speech after

[[Page S8734]]

speech, year after year, Judge Sotomayor dodged and deflected. In many 
cases, her answers could not be squared with the facts.
  It has been suggested we should disregard those speeches. It has been 
suggested they are just words, that they are merely meant to inspire. 
In short, it has been suggested the words of the speeches simply do not 
matter. But words do matter. Words are important. They must have 
meaning or the result is chaos. No one should know this more than a 
judge. Her speeches and academic writings were not offhand comments 
delivered without the aid of notes. They were carefully crafted to 
dispute the notion that impartiality is realistic, or even possible. 
These were not the musings of a second-year law student. They were all 
delivered after she was a Federal judge. They were delivered to a 
number of different audiences, a number of different forums, including 
a bar association.
  In her speeches and academic articles, Judge Sotomayor describes 
other approaches to judging and her approach to the law. She describes 
the factors judges should consider when reaching decisions. She 
describes her fully formed judicial philosophy. She challenges the 
mainstream concept of judging.
  Make no mistake, judicial philosophy matters. It guides judges. It 
tells them what to consider. Importantly, it tells them what not to 
consider. Judicial philosophy is quite different from a judge's 
personal, political, moral or social views that a judge is to set aside 
when they decide a case. That is what blindfolded justice means. When a 
judge puts on that robe, they are, in effect, saying to everyone in 
that courtroom that their personal biases and prejudices and so forth 
will not impact the fairness of the ruling they are called upon to 
make.

  Judges in trial and appellate courts, of course, are constrained by 
precedent. Even if a trial or appellate judge harbors a radical 
approach to the law, the threat of reversal restricts that judge's 
ability to employ that philosophy. But on the Supreme Court, however, 
these restrictions are removed. On the Supreme Court, there is no 
additional review. On the Supreme Court, a judicial philosophy that is 
fully formed is permitted to reach full bloom. As a liberal law dean 
recently said in the Los Angeles Times: ``There's a huge difference 
between being a court of appeals judge who is bound by precedent and a 
Supreme Court justice who can rewrite those precedents.''
  That is why judicial philosophy matters. Frankly, after reviewing her 
consistent speeches in preparation for the confirmation hearing, I 
expected Judge Sotomayor to defend her views. I expected her to defend 
her statement that ``[t]he law that lawyers practice and judges declare 
is not a definitive, capital `L' law that many would like to think 
exists.''
  I expected her to defend the notion that the court of appeals is 
where ``policy is made.'' I expected her to defend her statements in 
favor of using foreign law to interpret American statutes and her 
statement that there is ``no objective stance, but only a series of 
perspectives.''
  However, during her testimony, many of Judge Sotomayor's answers were 
inconsistent with her record and others were evasive and not adequate. 
On several occasions, Judge Sotomayor appeared to run away from the 
philosophy she had so publicly articulated. Other answers, I concluded, 
were not plausible.
  It has been repeatedly suggested that Judge Sotomayor's words and 
speeches are being taken out of context. I have read the speeches in 
their entirety. Her words are not taken out of context. In fact, when 
one reads her speeches in their entirety, in context, the impact is 
more troubling, not less.
  For example, Judge Sotomayor said, on repeated occasions, that she 
``willingly accept[s] that . . . judge[s] must not deny the differences 
resulting from experience and heritage but attempt . . . continuously 
to judge when those opinions, sympathies and prejudices are 
appropriate.''
  When I asked whether there was ``any circumstance in which a judge 
should allow prejudices to impact decision-making,'' she replied: 
``Never their prejudices.''
  This is quite the opposite of what her speeches said. In the hearing, 
she said her speeches discussed ``the very important goal of the 
justice system . . . to ensure that the personal biases and prejudices 
of a judge do not influence the outcome of a case.'' Well said. But 
that is not what her speeches said--in context or line by line. She was 
not urging that judges guard against their prejudices, as their oath 
calls on them to do. She was accepting that a judge's prejudices may 
influence their decisions.
  Similarly, Judge Sotomayor repeatedly stated she accepts that who she 
is will ``affect the facts I choose to see'' as a judge--the facts she 
chooses to see as a judge. She accepts this. When I asked her about 
this statement, she said: ``It's not a question of choosing to see some 
facts or another, Senator. I didn't intend to suggest that.''
  But that is what she said repeatedly. She accepts the fact that who 
she is will ``affect the facts I choose to see'' as a judge. The 
context of her speech states a clear philosophy. Judge Sotomayor was 
contrasting her own views with that of Judge Cedarbaum and Justice 
O'Connor, two women judges of prominence. Of course, Justice O'Connor 
was a former member of the Supreme Court. The context was her view that 
``[i]n short . . . the aspiration''--I am quoting her--``the aspiration 
to impartiality . . . is just that, an aspiration.'' Such a statement 
evidences a lack of the kind of firm commitment to fairness and to the 
judicial oath of impartiality that is expected, in my opinion.
  We have heard again and again that our concerns are based on three 
words: The ``wise Latina woman.'' That is not the case. We are talking 
about a judicial philosophy, as reflected in speech after speech, year 
after year. That is what is causing the problem here.
  Senator Coburn, at the hearing, made a point that I think is worthy 
of emphasizing: that her refusal to effectively defend her own speeches 
and statements was almost as troubling as the philosophy contained 
within those speeches.
  As the Washington Post, in endorsing her, on July 19, in their 
editorial, said:

       Judge Sotomayor's attempts to explain away and distance 
     herself from [the ``wise Latina'' statement] were 
     unconvincing and at times uncomfortably close to 
     disingenuous, especially when she argued that her reason for 
     raising questions about gender or race was to warn against 
     injecting personal biases into the judicial process. Her 
     repeated and lengthy speeches on the matter do not support 
     that interpretation.

  In Judge Sotomayor's opening statement, she said that her philosophy 
is ``fidelity to the law.'' But her record demonstrates that, if true, 
her view is far different than mine. For example, she has advocated for 
the use of foreign law by American judges. Once again, we are left with 
statements made at the hearing, though, that were in direct conflict 
with statements made before she was nominated.
  As Judge Sotomayor noted in her April 2009 speech--April of this 
year--before the Puerto Rico American Civil Liberties Union, the 
current debate regarding the use of foreign law in the courts, she 
noted, pits two distinct views against one another. On one side sit 
Justices Scalia and Thomas, who believe that foreign law should not be 
used in interpreting the U.S. Constitution. That is correct, in my 
view. On the other side is Justice Ginsburg, who believes that courts 
should be more aggressive in their use of foreign law.
  In this speech in April, Judge Sotomayor clearly indicated who she 
thinks has the better view of the issue, stating that she ``share[s] 
more the ideas of Justice Ginsburg . . . in believing, that unless 
American courts are more open to discussing the ideas raised by foreign 
cases, and by international cases, that we are going to lose influence 
in the world.''
  Moreover, Judge Sotomayor talked approvingly about two recent Supreme 
Court cases in which Justices did look to foreign law precisely to 
interpret our Constitution. That is a very clear position. I think it 
is incorrect, but it is a clear one. Others adhere to it.
  When she came before the Judiciary Committee, however, Judge 
Sotomayor articulated a very different view of foreign law, stating:

       Foreign law cannot be used as a holding or a precedent or 
     to bind or to influence the outcome of a legal decision 
     interpreting the Constitution or American law that doesn't 
     direct you to that law.


[[Page S8735]]


  Well, that is quite a different position from the theme and 
statements in her April speech.
  So I agree with my colleagues who lamented Judge Sotomayor's tendency 
to avoid answering questions, with one colleague noting her ``extreme 
caution'' in answering. I do not think many would dispute that she was 
less forthcoming than Judges Alito and Roberts, our latest 
confirmations to the Court just a few years ago.
  In addition to her stated judicial philosophy, I am also quite 
concerned regarding how Judge Sotomayor has approached the most 
important constitutional cases that have come to her court. Most of the 
cases a court of appeals judge considers are routine, fact dominated, 
and do not offer novel questions or require substantial legal 
discussion. Still, a few important cases that present new and critical 
issues do periodically come before the courts of appeals. These cases 
can give insight into how the nominee will handle the many such cases 
that regularly come before the Supreme Court.
  Within the last 3 years, Judge Sotomayor has heard three monumentally 
important cases at the circuit level: the constitutional right to be 
free of racial discrimination, the right to keep and bear arms, and the 
fifth amendment right to keep one's own property.
  In all three of these cases, Judge Sotomayor joined or authored very 
brief opinions--very brief opinions, oddly brief opinions--that avoided 
the kind of careful analysis we would expect of an appellate judge. In 
all three cases, individuals went to court with the plain text of the 
Constitution on their side. In each case, Judge Sotomayor reached 
conclusions that denied individual Americans their rights that they 
were asserting against governmental power.
  When confronted with an appeal based on fundamental notions of equal 
protection of the laws, Judge Sotomayor, to be charitable, took a pass. 
By now we are familiar with the basic facts of the New Haven 
firefighters, the Ricci case. Eighteen firefighters brought suit 
against the city of New Haven after the city threw out the results of a 
promotional exam. It was thrown out because not enough of certain 
minorities did well enough on the exam. Judge Sotomayor's decision in 
the case is troubling. Her curious one-paragraph summary order, and the 
Supreme Court's subsequent reversal, are the starting points. But there 
is more. And there is a reason that so much attention has been focused 
on this case.
  Her initial attempted disposal of the case by summary order was, 
quite simply, unacceptable and an embarrassment. A summary order is, by 
circuit rule, only for cases in which there is no legal principle 
worthy of discussion. In the end, every Supreme Court Justice concluded 
she applied the wrong legal standard in granting a judgment against the 
firefighters and for the city before a trial occurred, and a majority 
of the Supreme Court found that the firefighters' case was so strong 
that they were entitled to a verdict for their side on the evidence 
that already existed without a trial.
  The Supreme Court understood the importance of this case--why we care 
about it as Americans. As they said of Judge Sotomayor's logic:

       Allowing employers to violate the disparate-impact 
     liability would encourage race-based action at the slightest 
     hint of disparate impact. . . .That would amount to a de 
     facto quota system. . . .

  That is the Supreme Court language.
  I was struck by something one firefighter, Lieutenant Vargas, said to 
us--that his testimony before the Senate was the first opportunity he 
had to tell his story because the district court threw out the case 
before he even had a trial. On appeal, Judge Sotomayor initially 
dismissed the case by summary order, meaning that a hard copy of her 
order was never even delivered to the other judges on the court. Had 
one of her colleagues, Judge Cabranes, apparently, independently, not 
heard about the case and sought a full review--a rehearing en banc is 
what he sought through the whole Second Circuit--it is likely the 
Supreme Court would never have even known the case existed or 
considered the case. It is also likely Lieutenant Vargas would never 
have had the opportunity to tell his story, to explain to his children 
his profound hope that, as a result of his efforts, they would be 
judged on their merit and not on their race or their ethnicity.
  In response to my questions, Judge Sotomayor also claimed that her 
Ricci decision was controlled by ``established'' Supreme Court 
precedent, saying ``a variety of different judges on the appellate 
court were looking at the case in light of established Supreme Court 
and Second Circuit precedent.'' But the Supreme Court did not see it 
that way. The Supreme Court noted that ``few, if any, precedents in the 
Court of Appeals'' discuss this issue.
  As noted commentator Stuart Taylor has recently confirmed, even if 
Judge Sotomayor had believed her panel was bound by Second Circuit 
precedent, review and rehearing by the whole Second Circuit would have 
provided the opportunity to review those previous cases afresh and to 
overrule them if they were unsound. But Judge Sotomayor cast the 
deciding vote against rehearing this case by the full circuit. She 
defended her ruling and defended whatever authority existed at the time 
in the Second Circuit.
  The case is also troubling to me because Judge Sotomayor had pledged 
to me during her confirmation, in 1997, that she would follow the 
Supreme Court's decision in Adarand--a well-known case--and subject any 
preference for one race over another race to the Court's established 
standard of strict judicial scrutiny. When I asked her about this 
promise she had made, I, once again, found her answer to be dismaying. 
She stated that the cases I asked about, the seminal equal protection 
cases--Adarand and so forth--``were not what was at issue in this 
decision.'' She was talking about the Ricci case.
  But that is not right. There were two very clear claims made by the 
firefighters in this case--one based on a statutory right and one based 
on the equal protection clause of the Constitution.
  One need only look at----
  The PRESIDING OFFICER. The Chair wants to advise the Senator that his 
initial 30 minutes has been used, and so the Senator would be moving 
into the next period of debate.
  Mr. SESSIONS. Madam President, I ask unanimous consent to have 5 
additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Madam President, we will discuss some of the other 
cases in more detail later. But one need only look at the papers filed 
in the district court and the court of appeals to see that the Adarand 
issue and the constitutional question were central issues in this 
case. Look at Judge Cabranes' decision, where one of the first cases he 
cites is Adarand. One does not expect this type of mistake or a lack of 
accuracy from a Supreme Court nominee in a case of this importance, 
when she understands she will have to discuss before the Judiciary 
Committee.

  Judge Sotomayor repeatedly stated, including in her opening 
statement, that litigants deserve explanations; that she looks into the 
facts, delves into the record, and explains to litigants why she rules 
for or against them. I have read the one-paragraph Ricci opinion. Judge 
Sotomayor did not afford the firefighters the respect they deserved.
  I have also considered very carefully Judge Sotomayor's views 
regarding the Second Amendment, and I am troubled by her record and not 
reassured by the answers she gave during the hearing.
  In sum, she effectively held that the Second Amendment--the right to 
keep and bear arms--does not bind the States, and that means any city 
or any State in America, if her opinion is upheld, can ban all guns in 
those jurisdictions. If her opinion is not reversed, that is what will 
happen in America. I would note the Supreme Court, in ruling on the 
Heller case, held clearly for the first time that the Second Amendment 
is an individual right that applied to the District of Columbia, which 
effectively banned firearms in the District of Columbia. They said that 
was not constitutional, that the citizens of the District of Columbia 
have a constitutional right to keep and bear arms and it cannot not be 
eliminated.
  So if the Sotomayor opinion is upheld, I can only say the Second 
Amendment might be viable in the District of Columbia but not in the 
other

[[Page S8736]]

cities and States throughout the country.
  With regard to the takings case, one of the most significant takings 
cases in recent years, she ruled against a private landowner who had 
his property taken. He intended to build one kind of pharmacy on it. A 
developer who was working with the city utilized the powers of the city 
to attempt to extort money from that individual so he could build 
another private drugstore on that lot. When the owner refused, the city 
condemned the man's property, gave it to the developer, who then built 
his own kind of drugstore there. I believe this is in violation of the 
constitutional protection that private property can only be taken for 
public use.
  So words have meaning. The Constitution and laws of the United States 
have meaning. People come to courts to assert their rights under the 
Constitution and laws. In these three cases I have mentioned, the 
litigants did not have their rights properly listened to nor protected, 
in my opinion. Is it because she would have preferred different results 
from the promotional exam for firefighters? Is it because she did not 
believe in the rights protected by the Second Amendment as set forth in 
the Constitution? Is it because she favors redevelopment?
  We are left to wonder because the cases were certainly not decided 
based on the plain language of the Constitution, and she did not openly 
and thoroughly in any one of these cases engage in a serious discussion 
of issues raised. Each was just a page or two or three.
  One of the most important tools of a judge is words. The meaning of 
words is obviously where the power of our Constitution and laws is 
found. When a judge feels empowered to redefine the meaning of words in 
our Constitution, they feel empowered to amend our Constitution. If 
they don't like the death penalty, maybe they will call it 
unconstitutional. If they don't like the right to keep and bear arms, 
maybe they will say the Second Amendment doesn't apply to States and 
cities.
  In a recent speech before this nomination, Professor Allen C. Guelzo, 
a two-time winner of the Lincoln Prize, wisely noted that a 
constitutional system resides on a bedrock of shared assumptions. While 
it may seem to be a collection of laws and statutes, the most important 
thing is that ``those laws and statutes depend first on a reverence for 
words, for reason, and for orderliness.''
  He adds that ``reverence must grow . . . from the confidence that 
words, reasons . . . really do protect'' the rights of citizens.
  Citizens must know their rights, when clearly stated in the 
Constitution, will be steadfastly protected by the courts. It is here 
that I have significant qualms. The ease by which the nominee 
reconciled or attempted to reconcile fundamentally different statements 
in speeches at our hearing evidences a lack of respect for the meaning 
of words. Her explanation of controversial decisions lacked clarity, a 
very serious shortfall indeed for a Supreme Court Justice.
  So I came to this process with an open mind regarding Judge 
Sotomayor. She has many wonderful qualities, and I truly mean that. And 
I like her. She was ever graceful in her testimony. But certain aspects 
of her record troubled me--whether, for example, she has the kind of 
deep commitment to the ideal of objectivity and impartiality that I 
believe necessary. I had hoped those concerns would be addressed 
effectively. Unfortunately, many of the answers did little to ease my 
concerns but, instead, reinforced them and led to more unanswered 
questions. Regrettably, I cannot support her nomination to a lifetime 
appointment to the U.S. Supreme Court.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, it should be no surprise that my 
views are not those of the distinguished ranking member of our 
Judiciary Committee but somewhat different. I have served on this 
committee for over 16 years now. I have sat through the confirmation 
hearings of four Supreme Court Justices. I am very proud to say I 
believe the President made an excellent choice, and I enthusiastically 
support this nominee.
  Judge Sotomayor is a warm and intelligent woman. More importantly, 
though, she is a solid, tested, and mainstream Federal judge. Her 
personal story is one of hard work. She has risen above all kinds of 
obstacles, and she has perseverance. She is a role model for women in 
the law, and I cannot help but feel a sense of enormous pride in her 
achievements, her nomination, and, hopefully, before the end of the 
week, her confirmation to be a Supreme Court Justice.
  As I said at the confirmation hearings, a Supreme Court Justice 
should possess at least five qualities.
  One, broad and relevant experience. So how does she stand? You can't 
find a nominee with better experience than Judge Sotomayor.
  She has 29\1/2\ years of relevant legal experience, and she has seen 
the law from all sides.
  For 4\1/2\ years she was a prosecutor in New York City. She 
prosecuted murders, robberies, and child pornography cases as an 
assistant district attorney. She worked with law enforcement officers 
and victims of crime, and she sent criminals to jail.
  We heard from the distinguished New York City District Attorney, Mr. 
Morgenthau, who said he looked for bright young people, and he found 
her and he heard her story and she had been to Princeton. She graduated 
summa cum laude. She went to Yale Law School. She was editor of the Law 
Review.
  She came to his attention, and he went to recruit her as a prosecutor 
in New York City. For 8 years after that, she practiced business law as 
a litigator in a private firm. She worked on complex civil cases 
involving real estate law, banking law, contracts, and intellectual 
property law.
  Then, she was appointed by George Herbert Walker Bush--as we might 
fondly say ``Bush 41''--as a U.S. district court judge for 6 years. She 
heard roughly 450 cases in the district court up close and personal, 
where litigants come before the judge and the judge gains a sense of 
what the Federal court means to an individual.

  I think that is important to know on the Supreme Court. She saw there 
firsthand the impact of the law on people before her.
  Then she was appointed by President Clinton. For 11 years she has 
been a Federal appellate court judge on the Second Circuit Court of 
Appeals. She has been on the panel for more than 3,000 Federal appeals, 
and she has authored opinions in more than 600 cases. These 11 years 
were rigorous and appropriate training ground for the Supreme Court.
  Judge Sotomayor will be the only sitting Justice with experience on 
both the Federal trial and appellate courts, and she has more Federal 
judicial experience than any Supreme Court nominee in the last 100 
years. That is a substantial qualification.
  Secondly, a Supreme Court Justice should have deep knowledge of the 
law and the Constitution. I believe her broad experience gives her 
firsthand knowledge of virtually every area of the law.
  As a prosecutor she tried criminal cases--homicides, assaults, 
pornography cases--those crimes that destroy lives.
  As a business lawyer, she examined contracts, represented clients in 
complex civil litigation, and tried intellectual property disputes.
  As a district court judge she presided over criminal and civil jury 
trials; she sentenced defendants; she resolved complicated business 
disputes; and she reached decisions in discrimination and civil tort 
cases where people had been unfairly treated, injured, or harmed.
  Finally, as an appellate judge, she has grappled with the difficult 
and critical questions that arise when people disagree about what our 
Constitution and our Federal statutes mean today. So she certainly has 
ample experience.
  Third, a Supreme Court Justice should have impeccable judicial 
temperament and integrity. Anyone who watched Judge Sotomayor at her 
confirmation hearings has seen her temperament and demeanor firsthand. 
She is warm, she is patient, and she is extremely intelligent. She sat 
at that table with a broken ankle up on a box hour after hour and day 
after day in a hot room listening to members of the Judiciary Committee 
pepper her with questions. Not at any time did she lose her presence, 
lose her cool, or show anger. She showed determination and

[[Page S8737]]

patience and perseverance. I think that means a great deal.
  At times, the hearings became quite heated, but she would remain calm 
even in the face of provocative questioning.
  So I am not surprised the American Bar Association and the New York 
City Bar Association gave her their highest rating.
  As one of her Republican-appointed colleagues on the Second Circuit 
said: ``Sonia Sotomayor is a well-loved colleague on our court. 
Everybody from every point of view knows she is fair and decent in all 
her dealings. The fact is, she is truly a superior human being.''
  What greater compliment could there be for a prospective Supreme 
Court nominee?
  After spending time with her during our one-on-one meeting and 
participating in her confirmation hearings, I agree. She is a walking, 
talking example of the very best America can produce. She has overcome 
adversity. Here is a woman--a child--the product of a poor Puerto Rican 
family living in a housing project in New York. She is 8 years old, she 
finds herself with juvenile diabetes. She is 9 years old, her father 
dies. She goes to school. She struggles with the language. She 
overcomes it. She graduates from high school. She goes to Princeton. 
She succeeds in every way, shape, and form, as I said, summa cum laude, 
and then on to Yale and a member of the Yale Law Review. She overcame 
adversity and she kept going.
  She has given back to her country and her community, and she is now 
on track to become the first Latina Justice of the U.S. Supreme Court 
and only the third woman ever appointed to that Court.
  I not only will vote for her, I will do so with great pride.
  Finally, a Supreme Court Justice should exhibit mainstream legal 
reasoning and a firm commitment to the law. I have heard people say 
that they don't believe she will follow the law.
  I sat in the room during those 4 days of hearings. There was never an 
instance that I saw where she moved away from legal precedent and the 
law.
  I have said before, and I say today, I am somewhat concerned about 
the current Supreme Court. As I see it, conservative activists have 
succeeded in moving our Court to the right of mainstream American 
thought.
  In just the last 2 years, this has been abundantly clear. The 
Justices have disregarded precedent at an alarming rate, and they have 
rewritten the law in ways that make clear that they are not just 
``calling balls and strikes.''
  In 2007, the Court held that a school district cannot consider race 
when it assigns students to schools--even to ensure any amount of 
racial diversity. This is Parents Involved in Community Schools v. 
Seattle School District, 551 U.S. 701, 2007.
  It held that women who were paid less than men had to sue within 180 
days--even when they had no way of knowing they were paid less, or they 
lost their right to back pay. This is Lily Ledbetter v. Goodyear Tire & 
Rubber Co. Inc., 550 U.S. 618, 2007. The occupant of the chair is new 
to the Senate. One of the first things we did was pass the Lily 
Ledbetter law to overcome that Supreme Court decision.
  The Court held for the first time since 1911 that manufacturers could 
fix minimum prices for their products. This is Leegin Creative Leather 
Products Inc. v. PSKS, Inc., 551 U.S. 877, 2007.
  It held that the Endangered Species Act did not apply to certain 
Federal actions--even though the Court, in 1978, said the Act had ``no 
exception.'' This is National Association of Home Builders v. Defenders 
of Wildlife, 551 U.S. 644, 2007.
  And it held that Congress could pass a law restricting access to OB/
GYN services for women without including an exception for when a 
woman's health is at risk. This is Gonzales v. Carhart, 550 U.S. 124, 
2007.
  That last decision was not only dangerous to a woman's health, it is 
also contrary to the Court's opinions in Roe, in 1973; in Ashcroft, in 
1983; in Casey and Thornburgh, both in 1992; in Carhart I in 2000; and 
in Ayotte, in 2006. So this Court of conservative activists cast aside 
precedent and ``super-precedent'' to do essentially what they believe--
not to follow the precedent, which was simply thrust aside.
  The Supreme Court's shift to the right and discarding of precedent is 
not just an ivory tower issue either. These decisions have real-life 
impact.
  Last week, USA Today reported that older white men, 55 years or 
older, are losing jobs at the highest rate since the Great Depression. 
This is Dennis Cauchon, In this Recession, Older White Males See Jobs 
Fade, USA Today, July 30, 2009.
  This is troubling. We have a law--the Age Discrimination in 
Employment Act--that is supposed to protect workers from being laid off 
because of their age. But 2 months ago, the Supreme Court changed the 
burden of proof under that law, making it harder for older workers to 
get protection when they are fired, demoted, or not given a job because 
of their age. This is Jack Gross v. FBL Financial Services, Inc., 129 
S. Ct. 2343, 2009.
  Let me be clear, in my view, after 16 years on this committee: The 
Justices on the Supreme Court are not umpires; they do not just call 
balls and strikes. And they are not computers. It matters who sits on 
our Supreme Court, and it matters whether they will respect precedent 
and follow the law.
  Judge Sotomayor is a nominee with a 17-year record of following the 
law. She has faithfully applied the law to the facts in case after 
case.
  We have a research service called the Congressional Research Service. 
It is a neutral, respected adjunct to what we do in the Senate and the 
House. It carries out significant research. They took a look at her 
record, examined it, and this is what they said:

       Her decisions do not fall along any ideological spectrum. 
     The most consistent characteristic of her approach as an 
     appellate judge has been an adherence to the doctrine of 
     stare decisis--the upholding of past judicial precedents.

  When her record is objectively researched by the number one objective 
research service we have, she has been found to abide by court 
precedent. They have essentially said she is not an activist, she 
follows legal precedent. When her confirmation hearing ended, even one 
Senator who is now voting against Judge Sotomayor said this:

       I actually agree that your judicial record strikes me as 
     pretty much in the mainstream of judicial decisionmaking.

  This is Senator John Cornyn, Confirmation Hearings for Judge Sonia 
Sotomayor, July 16, 2009.
  Judge Sotomayor's mainstream record, her respect for precedent, and 
her commitment to the law have earned her the support of groups that 
cut across party lines.
  She has been endorsed by law enforcement groups, such as the 
International Association of Chiefs of Police; civil rights groups, 
such as the Leadership Conference for Civil Rights; business groups, 
such as the U.S. Chamber of Commerce--yes, they have endorsed her; 
former officials from both parties, including conservative lawyer 
Kenneth Starr; and legal groups, such as the American Bar Association.
  This is a nominee with a solid record, with more Federal judicial 
experience than any nominee in a century, and with widespread support.
  There are those who oppose her because of a line from a speech she 
made--one line in 29\1/2\ years of legal experience.
  Second, there are those who oppose her because of one case. It is the 
Ricci case--the New Haven case involving firefighters. But Judge 
Sotomayor was squarely in the mainstream in that case. She followed 
established precedent. That is what the district court said in an 
almost 50-page opinion. This is Ricci v. DeStefano, 2006 U.S. Dist. 
LEXIS 73277, D. Conn. 2006, unpublished opinion. Her second circuit 
panel unanimously agreed. This is Ricci v. DeStefano, 530 F.3d 87, 2d 
Cir. 2007.
  At about the same time, in the U.S. District Court in Tennessee, a 
judge held that in a nearly identical situation, the Memphis Police 
Department could replace a promotional exam that it feared was 
discriminatory.
  Last year, a three-judge circuit court panel on the Sixth Circuit--
including one judge appointed by President George W. Bush--agreed. This 
is Oakley v. City of Memphis, No. 07-6274, 6th Cir. 2008, unpublished 
opinion. So there was agreement on the courts.
  It is true that five Justices, in a 5-to-4 opinion on the Supreme 
Court, disagreed, and their decision is now the

[[Page S8738]]

law of the land. This is Ricci v. DeStefano, 129 S. Ct. 2658, 2009. I 
was a mayor for 9 years of a difficult city going through a number of 
affirmative action cases. I can tell you that this ruling has placed 
cities in what Justice Souter called a ``damned if you do, damned if 
you don't situation.''
  I agree with that. If a city has to prove that it would lose in court 
before replacing a civil service exam it believes is discriminatory, 
this jeopardizes virtually any exam they might choose.
  Finally, and most important, there is the third point of opposition, 
and that is the National Rifle Association. The NRA actively opposes 
Judge Sotomayor. They say they are scoring her confirmation vote. They 
will tell their members that any Senator who votes to confirm Judge 
Sotomayor has voted against the NRA's priorities. So let's look at that 
for a minute.
  The NRA says Judge Sotomayor erred in the case of United States v. 
Sanchez-Villar, a 2004 case. In this case, an illegal immigrant named 
Jose Sanchez-Villar was caught dealing crack cocaine and carrying a gun 
in New York City. This is United States v. Sanchez-Villar, 99 Fed. 
Appx. 256, 2d Cir. 2004.
  Those are the facts of the case. A jury convicted. On appeal, the 
defendant argued, among other things, that to prohibit him from 
carrying a gun in New York City violated the second amendment.
  Judge Sotomayor and her colleagues unanimously rejected his argument 
and upheld the conviction. The NRA is apparently upset that Judge 
Sotomayor and her colleagues did not agree with Mr. Sanchez-Villar's 
second amendment argument.
  But in 2004, when this case was decided, the law had been clear for 
65 years. The Supreme Court had said in 1939 that the second amendment 
only related to militia service and judges all across our country had 
followed that decision for decades. This is United States v. Miller, 
307 U.S. 174, 1939.
  Would the NRA have preferred that Judge Sotomayor rule against 65 
years of settled law and hold that an undocumented drug dealer had a 
constitutional right to carry a gun in New York City? Do you want that, 
Mr. President? Do I want that in my State? The answer is absolutely no.
  The NRA also says Senators should oppose Judge Sotomayor's nomination 
because of another case, Maloney v. Cuomo. This is Maloney v. Cuomo, 
554 F.3d 56, 2d Cir., 2009. There, Judge Sotomayor and her colleagues 
unanimously upheld a New York law banning a particular Japanese martial 
arts weapon called nunchakus.
  The unanimous decision said the second amendment limits only the 
Federal Government, not the States. Why would Judge Sotomayor and her 
colleagues say that? Because it was binding Supreme Court law. Look at 
the decisions:
  In 1876, the Supreme Court held that the second amendment only 
applies to the Federal Government. That was United States v. 
Cruikshank, 92 U.S. 542 (1876). It said it again in 1886, in Presser v. 
Illinois, 116 U.S. 252, 1886, and again, in 1984, in Miller v. Texas, 
153 U.S. 535, 1984.
  The fourth circuit followed that law and said in 1995 that the second 
amendment only applies to the Federal Government. That case was Love v. 
Pepersack, 47 F.3d 522, 1995. The Sixth Circuit agreed in 1998, in 
People's Rights Organization v. City of Columbus, 152 F.3d 522, 1998. 
Judge Sotomayor's own court, the second circuit, agreed in 2005, in 
Bach v. Pataki, 408 F.3d 75, 2005.
  Then last year, Justice Scalia wrote in footnote 23 of the famous 
Heller opinion:

       [Our] decisions in Presser v. Illinois and Miller v. Texas 
     reaffirmed that the Second Amendment only applies to the 
     Federal Government.

  That case was District of Columbia v. Heller, 128 S.Ct. 2783, 
2008. Justice Scalia is not exactly a liberal Supreme Court Justice, 
and that is his view:

       Presser v. Illinois and Miller v. Texas reaffirm that the 
     second amendment only applies to the Federal Government.

  Finally, just 2 months ago, three Republican appointees on the 
Seventh Circuit agreed that the second amendment only applies to the 
Federal Government. They said anyone who doubts this need only read 
Justice Scalia's opinion. And that case was the National Rifle 
Association v. City of Chicago, 567 F.3d 856, 2009.
  So once again Judge Sotomayor's decision was squarely in agreement 
with court after court after court.
  Some of my colleagues have said that the Ninth Circuit disagreed. It 
is true that three of its judges did. But last week, the full Ninth 
Circuit voted to review these three judges' decision and to rehear it 
as a full court en banc. And that case is Nordyke v. King, No. 07-
15763, En Banc Order, Ninth Circuit, July 29, 2009.
  The NRA tried its case before the Seventh Circuit and lost. They lost 
in front of three Republican-appointed judges.
  Let me summarize. Judge Sonia Sotomayor has 29\1/2\ years of relevant 
legal experience. She has a 17-year record of following the law. She 
has experience, temperament, and knowledge. She will be, in my view, a 
fine Supreme Court Justice.
  Supreme Court Justices do not merely call balls and strikes; they 
make decisions that determine whether acts of Congress will stand or 
fall. They decide how far the law will go to protect the safety and 
rights of all of us. They have the power to limit or expand civil 
rights protections. They have great leeway to interpret the laws 
protecting or limiting a woman's right to choose. And they can expand 
or limit child pornography laws and campaign finance laws and so many 
more.
  I believe Judge Sotomayor is an exceptional person who brings a rich 
background as a prosecutor, a business lawyer, a trial judge, and 
appellate court judge. And her 17-year record of judicial temperance 
shows she will faithfully apply the law. I cannot tell you how proud I 
will be to vote to confirm her as an Associate Justice on the Supreme 
Court. I sincerely hope that a dominant majority of my colleagues will 
do the same.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Udall of Colorado). The Senator from New 
Jersey.
  Mr. MENENDEZ. Mr. President, I rise in proud support of the 
confirmation of Judge Sonia Sotomayor. We are not only about to cast a 
vote this week that will make history, but we are about to stand 
witness in some small way to the coming age of America.
  The great Founders of this democracy built a nation on an idea and an 
ideal. They devised the unique experiment in a new form of government 
built on tolerance, equal rights, justice, and a constitution that 
protected us from the mighty sword of tyranny. They forged a community 
from shared values, common principles, yet preserved the freedom of 
every citizen to pursue happiness and reach for the stars no matter 
their position, no matter their circumstance at birth.
  It was a revolutionary notion that in America one is not bound by his 
or her social or economic status; that if we work hard, reach further, 
aim higher, everything--anything--is possible.
  Unlike other nations united by common history, common language, and 
common culture, America prides itself on its motto: E pluribus unum--
out of many, one. In our blind rush to one side of the political 
spectrum or the other, we too often forget those words. We too often 
forget that we are united in our differences in a vast melting pot 
forged from common values and an ideal of freedom that is the envy of 
the world.
  Today, as we prepare to confirm Judge Sotomayor, the full realization 
of that ideal is closer than it has ever been. I know it, I feel it, 
for I have lived it. I stand here, someone who himself came from humble 
beginnings, raised in a tenement building in a neighborhood in Union 
City, NJ, a son of immigrants, first in my family to go to college, and 
now in a nation of 300 million people, 1 of 100 Members of the U.S. 
Senate.
  I never dreamed growing up that one day I would have the distinct 
honor to come to the floor of the Senate to rise in favor of the 
confirmation of an eminently qualified Hispanic woman who grew up in 
the Bronx across the river from the old tenement I lived at in Union 
City. I never dreamed that as a U.S. Senator of Hispanic heritage, I 
would have the privilege of standing in the well of this Chamber to 
cast a historic vote for the first Hispanic woman on the highest Court 
in the land. So for

[[Page S8739]]

me personally, my vote for Judge Sonia Sotomayor will be a proud 
moment, one I will always remember as a highlight of my time in the 
Senate.
  When Judge Sotomayor takes her seat on the U.S. Supreme Court, 
America will have come of age. We will need only to look at the 
portrait of the Justices of the new Supreme Court to see how far we 
have come as a nation, who we really are as a people, what we stand 
for, and what our Founders intended us to be. It will be a striking 
portrait--one of strength, diversity, spirit, and wisdom, the portrait 
of a nation united by common concerns, yet still too often divided by 
deeply held individual beliefs.
  There are those in this Chamber who, because of those deeply held 
beliefs, will vote for Judge Sotomayor and those who will not, each for 
their own reasons, each in part because of who they are, where they 
grew up, how their perspective has been uniquely shaped by their 
individual circumstances and experiences. Their vote will be based on 
their own logic, their own reasoning, how they interpret the facts and 
the testimony before them. Each of us will analyze and debate those 
facts from our own perspective. We will hold to our own intellectual 
positions. We will disagree. Some will find fault with Judge 
Sotomayor's choice of words. Some will interpret her statements and 
rulings differently than she may have clearly intended. Some will 
question her temperament, her judgment, the details of her decisions. 
But in this debate and, ultimately, in the final analysis, none of us 
can deny the role our experience will play in our decision. None of us 
can deny our backgrounds, our upbringing, the seminal events that 
shaped our life. We cannot deny who we are. All we can ask of 
ourselves--of any of us--is that wisdom, intelligence, reason, and 
logic will always prevail in the decisions we make.
  Those who would say a U.S. Senator or a Justice of the U.S. Supreme 
Court does not carry something with them from their experience are 
simply out of touch with reality. But let us remember that who we are 
is not a measure of how we judge; it is merely the prism through which 
we analyze the facts. The real test is how we think and what we do.
  Let's be clear. Given the facts, given the evidence before us, Sonia 
Sotomayor is one of the most qualified and exceptionally experienced 
nominees to come before the Senate. I am proud to stand in favor of her 
confirmation, not because of where she came from, not because we share 
a proud ethnicity, but because of Judge Sotomayor's experience and vast 
knowledge of the law. I am proud to stand in favor of her nomination 
not because she is a Hispanic woman but because of her commitment to 
the rule of law and her respect for the Constitution; not because of 
the depth of her theoretical knowledge and respect for precedent but 
because of her practical experience fighting crime; not because of one 
statement she may have made years ago outside the courtroom but because 
of a career-long, proven record of dedication to equal justice under 
law. Nothing--I repeat nothing--should be more important to any nominee 
than a dedication to those simple words chiseled above the entrance to 
the Supreme Court: ``Equal Justice Under Law.''

  These are the reasons I am proud to stand in support of her 
confirmation, and these are the reasons I believe Judge Sotomayor 
should be unanimously confirmed by the Senate. But I know that will not 
be the case. I know there will be few on the other side of the aisle 
who will cast their vote in support of her. I know some of my 
colleagues have suggested that Judge Sotomayor may not have the 
judicial temperament necessary to serve on the Supreme Court. To those 
Senators who get up and say that, I say watch the hearings again. Watch 
them closely. Listen to what was asked, watch her responses, take note 
of the depth, the dignity, and clarity of her answers. Be aware of the 
deference she showed every Senator on the committee, her tone, the 
tenor of her responses, her rebuttals, and then tell me she does not 
have the proper judicial temperament.
  I think most Americans who watched her, who listened to her, would 
respectfully disagree. Most Americans do not care about one specific 
statement out of hundreds of statements. They care about the person. 
They care about the experience. They care about honor and decency and 
dignity and fairness. They care about who she is and what she has 
accomplished in her long judicial career. Put simply, they care about 
the record, and the record is clear. It shows she has a deep and 
abiding respect for the Constitution. It shows that the leaders of 
prominent legal and law enforcement organizations who know her best, 
those who have actually seen her work, say she is an exemplary, fair, 
and highly qualified judge. It shows a crime fighter who as a 
prosecutor put the ``Tarzan murderer'' behind bars. It shows a judge 
who has upheld the convictions of drug dealers, sexual predators, and 
other violent criminals. And it highlights a deep and abiding respect 
for the liberties and protections granted by the Constitution, 
including the first amendment rights of those with whom she strongly 
disagrees.
  Judge Sotomayor's credentials are impeccable. Set aside for a moment 
the fact that she graduated at the top of her class at Princeton. Set 
aside her tenure as editor of the Yale Law Review, her work for Robert 
Morgenthau in the Manhattan District Attorney's Office, her successful 
prosecution of child abusers, murderers, and white-collar criminals. 
Set aside her courtroom experience and practical hands-on knowledge of 
all sides of the legal system. Even set aside her appointment by George 
H.W. Bush to the U.S. District Court in New York and her appointment by 
Bill Clinton to the U.S. Court of Appeals and the fact that she was 
confirmed by both a Democratic majority Senate and a Republican 
majority Senate, which alone tells this Senator, if she was qualified 
then, she must be qualified now. Set all that aside, and you are still 
left with someone who would bring more judicial experience to the 
Supreme Court than any Justice in the last 70 years, more Federal 
judicial experience than anyone nominated to the Court in the last 
century. Her record clearly shows that someone so experienced, so 
skilled, so committed, so focused on the details of the law can be an 
impartial arbiter who follows the law and still has a deep and profound 
understanding of the effect her decisions will have on the day-to-day 
lives of everyday people.
  With all due respect to my colleagues who plan to vote against this 
nominee, what speaks volumes about Judge Sotomayor's temperament, what 
speaks volumes about her experience, what speaks volumes about her 
record is that the worst--the very worst--her opponents can accuse her 
of is an accident of geography that gave her the unique ability to see 
the world from the street view, from the cheap seats. I know that view 
very well. I grew up in it. I can tell you that certainly it gives you 
a unique perspective on life. it engenders compassion. It engenders 
pathos. It focuses a clear lens on the lives of those whose struggles 
are more profound than ours, and whose problems run far deeper. Yes, I 
know that view well, and it remains with me today, and it will remain 
with me all of my life.

  I daresay there may be no greater vantage point from which to view 
the world--to see the whole picture--than a tenement in Union City or a 
housing project in the Bronx. Thomas Jefferson, in his first inaugural 
address said:

       I shall often go wrong through defect of judgment. When 
     right, I shall often be thought wrong by those whose 
     positions will not command a view of the whole ground.

  Judge Sonia Sotomayor surely commands a full, wide expansive view of 
the whole ground. It is a strength, not a weakness. It is who she is, 
not what she will do or how she will judge. It is the long view, and it 
gives her an edge where she may see what others cannot. And that is a 
gift that will benefit this Nation as a whole.
  I ask my colleagues to take the long view and see what this 
nomination means in the course of this Nation's glorious history. For 
me, the ideal, the idea of America, the deep and abiding wisdom of our 
Founders, will have come of age when Judge Sonia Sotomayor raises her 
right hand, places her hand on the Bible, and takes the solemn oath of 
office. With it, the portrait of the Justices of the U.S. Supreme Court 
will more clearly reflect who we are as a nation, what we have become, 
and what we stand for as a

[[Page S8740]]

fair, just, and hopeful people. Let that be our charge. Let that be our 
legacy. Let someone who is committed to the Constitution, to the rule 
of law, to precedent--and who has exhibited that over a lifetime of 
work--be our next Supreme Court Justice.
  I am proud and honored to support the confirmation of Judge Sonia 
Sotomayor as the next Justice of the U.S. Supreme Court.
  And finally, numerous civil rights, Latino, and law enforcement 
organizations join me in supporting Judge Sotomayor's nomination. I ask 
unanimous consent to have printed in the Record letters of support from 
the following organizations: Mexican American Legal Defense and 
Education Fund, the National Hispanic Leadership Agenda, the National 
Puerto Rican Coalition, the National Fraternal Order of Police, the 
National Organization of Black Law Enforcement Executives, Federal 
Hispanic Law Enforcement Officers Association, the United States 
Hispanic Chamber of Commerce, the Arizona Hispanic Chamber of Commerce, 
and the Fort Worth Hispanic Chamber of Commerce, to name a few.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         Mexican American Legal Defense and Educational Fund,
                                    Los Angeles, CA, July 7, 2009.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jeff Sessions, 
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: On behalf 
     of the Mexican American Legal Defense and Educational Fund 
     (MALDEF), I write to express our support for the confirmation 
     of Judge Sonia Sotomayor to the United States Supreme Court. 
     Judge Sotomayor is an outstanding choice to replace retiring 
     Justice David Souter. She has an impeccable record of 
     accomplishment that is worthy of serving on the highest court 
     in the nation. She possesses all of the credentials and 
     experience that make her highly qualified to sit on the 
     Supreme Court. Significantly, she is one of the most 
     qualified candidates to be considered for Associate Justice 
     in recent history.
       The American Bar Association has unanimously rated Judge 
     Sotomayor ``well qualified'' for the Court, its highest 
     rating. She has broad and bipartisan support. She has been 
     endorsed by eight national law enforcement groups. She has 
     the support of Former President Herbert Walker Bush and 
     former Supreme Court Justice Sandra Day O'Connor.
       Judge Sotomayor has extensive experience as a trial 
     attorney having worked in both the public and private 
     sectors. She was an Assistant District Attorney in New York 
     for five years where she tried dozens of criminal cases 
     including murders, robberies, police misconduct, and fraud. 
     Former New York District Attorney Robert Morgenthau described 
     her as a ``fearless and effective prosecutor.'' She was a 
     corporate litigator in private practice for eight years as a 
     partner at the law firm of Pavia & Harcourt where she handled 
     cases in real estate, employment, banking, contracts, and 
     intellectual property law.
       She has served as a federal judge for 17 years. She was the 
     youngest judge appointed to the federal bench in the Southern 
     District of New York where she served for six years and heard 
     over 450 cases. She has been on the U.S. Court of Appeals for 
     the Second Circuit--one of the most demanding circuits in the 
     country--for 11 years. As a federal appellate judge she has 
     participated in over 3000 panel decisions and authored 
     approximately 400 published decisions. She has handled 
     complex legal and constitutional matters. Her decisions are 
     faithful to both legal doctrines and factual details.
       If confirmed, Judge Sotomayor would bring more federal 
     judicial experience to the Supreme Court than any justice in 
     100 years and more overall judicial experience than anyone 
     confirmed to the Court in the past 70 years. She also would 
     be the only Justice with experience as a trial judge.
       Judge Sotomayor's educational accomplishments demonstrate 
     her strong work ethic and clarity of focus starting from a 
     young age. She graduated summa cum laude from Princeton 
     University and is a graduate of Yale Law School where she was 
     an Editor on the Law Review, a distinction reserved for only 
     the top law students.
       Judge Sotomayor has a demonstrated commitment to the 
     community. She has been a lecturer at Columbia Law School and 
     an adjunct professor at NYU Law School. She served on the 
     board of the Development School for Youth whose mission is to 
     develop work skills for inner city young people. She has 
     served on the Boards of Directors of the New York Mortgage 
     Agency, the New York City Campaign Finance Board and the 
     Puerto Rican Legal Defense and Education Fund.
       The Latino community shares in the pride of the nation at 
     President Obama's nomination of this exceptional jurist. The 
     diversity she will add to the Court is a strength that will 
     enhance respect and dignity for the judicial system. MALDEF 
     respectfully requests the opportunity to testify in support 
     of Judge Sotomayor's confirmation.
       Judge Sotomayor is an individual of exceptional talent, 
     experience and commitment to justice. We urge her swift 
     confirmation.
           Very truly yours,
                                                  Henry L. Solano,
     Interim President & General Counsel.
                                  ____

                                                     June 9, 2009.
     Hon. Patrick Leahy,
     Chairman, U.S. Senate, Committee on the Judiciary, Dirksen 
         Senate Office Building, Washington, DC.
       Dear Senator Leahy: The National Hispanic Leadership Agenda 
     (NHLA), comprised of thirty-one of the leading national and 
     regional Hispanic civil rights and public policy 
     organizations, representing a diverse Latino community and 
     millions of members nationwide, would like to request a 
     meeting regarding the nomination of Judge Sonia Sotomayor to 
     become the next United States Supreme Court Justice. As 
     community advocates with a vested interest in serving the 
     public good, members of our coalition would like to meet with 
     you and discuss Judge Sotomayor's nomination. NHLA represents 
     a vast array of constituencies that include veterans, 
     academics, legal experts, labor activists, federal employees, 
     elected officials, medical professionals and members of the 
     media, among many other community leaders who unequivocally 
     support the nomination of Judge Sotomayor based on the merits 
     of her judicial record and overall experience.
       The NHLA mission and objectives call for providing a 
     clearinghouse of information to the Hispanic community; 
     providing a unified voice on relevant issues; and providing a 
     much needed voice on legislative issues that have direct 
     implications for our members nationwide. The composition of 
     NHLA includes groups with Mexican, Puerto Rican, Dominican, 
     and Cuban leadership, as well as the membership of countless 
     other Hispanic and Latin-American interests. The common 
     issues of education, civil rights, immigration, economic 
     empowerment, health, and government accountability transcend 
     ethnic origin and racial identity, as evidenced by the 
     breadth of these different groups. The Hispanic community is 
     larger and more diverse than ever, numbering close to 50 
     million persons and making up over 16% of the combined 
     population of the United States, Puerto Rico, and the United 
     States territories.
       We look forward to your response as we would like to 
     schedule meetings for the week of June 15th-19th, Should you 
     have any questions, please contact Alma Morales Riojas, 
     Secretary/Treasurer of the National Hispanic Leadership 
     Agenda and President and CEO of MANA, A National Latina 
     Organization or James Albino, Director, Hispanic Federation.
           Sincerely,

                                        Dr. Gabriela D. Lemus,

                                        Chair, Board of Directors,
     National Hispanic Leadership Agenda.
                                  ____

                                                   National Puerto


                                        Rican Coalition, Inc.,

                                    Washington, DC, July 13, 2009.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U. S. Senate, Russell 
         Senate Office Building, Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Russell Senate Office Building, Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: On behalf 
     of the National Puerto Rican Coalition Inc. (NPRC), 
     representing the interests of over 8 million U.S. citizens in 
     the states and Puerto Rico, I would like to express our full 
     and enthusiastic support for the confirmation of the 
     Honorable Judge Sonia Sotomayor to the United States Supreme 
     Court. Her personal and professional experiences make her 
     uniquely sensitive and qualified to address the concerns of 
     all Americans in our nation's highest court.
       Judge Sotomayor's personal story of growing up as a 
     daughter of Puerto Rican parents in a Bronx housing project, 
     and eventually going on to study in Princeton and Yale, is an 
     authentic reflection of the power for motivated and talented 
     people in our society to overcome hardship and achieve 
     success. This experience allows her a profound sensitivity to 
     the challenging conditions of life which are the reality for 
     a significant portion of the U.S. population and will provide 
     her with a unique perspective on how to justly and equally 
     apply our nation's laws.
       In her professional life Judge Sotomayor's legal career has 
     included not only criminal prosecution and commercial 
     litigation, but also academia and appointment to the federal 
     bench. For the past ten years, her intellect, integrity, and 
     consensus-building have made her a highly respected jurist on 
     the Second Circuit. This followed a distinguished career as a 
     federal trial judge, during which Judge Sotomayor's 
     pragmatism and resolve brought the national baseball strike 
     to an end that satisfied all parties. She then taught for 
     over nine years at the New York University School of Law and 
     at Columbia Law School and has been a mentor to hundreds of 
     attorneys and students as well as a member of the Puerto 
     Rican and the Hispanic National Bar Associations. This wealth 
     of experience has impressed upon her both the law's 
     potential, as well as its limits. Since her nomination was 
     announced she has

[[Page S8741]]

     received endorsements and praise from across the country.
       As the Senate holds confirmation hearings, NPRC will be 
     watching carefully to ensure that the Senate treats Judge 
     Sotomayor fairly. Our organization firmly believes that Judge 
     Sotomayor is the best choice for our country's next Supreme 
     Court Justice. Therefore, NPRC will include her confirmation 
     vote as part of our NPRC Community Accountability Rating. I 
     hope and trust that you and your colleagues will 
     enthusiastically support her nomination.
           Sincerely,
                                                 Rafael Fantauzzi,
     President & CEO.
                                  ____



                           National Fraternal Order of Police,

                                     Washington, DC, June 9, 2009.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Jefferson B. Sessions III,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Senator Sessions: I am writing on 
     behalf of the members of the Fraternal Order of Police to 
     advise you of our support for the nomination of Judge Sonia 
     M. Sotomayor to join the Supreme Court of the United States.
       Following her graduation from Yale Law School, Judge 
     Sotomayor joined the District Attorney's office in Manhattan, 
     where she tried dozens, of cases during her tenure, including 
     winning a conviction of the ``Tarzan murderer''. She worked 
     closely with rank-and-file law enforcement officers during 
     her time as a prosecutor, and, was described by the legendary 
     Manhattan District Attorney Robert Morgenthau as a ``fearless 
     and effective prosecutor.''
       After spending some time in private practice, Judge 
     Sotomayor returned to public service and was nominated by 
     President George H. W. Bush for a seat on the U.S. District 
     Court for the Southern District of New York. The Committee on 
     the Judiciary unanimously approved her nomination, and she 
     was confirmed in the Senate by unanimous consent. Upon 
     confirmation, Judge Sotomayor became the youngest sitting 
     judge in the Southern District of New York.
       Her first high profile case involved a labor issue--
     Silverman v. Major League Baseball Player Relations 
     Committee, Inc. By issuing an injunction preventing the 
     owners from imposing a new collective bargaining agreement, 
     it can be argued that Judge Sotomayor helped save baseball, 
     and certainly baseball fans, from a long, drawn out labor 
     dispute.
       In 1998, she was named to the U.S. Court of Appeals for the 
     Second Circuit, one of the most demanding circuits in the 
     country, by President William J. Clinton. As an appellate 
     judge, she has participated in over 3000 panel decisions and 
     authored roughly 400 opinions, handling difficult issues of 
     constitutional law, complex procedural matters, and lawsuits 
     involving complicated business organizations. Over the course 
     of her career, she has demonstrated herself to be a sharp and 
     fact-driven jurist, analyzing each case on its merits and 
     weighing the facts before rendering any decision.
       While her ruling in Ricci v. Destefano has been getting 
     most of the media attention, we would like to bring another 
     case to your attention, Pappas v. The City of New York, et 
     al. New York City Police Officer Thomas Pappas was fired for 
     distributing through the U.S. mail racially offensive 
     material from his home. While the Second Circuit upheld the 
     termination of Officer Pappas, Judge Sotomayor dissented 
     noting that his First Amendment rights took precedence 
     because he did not occupy a high-level supervisory, 
     confidential or policymaking role within the department.
       In other cases which came before her, both civil and 
     criminal, Judge Sotomayor has often sided with law 
     enforcement officers acting in good faith by upholding 
     convictions on appeal. It is clear that she weighs the facts 
     in evidence and makes her rulings based on the merits of the 
     case. She is a model jurist--tough, fair-minded, and mindful 
     of the constitutionally protections afforded to all U.S. 
     citizens.
       I believe that the President has made an excellent choice 
     in naming Judge Sonia S. Sotomayor to the Supreme Court of 
     the United States and, on behalf of the more than 327,000 
     members of the Fraternal Order of Police, I am proud to 
     endorse her nomination. If I can be of any additional support 
     on this matter, please do not hesitate to contact me or 
     Executive Director Jim Pasco in my Washington, D.C. office.
           Sincerely,
                                                 Chuck Canterbury,
     National President.
                                  ____

                                          National Organization of


                             Black Law Enforcement Executives,

                                     Alexandria, VA, June 8, 2009.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
     Hon. Jeff Sessions,
     U.S. Senate,
     Washington, DC.
       Dear Senators Leahy and Sessions: The National Organization 
     of Black Law Enforcement Executives (NOBLE), an organization 
     of approximately 3,000 primarily African American law 
     enforcement CEOs and command level officials writes to 
     express its support for President Barack Obama's nomination 
     of U.S. District Court Judge Sonia Sotomayor as Associate 
     Justice of the U.S. Supreme Court.
       It is critically important to NOBLE, that a Supreme Court 
     justice exercises the ability to interpret the Constitution 
     in a manner that respects the fundamental rights of all 
     people, and that is fair. Judge Sotomayor has credible 
     service; her transition from local prosecutor, to U.S. 
     District Court judge, to U.S. Appeals Court jurist has 
     afforded her the opportunity to experience the breadth of 
     criminal, civil and administrative law issues. The critical 
     issues involving the dialectical contradictions of inequities 
     and fairness across the spectrum of employment, education, 
     housing, the status of juvenile offenders and the enforcement 
     of law are of deep concern to us and are issues that we 
     believe she will be sensitive to.
       Furthermore, as the cases before the Court become more 
     challenging, and with science and technology related issues 
     advancing at such a rapid pace, we believe that Judge 
     Sotomayor is imminently qualified to look at our 200-year-old 
     Constitution in a manner that is relevant to today's world. 
     It is interesting to note a recent White House Press Office 
     statistic, ``If confirmed, Sotomayor would bring more federal 
     judicial experience to the Supreme Court than any justice in 
     100 years, and more overall judicial experience than anyone 
     confirmed for the Court in the past 70 years''.
       Law enforcement is a profession that is constantly evolving 
     and we believe that there is a seat among the top of that 
     criminal justice system for this great American. We trust 
     that the Senate will look at her character and act quickly on 
     her confirmation.
           Respectfully,
                                               Joseph A. McMillan,
     National President.
                                  ____

         Federal Hispanic Law Enforcement Officers Association,
                                         Tampa, FL, July 16, 2009.
     Hon. Patrick Leahy,
     Chairman,
     Hon. Jeff Sessions,
     Ranking Member,
     Committee on the Judiciary, U.S. Senate, Washington, DC.
       Dear Senators Leahy and Sessions, The Federal Hispanic Law 
     Enforcement Officers Association (FHLEOA) is pleased to join 
     the myriad of other law enforcement groups and associations 
     throughout our nation in support of the president's 
     nomination of Judge Sonia Sotomayor to serve as associate 
     justice of the United States Supreme Court.
       Judge Sotomayor's personal story, educational achievements, 
     prosecutorial history, and overall common sense approach and 
     commitment to the law and law enforcement are indeed 
     impressive. But more impressive is the fact that if 
     confirmed, she will bring more federal judicial experience to 
     our highest court than any justice in the last hundred years.
       Her record as a public servant is simply outstanding, and 
     her court rulings are indicative of a clear understanding of 
     the law. We believe our nation will be well served with Judge 
     Sotomayor as an Associate Justice of the Supreme Court.
       FHLEOA is proud to endorse the nomination of Judge 
     Sotomayor to the U.S. Supreme Court and we look forward to 
     her quick confirmation by the Senate.
           Respectfully,
                                                Sandalio Gonzalez,
     National President.
                                  ____

                                            United States Hispanic


                                          Chamber of Commerce,

                                    Washington, DC, June 23, 2009.
     Hon. Patrick Leahy,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Leahy: On behalf of the United States Hispanic 
     Chamber of Commerce (USHCC)--the national representative for 
     almost 3 million Hispanic-owned businesses--and the 
     undersigned organizations, we write to express our support 
     for the confirmation of Judge Sonia Sotomayor as Associate 
     Justice of the Supreme Court of the United States. In her 
     seventeen years of service to date as a federal trial and 
     appellate judge, and throughout the course of her entire 
     career, Judge Sotomayor has strongly distinguished herself 
     through her outstanding intellectual credentials and her deep 
     respect for the rule of law, establishing herself beyond 
     question as fully qualified and ready to serve on the U.S. 
     Supreme. Court.
       Judge Sotomayor will be an impartial, thoughtful, and 
     highly-respected addition to the Court. Her unique personal 
     background is compelling, and will be both a tremendous asset 
     while serving on the Court and a historic inspiration to 
     others. Her legal career further demonstrates her 
     qualifications to serve in this position. After graduating 
     from Yale Law School, where she served as an editor for the 
     Yale Law Journal, Judge Sotomayor spent five years as a 
     criminal prosecutor in Manhattan. She then spent eight years 
     as a corporate litigator with the firm of Pavia and Harcourt, 
     where she gained expertise in a wide range of civil law areas 
     such as contracts and intellectual property. In 1992, on the 
     bipartisan recommendation of her home-state Senators, 
     President George H.W. Bush appointed her District Judge for 
     the Southern District of New York. In recognition of her 
     outstanding record as a trial judge, President Bill Clinton 
     elevated her to the U.S. Court of Appeals in 1998.
       During her long tenure on the federal judiciary, Judge 
     Sotomayor has participated in thousands of cases, and has 
     authored approximately 400 opinions at the appellate

[[Page S8742]]

     level. She has demonstrated a thorough understanding of a 
     wide range of highly complicated legal issues, and has a 
     strong reputation for deciding cases based upon the careful 
     application of the facts to the law. Her record and her 
     inspiring personal story indicate that she understands the 
     judiciary's role in protecting the rights of all Americans, 
     in ensuring equal justice, and respecting our Constitutional 
     values--all within the confines of the law. Moreover, her 
     well-reasoned and pragmatic approach to cases will allow 
     litigants to feel, regardless of the outcome, that they were 
     given a fair day in court.
       Given her stellar record and her reputation for fairness, 
     Judge Sotomayor has garnered broad support across partisan 
     and ideological lines, earning glowing praise from colleagues 
     who know her best in the judiciary, law enforcement 
     community, academia, and the legal profession. Her Second 
     Circuit colleague (and also her former law professor) Judge 
     Guido Calabresi describes her as ``a marvelous, powerful, 
     profoundly decent person. Very popular on the court because 
     she listens, convinces and can be convinced--always by good 
     legal argument. She's changed my mind, not an insignificant 
     number of times.'' Judge Calabresi also discredited concerns 
     about Judge Sotomayor's bench manner, explaining that he 
     compared ``the substance and tone of her questions with those 
     of his male colleagues and his own questions. And I must say 
     I found no difference at all.'' Judge Sotomayor's colleague 
     Judge Roger Miner, speaking of her ideology, argued that ``I 
     don't think I'd go as far as to classify her in one camp or 
     another. I think she just deserves the classification of 
     outstanding judge.'' And New York District Attorney Robert 
     Morgenthau, her first employer out of law school, hailed her 
     for possessing ``the wisdom, intelligence, collegiality, and 
     good character needed to fill the position for which she has 
     been nominated.''
       We urge you not to be swayed by the efforts of a small 
     number of ideological extremists to tarnish Judge Sotomayor's 
     outstanding reputation as a jurist. These efforts have 
     included blatant mischaracterizations of a handful of her 
     rulings, as well as efforts to smear her as a racist based 
     largely on one line in a speech that critics have taken out 
     of context from the rest of her remarks. The simple fact is 
     that after serving seventeen years on the federal judiciary 
     to date, she has not exhibited any credible evidence 
     whatsoever of having an ideological agenda, and certainly not 
     a racist one. We hope that your committee will strongly 
     reject the efforts at character assassination that have taken 
     place since her nomination.
       In short, Judge Sotomayor has an incredibly compelling 
     personal story and a deep respect for the Constitution and 
     the rule of law. Her long and rich experiences as a 
     prosecutor, litigator, and judge match or even exceed those 
     of any of the Justices currently sitting on the Court. 
     Furthermore, she is fair-minded and ethical, and delivers 
     thoughtful rulings in cases based upon their merits. For 
     these reasons, the undersigned organizations strongly urge 
     you to swiftly confirm Judge Sotomayor to the Supreme Court.
           Sincerely,
     ushcc
                                  ____

                                                  Arizona Hispanic


                                          Chamber of Commerce,

                                                    June 29, 2009.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: As the new 
     President and CEO of the Arizona Hispanic Chamber of 
     Commerce, I write to express our organization's support for 
     the confirmation of Judge Sonia Sotomayor as Associate 
     Justice of the Supreme Court of the United States. In her 
     seventeen years of service to date as a federal trial and 
     appellate judge, and throughout the course of her entire 
     career, Judge Sotomayor has strongly distinguished herself 
     through her outstanding intellectual credentials and her deep 
     respect for the rule of law, establishing herself beyond 
     question as fully qualified and ready to serve on the Supreme 
     Court.
       Judge Sotomayor will be an impartial, thoughtful, and 
     highly-respected addition to the Supreme Court. Her unique 
     personal background is compelling, and will be both a 
     tremendous asset to her on the Court and a historic 
     inspiration to others. Her legal career further demonstrates 
     her qualifications to serve on our nation's highest court.
       During her long tenure on the federal judiciary, Judge 
     Sotomayor has participated in thousands of cases, and has 
     authored approximately 400 opinions at the appellate level. 
     She has demonstrated a thorough understanding of a wide range 
     of highly complicated legal issues, and has a strong 
     reputation for deciding cases based upon the careful 
     application of the facts of cases to the law.
       Judge Sotomayor has garnered broad support across partisan 
     and ideological lines, earning glowing praise from colleagues 
     in the judiciary, law enforcement community, academia, and 
     legal profession who know her best.
       I urge you not to be swayed by the efforts of a small 
     number of detractors who only wish to tarnish Judge 
     Sotomayor's outstanding reputation as a jurist. These efforts 
     have included blatant mischaracterizations of a handful of 
     her rulings, as well as efforts to smear her as a racist 
     based largely on one line in a speech that critics have taken 
     out of context from the rest of her remarks. We hope that 
     your committee will strongly reject the efforts at character 
     assassination that have taken place since her nomination.
       In short, Judge Sotomayor has an incredibly compelling 
     personal story and a deep respect for the Constitution and 
     the rule of law. Her long and rich experiences as a 
     prosecutor, litigator and judge match or even exceed those of 
     any of the Justices currently sitting on the Court. 
     Furthermore, she is fair-minded and ethical, and delivers 
     thoughtful rulings in cases based upon their merits. For 
     these reasons, I strongly urge you to vote to confirm Judge 
     Sotomayor.
           Respecfully,
                                             Armando A. Contreras,
                                                President and CEO,

     Arizona Hispanic Chamber of Commerce.
                                  ____


                                               Fort Worth Hispanic


                                          Chamber of Commerce,

                                                     17 July 2009.
     Hon. Patrick J. Leahy,
     Senator of the United States of America, Chairman, Committee 
         on the Judiciary, U.S. Senate, Washington, DC.
     Subject: Judge Sonia Sotomayor confirmation recommendation.
       Dear Senator Leahy: The Fort Worth Hispanic Chamber of 
     Commerce's Board of Directors and membership are writing on 
     behalf of Judge Sonia Sotomayor's confirmation as the next 
     United States Supreme Court Justice. We recommend your 
     committee's most favorable and highest recommendation 
     possible to the Senate in favor of her confirmation.
       The Fort Worth Hispanic Chamber of Commerce, including 
     experienced federal and state court attorneys, have reviewed 
     Judge Sotomayor's education, experience and her opinions as a 
     jurist; it is our consensus she is eminently qualified, 
     talented and possesses the desire to be an excellent Supreme 
     Court justice. It is clear from an early age she has been 
     driven to excel; a 1976 Princeton University summa cum laude 
     graduate and a graduate of the Yale University School of Law. 
     While at Yale Law School, she was selected to serve as an 
     editor of the Yale Law Journal. Her legal experience includes 
     serving as a New York County Assistant District Attorney, and 
     partner with the law firm of Pavia & Harcourt focusing on 
     intellectual property, international litigation and complex 
     export trading cases. Judge Sotomayor has distinguished 
     herself as a U.S. District Court Judge for the Southern 
     District of New York and now as judge with the United States 
     Court of Appeals for the Second Circuit.
       Her proven record on a variety of topics, issues and legal 
     reasoning make her an excellent nomination. It is our firm 
     belief Judge Sotomayor will apply and interpret the legal 
     precedents under the law and will uphold the law with equal 
     justice. We highly endorse Judge Sotomayor's confirmation and 
     urge your vote of approval at your earliest convenience,
           Sincerely,
                                                     Rosa Navejar,
                                                    President/CEO.

  Mr. MENENDEZ. Mr. President, with that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I am honored to join my distinguished 
colleague from New Jersey here today on the Senate floor to speak in 
support of the confirmation of Judge Sonia Sotomayor as the next 
Associate Justice of the U.S. Supreme Court.
  I had the privilege to sit on the Judiciary Committee for her 
confirmation hearing, and I join all of my committee colleagues on both 
sides of the aisle who have complimented Chairman Leahy for a very 
well-run hearing. I was proud to vote for Judge Sotomayor in the 
Judiciary Committee, and I will be proud to vote for her confirmation 
here on the Senate floor.
  Judge Sotomayor's remarkable education and professional 
qualifications, her commitment to public service, her uncontroversial 
17-year record on the Federal bench--longer than any nominee in 100 
years--her responsiveness and patient judicial temperament at the 
hearing, all confirm to me her pledge that she will respect the role of 
Congress as representatives of the American people; that she will 
decide cases based on the law and the facts before her; that she will 
not prejudge any case but listen to every party that comes before her; 
and that she will respect precedent and limit herself to the issues 
that the Court must decide; in short, that she will use the broad 
discretion of a Supreme Court Justice wisely.

[[Page S8743]]

  I applaud those of my colleagues who have acknowledged that Judge 
Sotomayor falls well within the mainstream of the American legal 
profession. At the same time, it is disappointing that so few 
Republican colleagues have been willing to recognize her clear 
qualifications for our highest Court. The nearly unanimous party-line 
opposition offered by Republicans in committee and here on the floor 
raises serious concerns whether some of my colleagues would ever be 
willing to vote for anyone outside of the Federalist Society. To my 
Republican colleagues in opposition, I ask: What Democratic nominee 
would you vote for, if not Judge Sotomayor, with her vast experience, 
her commitment to the rule of law, proven indisputably over 17 years, 
her remarkable credentials, and her extraordinary moving American life 
story?
  Unfortunately, Judge Sotomayor seems to be walking proof that 
conservative political orthodoxy is now their confirmation test, masked 
as concerns about judicial activism. Many of my Republican colleagues 
unfairly ignore her long record to base criticisms on strained 
interpretations of a few routine and appropriate circuit court opinions 
and a few remarks taken out of context. Those criticisms feel, quite 
frankly, like the criticisms of someone who is determined to find fault 
with a nominee.
  Take, for example, the New Haven firefighters case. The per curiam 
opinion in Ricci was based on controlling second circuit and Supreme 
Court precedent. The sixth circuit took the same approach in a similar 
case arising in Memphis. The role of a circuit court is to follow 
existing precedence of the Supreme Court and the circuit court. That is 
what the Ricci per curiam did. The Supreme Court may have reversed, but 
it did so 5 to 4 on the basis of an entirely new test it created. It is 
absurd to call Judge Sotomayor an activist for following existing 
precedent. If you want a judicially conservative opinion, the Ricci per 
curiam is just that.
  The decision in Maloney was also properly conservative in a judicial 
sense. It approaches with caution a newly minted and narrowly enacted 
constitutional right whose extension to the States would upset 
generations of practice and experience by sovereign States regulating 
guns within their borders. A seventh circuit panel, with two very 
prominent conservative judges on it, correctly did exactly the same 
thing. A ninth circuit panel reached a different conclusion, and then 
that decision was vacated by the circuit to reconsider that case en 
banc.
  Rather than engaging in a serious inquiry of Judge Sotomayor's 
fitness for the Supreme Court, many of my colleagues have made this 
nomination into a referendum on whether the newly minted right to bear 
arms should be incorporated against the States for the first time in 
our Nation's history. This is doubly unfair. First, Judge Sotomayor 
could not answer questions at her hearing that would suggest how she 
would rule in later cases. That is inappropriate. Second, it is 
inappropriate to try to force on a judge a particular political view as 
the price of admission to her judicial office.
  Criticisms of a few stray lines in Judge Sotomayor's various speeches 
are equally perplexing. Judge Sotomayor's long and noncontroversial 17-
year judicial record should allay any concerns about those remarks, but 
so should the context of those speeches themselves. The ``wise Latina'' 
comment we have heard so much about came in a speech that argued how 
important it is for judges to guard against bias and to be aware of 
their own prejudices. Is it not better and truer to admit that we all 
have prejudices we must manage than to pretend that White males form 
some sort of ideal cultural baseline that has no biases?
  Senator Specter said it well at the committee vote. ``There is 
nothing wrong with a little ethnic pride and a desire to encourage her 
law student audience.'' Maybe we should try to put ourselves in their 
shoes. Perhaps, with a little empathy ourselves, it might be easier to 
understand how a profession and a judiciary dominated by White males 
might look to those young law students, and how important a little 
encouragement to them might be that their experiences might give them 
something valuable to contribute; that they are not the exception; that 
they are welcome and fully a part of our society, and that they bring 
something valuable not only to the profession but, one day, perhaps, 
even to the judiciary.
  In sum, my Republican colleagues' criticisms of Judge Sotomayor 
appear to be grounded in conservative political idealogy rather than 
legitimate concern that Judge Sotomayor is not fit to serve on the 
Supreme Court, grounded in a desire for more of the rightwing Justices 
who in recent years have filled out a conservative wing on the Supreme 
Court. That wing has marched the Court deliberately to the right in the 
last few years, completely discrediting the Republican claim that 
judges are mere ``umpires.''
  Jeffrey Toobin is a well-respected legal commentator, particularly 
focusing on the Supreme Court. He has recently reported:

       In every major case since he became the Nation's 17th Chief 
     Justice, Roberts has sided with the prosecution over the 
     defendant, the State over the condemned, the executive branch 
     over the legislative, and the corporate defendant over the 
     individual plaintiff. And is it a coincidence that this 
     pattern has served the interests and reflected the values of 
     the contemporary Republican Party?

  Some coincidence. Some umpire.
  The phrase ``liberal judicial activism'' is now conservative speak 
for any outcome the far right dislikes. They did not use it when the 
conservative block of the Court announced, by the barest of a 5-to-4 
margin, an individual right to bear arms that had gone unnoticed by the 
Supreme Court for the first 220 years of its history. If that is not an 
activist decision, the term has no meaning. It is just activism that 
conforms with a deliberate Republican strategy of many years duration 
to pack onto America's courts proven conservative judges who will 
deliver the political goods they seek.
  Setting aside all this politics, we should also never forget, never 
overlook the historic role that judges play in protecting the less 
powerful among us. We should always appreciate how a real-world 
understanding of the real-life impact of judicial decisions is a proper 
and necessary part of the process of judging.
  Judge Sotomayor's wide experience, I hope, will bring her a sense of 
the difficult circumstances faced by the less powerful among us--the 
woman on the phone, shunted around the bank from voice mail to voice 
mail for hours as she tries to find someone to help her avoid 
foreclosure for her home; the family struggling to get by in the 
neighborhood where the police only come with raid jackets on; the 
couple up late at night at the kitchen table after the kids are in bed 
sweating out how to make ends meet that month; or the man who believes 
a little differently or looks a little different or thinks things 
should be different. If Justice Sotomayor's wide experience gives her 
empathy for those people so that she gives them a full and fair hearing 
and seeks to understand the real-world impact of her decisions on them, 
she will be doing nothing wrong--nothing wrong by the measure of 
history, nothing wrong by the measure of justice.

  Experience, judgment, wise use of discretion, and a willingness to 
stand against oppression have always been the historic hallmarks of a 
great judge.
  As to experience, Justice Oliver Wendell Holmes famously explained:

       The life of the law has not been logic: it has been 
     experience. The felt necessities of the time the prevalent 
     moral and political theories, intuitions of public policy, 
     avowed or unconscious, even the prejudices which judges share 
     with their fellow-men have had a good deal more to do than 
     the syllogism in determining the rules by which men should be 
     governed. The law embodies the story of a nation's 
     development through many centuries, and it cannot be dealt 
     with as if it contained only the axioms and corollaries of a 
     book of mathematics.

  As to judgment, Justice John Paul Stevens has observed:

       [T]he work of federal judges from the days of John Marshall 
     to the present, like the work of the English common-law 
     judges, sometimes requires the exercise of judgment--a 
     faculty that inevitably calls into play notions of justice, 
     fairness, and concern about the future impact of a decision.

  As to discretion, Justice Benjamin Cardozo wrote:

       The judge, even when he is free, is still not wholly free. 
     He is not to innovate at pleasure. He is not a knight-errant, 
     roaming at

[[Page S8744]]

     will in pursuit of his own ideal of beauty or of goodness. He 
     is to draw his inspiration from consecrated principles. He is 
     not to yield to spasmodic sentiment, to vague and unregulated 
     benevolence. He is to exercise a discretion informed by 
     tradition, methodized by analogy, disciplined by system, and 
     subordinated to ``the primordial necessity of order in the 
     social life.'' Wide enough in all conscience is the field of 
     discretion that remains.

  And, as Alexander Hamilton explained in the Federalist Papers, courts 
were designed to be our guardians against ``those ill humors, which the 
arts of designing men, or the influence of particular conjunctures, 
sometimes disseminate among the people . . . and which . . . have a 
tendency . . . to occasion . . . serious oppressions of the minor party 
in the community.'' Those oppressions tend to fall on the poor and 
voiceless. But as Hamilton noted, ``[c]onsiderate men, of every 
description ought to prize whatever will tend to beget or fortify that 
temper in the courts: as no man can be sure that he may not be tomorrow 
the victim of a spirit of injustice, by which he may be a gainer to-
day.'' We should not discard the wisdom of centuries.
  Experience, judgment, discretion, and protection from oppression--the 
standard for judges of Hamilton, Holmes, Cardozo, and Stevens. History 
stands with them. And thoughtful people will note that empathy is a 
common thread through each of these characteristics.
  Why might empathy matter? When might it make a difference? Take, for 
example, the history of the Colfax massacre.
  Go back to Sunday, April 13, 1873 when a gang of White men murdered 
more than 60 Black freedmen in Colfax, LA. Some were burned in a 
courthouse where they had taken refuge; others were shot as they fled 
the burning courthouse; others were taken prisoner and then executed. 
U.S. Attorney James Roswell Beckwith determined to prosecute white 
citizens involved in the Colfax Massacre--not a popular call in those 
days. The case was tried before a U.S. District Judge William B. Woods, 
who determined that rule of law should prevail in his district. 
Predictably, polite White society was outraged. It took notable human 
empathy in that place and time to see the massacre of the Black 
freedmen as a crime, and to contemplate trying White men for the murder 
of Black men. The case was brought as one of the first applications of 
the Federal Enforcement Act, implementing the Constitution's new 14th 
amendment, so there was wide room for judicial discretion in that 
uncharted area of law--no ``balls and strikes'' here. District Judge 
Woods assured a fair trial, but he also was prepared to honor 
Congress's desire that outrages upon the Black community should be 
punished as crime. He had sufficient empathy with the widows and 
children of the slain freedmen to take seriously their need for 
vindication, and he had sufficient courage to face the scorn and anger 
of the White community.
  Another judge was involved, U.S. Supreme Court Justice Joseph P. 
Bradley, who under the procedural rules of the time ``rode circuit'' 
for Louisiana, and could sit in on trials. And sit in he did. He had no 
sympathy for the former slaves, and little regard for Congress's intent 
to punish the abuse of freedmen. Disagreeing from the trial court bench 
with Judge Woods, Justice Bradley found repeated technical faults with 
the indictments, took a restricted view of the authorities of the 14th 
amendment, dismissed the charges, and released the defendants to flee, 
on low bail, pending an appeal.
  The U.S. Supreme Court upheld its colleague Bradley's opinions, 
thereby gutting the 14th amendment and the Enforcement Act for a 
generation, and a wave of murder and violence by Klansmen and White 
League members, emboldened by de facto immunity from prosecution, swept 
the South. Reconstruction was vitiated in those weeks. Justice, for the 
murder of a Black man by a White, departed the South for nearly a 
century.
  History and the law ultimately proved district Judge Woods correct, 
but how much turned on the character of two judges: one who had the 
empathy to see Black men as victims of crime, and the courage to 
outrage White opinion by allowing the trial of White community leaders, 
before a mixed jury no less; the other a judge who valued the status 
quo, and recoiled from any shock to proper White opinion and authority; 
indeed, who was the reflection of that proper opinion.
  That is what we mean by empathy, and while the divisions in our 
society are less today, there are still people who feel voiceless, 
whose voices a judge must be attuned to hear; there are still Americans 
who come to court bearing disadvantages that have nothing to do with 
the merits of their case. Empathy to look through those disadvantages 
to see the real merits of the case, even when it is unpopular or 
offends the power structure is the hallmark of a great judge. The words 
of Hamilton, Holmes, Stevens, and Cardozo I have quoted display it as 
history; the contrasting approaches of the two judges after the Colfax 
massacre display it as justice.
  My Republican colleagues' misunderstanding of judicial history has 
led to a missed opportunity for bipartisan support of a highly 
qualified and moderate judge who falls well within the mainstream of 
American legal thought. We could be celebrating the first Latina 
justice of the Supreme Court as a great American achievement. Instead 
we are having to defend basic principles of American history from 
assault from the right. I hope that, as the future looks back on this 
day, it will be the historic nature of this nomination that will be 
remembered, not the strange and strained efforts to impose right-wing 
political orthodoxy on the courts that defend our constitutional 
rights.
  I look forward to Judge Sotomayor's service as an excellent Supreme 
Court Justice. I will vote proudly for her confirmation.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter of support of Justice Sotomayor from New York City's mayor, 
Michael Bloomberg.
  I also ask to have printed in the Record a letter of support for 
Judge Sotomayor from former FBI Director Louis Freeh.
  I yield the floor.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                             The City of New York,


                                          Office of the Mayor,

                                       New York, NY. July 7, 2009.
     Hon. Patrick J. Leahy,
     Chairman, Judiciary Committee, U.S. Senate
     Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, Judiciary Committee,
     U.S. Senate,
     Washington, DC.
       Dear Chairman Leahy and Senator Sessions: As Mayor of the 
     largest city in the country and the place where Judge Sonia 
     Sotomayor has spent her career, I strongly support President 
     Barack Obama's nomination of Judge Sotomayor to serve as an 
     Associate Justice of the United States Supreme Court.
       One of my responsibilities as Mayor is to appoint judges to 
     New York's Family and Criminal Courts, which gives me the 
     opportunity to assess the qualifications of many judicial 
     candidates. Over the past seven and half years, I have 
     interviewed candidates for more than 40 judicial seats and 
     have, like you, developed a strong sense of the qualities 
     that will strengthen our justice system. Based on this 
     experience, I have great confidence that Judge Sotomayor's 
     rulings demonstrate her knowledge of the law, objectivity, 
     fairness, and impartiality, which are essential qualities for 
     any judge. Just as important, she possesses the character, 
     temperament, intelligence, integrity, and independence to 
     serve on the nation's highest court, and her well-respected 
     record of interpreting the law and applying it to today's 
     world is perhaps the best indication of her exceptional 
     ability as a judge.
       Judge Sotomayor's impressive 30-year career has given her 
     experience in nearly all areas of the law. As an Assistant 
     District Attorney in Manhattan, she earned a reputation as an 
     effective prosecutor. As a Judge in the Southern District of 
     New York, she established a record that amply supported her 
     appointment to the Second Circuit And in her current role as 
     a Judge in the U.S. Court of Appeals for the Second Circuit, 
     she is admired for her knowledge and understanding of legal 
     doctrine, having taken part in over 3,000 panel decisions and 
     authored close to 400 opinions. In each role, she has served 
     the public with integrity and diligence.
       Judge Sonia Sotomayor is an outstanding choice for the 
     United States Supreme Court, and I stand firmly behind her 
     candidacy.
           Sincerely,
                                             Michael R. Bloomberg,
                                                            Mayor.

[[Page S8745]]

     
                                  ____
                                Freeh Sporkin & Sullivan, LLP,

                                                     July 9, 2009.
     Hon. Patrick Leahy,
     Chairman, U.S. Senate Judiciary Committee, Washington, DC.
     Hon. Jeff Sessions,
     Ranking Member, U.S. Senate Judiciary Committee, Washington, 
         DC.
       Dear Senators: It is with tremendous pride in a former 
     colleague that I write to recommend wholeheartedly that you 
     confirm Sonia Sotomayor to be an Associate Justice of the 
     Supreme Court. Judge Sotomayor has the extensive experience 
     and the judicial qualities that make her eminently qualified 
     for this ultimate honor and I look forward to watching her 
     take her place on the Nation's highest Court.
       I first met Judge Sotomayor in 1992 when she was appointed 
     to the United States District Court for the Southern District 
     of New York. As the then newest judge in the storied 
     Courthouse at Foley Square in lower Manhattan, we followed 
     the tradition of having the newly-minted judge mentored by 
     the last-arriving member of the bench. Despite the 
     questionable wisdom of this practice, I had the privilege of 
     serving as Judge Sotomayor's point of contact for orientation 
     and to help her get underway as she took on a full, complex 
     civil and criminal case docket.
       A few weeks of ``New Judges School'' sponsored by the 
     Administrative Office of the Courts does not in any 
     meaningful way begin to prepare a new District Judge for the 
     unrelenting rigor of conferences, motions, hearings, 
     applications, trials and other miscellaneous duties--
     including appeals from the Bankruptcy Court--which instantly 
     construct what often appears to be an overwhelming schedule 
     for a new judge. To make matters more challenging, when I was 
     a new judge the Court followed the tradition of allowing the 
     active judges to select a fixed number of their pending cases 
     for reassignment to the new arrival.
       Into this very pressurized and unforgiving environment, 
     where a new judge's every word, decision, writing and 
     question is scrutinized and critiqued by one of the harshest, 
     professional audiences imaginable, Judge Sotomayor quickly 
     distinguished herself as a highly competent judge who was 
     open-minded, well-prepared, properly demanding of the lawyers 
     who came before her, fair, honest, diligent in following the 
     law, and with that rare and invaluable combination of legal 
     intellect and ``street smarts.''
       As I spent a lot of time reading her opinions, observing 
     her in the courtroom conducting the busy, daily docket of a 
     trial judge, and discussing her cases and complex legal 
     issues, I was greatly impressed with how quickly she mastered 
     and employed the critical skills of her new position.
       To me, there is no better measure by which to evaluate a 
     judge than the standards of the former Chief Judge of the 
     U.S. District Court of Minnesota and nationally renowned 
     American jurist, Edward J. Devitt. A former Member of 
     Congress and World War II Navy hero, Judge Devitt was 
     appointed to the federal bench by President Eisenhower and 
     became one of the country's leading trial judges and teacher 
     of judges. A standard Jury Instruction textbook (Devitt and 
     Blackmun) as well as the profession's most coveted award 
     recognizing outstanding judges, the Devitt Award, bears his 
     name.
       I recently had the honor of participating in the dedication 
     of a courtroom named for Judge Devitt. The judges and lawyers 
     who spoke in tribute to Judge Devitt very ably and 
     insightfully described the critical characteristics which 
     define and predict great judges. But rather than discuss 
     Judge Devitt's many decisions, particular rulings or the 
     ``sound bite'' analyses which could have been parsed from the 
     thousands of complex and fact specific cases which crossed 
     his docket, they focused on those ultimately more profound 
     and priceless judicial qualities which ensure that Article 
     Three judges with lifetime tenure uphold the Rule of Law with 
     fairness, courage and justice for all.
       Teaching hundreds of new American judges over several 
     decades, Judge Devitt liked to use a ``nutshell version'' for 
     emphasis and because he always got right to the heart of 
     things. So he offered three rules:
       I. ``Judging takes more than mere intelligence;
       2. Always take the bench prepared. Listen well to all 
     sides, stay open as you are listening and recognize any pre-
     conceptions that you may bring to the matter. Then, make a 
     decision and never look back;
       3. Call them as you see them.''
       Sonia Sotomayor would have gotten an ``A plus'' from the 
     ``Judge from Central Casting,'' as Judge Devitt was often 
     called by his peers.
       A great part of Judge Devitt's legacy is his famous ``Ten 
     Commandments to Guide the New Federal Judge,'' which he gave 
     me, and which I passed on to Judge Sotomayor:
       1. ``Be Kind;
       2. Be Patient;
       3. Be Dignified;
       4. Don't Take Yourself Too Seriously;
       5. Remember That a Lazy Judge Is a Poor One;
       6. Don't Be Dismayed When Reversed;
       7. Remember There Are No Unimportant Cases;
       8. Don't Impose Long Sentences;
       9. Don't Forget Your Common Sense; and
       10. Pray For Divine Guidance.''
       In my brief role as Judge Sotomayor's ``second seat'' on 
     the Southern District trial bench, I probably spent more time 
     with her in those first months than any other member of our 
     great Court. And I was delighted to observe and conclude that 
     she exhibited all the desired characteristics that Judge 
     Devitt prescribed for his ``students.''
       Since 1992 I have followed Judge Sotomayor's career on the 
     bench both as a trial judge and later as a member of our 
     Second Circuit Court of Appeals. Along with my former 
     colleague judges and lawyers, we have seen her grow and 
     mature into a truly outstanding judge, who embodies all of 
     Judge Devitts's wise counsel and the most prized 
     characteristics of judicial courage, integrity, intelligence 
     and fair adjudication of the Rule of Law.
       Judge Sotomayor's early demonstration of judicial 
     restraint, appropriate deference to the other two Branches of 
     government and her fidelity to upholding the rule of law can 
     perhaps best be seen in a 1998 case. Sitting as a District 
     Judge, she carefully heard a minimum wage lawsuit and, in 
     recognition of the limits of judicial power, she relied on 
     the statutory text and precedent to reach her decision: ``The 
     question of whether such a program should be exempted from 
     the minimum wage laws is a policy decision either Congress or 
     the Executive Branch should make.''
       Judge Sotomayor will bring great legal as well as judicial 
     experience to the Supreme Court and will serve there with 
     distinction in the fine tradition of Judge Devitt. As the 
     only ``trial judge'' on the current Court, she will import an 
     immense wealth of experience which comes uniquely from judges 
     who preside over cases with witnesses, juries, real time 
     procedural and evidence rulings and the challenging (and 
     unpredictable) dynamics of a trial courtroom. It will also be 
     a very valuable asset for the Court to have a former criminal 
     prosecutor (it has only one now) who was widely respected by 
     judges, defense attorneys and law enforcement officers.
       Most importantly, Judge Sotomayor will continue to 
     exemplify the ``Devitt Rules'' we want all our judges to 
     follow, and the courage, integrity and experience required to 
     protect the Rule of Law. The efforts by some to discredit the 
     Judge are far afield from the eminent jurist whom I know, and 
     I hope that no Senator will be misled or motivated by 
     partisan rancor to vote against someone who so fully fits the 
     measure of what we should want in a Supreme Court justice. I 
     hope you will consider her nomination expeditiously so she is 
     confirmed and prepared to participate in the Court's first 
     session on September 9, 2009.
           Sincerely,
                                                   Louis J. Freeh.

  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I enjoyed my colleague's remarks. I don't 
agree with him, but he is certainly a great colleague and we appreciate 
him.
  Mr. President, I rise today to explain why I cannot support the 
nomination of Judge Sonia Sotomayor to be an Associate Justice of the 
Supreme Court. I do so with regret because the prospect of a woman of 
Puerto Rican heritage serving on the Supreme Court says a lot about 
America. Judge Sotomayor has achieved academic and professional 
success, and I applaud her public service. But in the end, her record 
creates too many conflicts with fundamental principles about the 
judiciary in which I deeply believe.
  It did not have to be this way. President Obama could have taken a 
very positive step for our country by choosing a Hispanic nominee whom 
all Senators could support. President Obama could have done so and I 
regret that he did not.
  I commend the distinguished chairman and ranking member of the 
Judiciary Committee, Senators Leahy and Sessions, for conducting a fair 
and thorough confirmation hearing. Judge Sotomayor herself said that 
the hearing was as gracious and fair as she could have asked for.
  I evaluate judicial nominees by focusing on qualifications, which 
include not only legal experience but, more importantly, judicial 
philosophy. Judge Sotomayor's approach to judging is more important to 
me than her resume. I ask unanimous consent to have printed in the 
Record following my remarks an article that I published earlier this 
year in the Harvard Journal of Law & Public Policy. It is titled ``The 
Constitution as the Playbook for Judicial Selection'' and explains more 
fully the principles I will mention here.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 1)
  Mr. HATCH. President Obama has described the kind of judge he intends 
to appoint. As a Senator, he said that judges decide cases based on 
their ``deepest values . . . core concerns . . . broader perspectives . 
. . and the depth and breadth of [their] empathy.'' As a presidential 
candidate, he pledged to

[[Page S8746]]

appoint judges who indeed have empathy for certain groups. And as 
President, he has said that a judge's personal empathy is an essential 
ingredient in judicial decisions.
  This standard is seriously out of sync with mainstream America. By 
more than 3 to 1 Americans believe that judges should decide cases 
based on the law as written, rather than on their own sense of fairness 
or justice. The American people reject President Obama's standard for 
the kind of judge we need on the Federal bench.
  At the Judiciary Committee hearing, Judge Sotomayor said that her 
judicial philosophy is simply fidelity to the law. While some of my 
Democratic committee colleagues said that they wanted to avoid slogans, 
codewords, and euphemistic phrases, they apparently accepted this one 
at face value. Unfortunately, it begs rather than answers the important 
questions.
  Some Senators on the other side of the aisle try to confine concerns 
about Judge Sotomayor's record to a single case and a single phrase. 
That political spin, I will admit, makes for a quotable sound-bite. But 
even a casual observer of this process knows that this political spin 
is simply not true.
  Ironically, those who would narrowly characterize the case against 
confirmation want us to confine our examination of Judge Sotomayor's 
record only to her cases while ignoring her speeches and articles. A 
partial review, however, cannot provide a complete picture. Appeals 
court decisions that are bound by Supreme Court precedent are not the 
same as Supreme Court decisions freed from such constraints. Taking 
Judge Sotomayor's entire record seriously not only gives us more of the 
information we need, but also gives her the respect she deserves.
  Debates over judicial nominations are debates over judicial power, 
and America's founders gave us solid guidance about the proper role of 
judges in our system of government. Judges interpret and apply written 
law to decide cases. While judges cannot change the words of our laws, 
they can still control statutes and the Constitution by controlling the 
meaning of those words. That would result in the rule of judges, not 
the rule of law. To borrow Judge Sotomayor's phrase, judges would not 
have fidelity to the law, but fidelity to themselves.
  In September 2001, Judge Sotomayor introduced Justice Antonin Scalia 
when he spoke at Hofstra Law School. She repeated a legend about 
Justice Oliver Wendell Holmes and Judge Learned Hand. Like Judge 
Sotomayor, Judge Hand served on both the Southern District of New York 
and the Second Circuit. As they departed after having lunch, Judge Hand 
called out: Do justice, sir, do justice. Justice Holmes replied: That 
is not my job, my job is to apply the law.
  Is it a judge's role to do justice or to apply the law? President 
Obama says that a judge's personal empathy is an essential ingredient 
for doing justice. At the hearing on Judge Sotomayor's nomination, one 
of my Democratic colleagues invoked what he called ``America's common 
law inheritance'' to describe Federal judges with broad discretion to 
decide cases based on their personal notions of justice or fairness.
  That may be the judiciary some of my colleagues would prefer, but it 
is not the judiciary America's Founders gave us. Federal judges are not 
common-law judges. They may not decide cases based on subjective 
feelings they find inside themselves, but only on objective law they 
find outside themselves. Thankfully, the American people overwhelmingly 
say today what America's Founders said, that judges must follow the law 
rather than their personal empathy to decide cases.

  The question is which kind of Supreme Court Justice Sonia Sotomayor 
will be. In one speech that she gave several times over nearly a decade 
while she was on the bench, she spoke directly about how judges should 
approach deciding cases. In this speech, she said that factors such as 
race and gender affect how judges decide cases and, as she put it, 
``the facts I choose to see.'' She embraced the notion that there is no 
objectivity or neutrality in judging, and that impartiality is merely 
an aspiration which judges probably cannot achieve, and perhaps should 
not even attempt. She said that judges must decide when their personal 
sympathies and prejudices are appropriate in deciding cases.
  Judge Sotomayor and her advocates have tried unsuccessfully to blunt 
this speech's more controversial edges. Their claim that she used the 
speech solely to inspire young lawyers or law students, even if true, 
is irrelevant because the speech is controversial for its content, not 
its audience.
  My concern only grew after discussing this speech with Judge 
Sotomayor during the hearing. Rather than adequately defend or disavow 
these views, she presented a different, and contradictory, picture. I 
am not the only one who noticed. The Washington Post editorialized that 
Judge Sotomayor's attempts to explain away or distance herself from 
past statements ``were unconvincing and at times uncomfortably close to 
disingenuous, especially when she argued that her reason for raising 
questions about gender or race was to warn against injecting personal 
biases into the judicial process. Her repeated and lengthy speeches on 
the matter do not support that interpretation.''
  In another speech just a few months ago, Judge Sotomayor addressed 
whether judges may use foreign law to interpret and apply American law 
in deciding cases. The distinguished ranking member of the committee 
mentioned this as well. She said that foreign law ``will be very 
important in the discussion of how we think about the unsettled issues 
in our own legal system.'' She endorsed the idea that judges may, as 
they interpret American law, consider anything, from any source, that 
they find persuasive.
  Once again, Senators discussed this issue with Judge Sotomayor at her 
hearing. And once again, she neither defended nor disavowed these 
controversial statements but presented a different, contradictory 
picture. In her speech, she hoped that judges would continue to consult 
what others have said, including foreign law, to ``interpret our law in 
the best way we can.'' But in the hearing, she said that ``I will not 
use foreign law, to interpret the Constitution or American statutes.'' 
In her speech, she said that judges may use ideas from any source that 
they find persuasive. But in the hearing, she said that foreign law 
cannot be used to influence a legal decision. These different versions 
are clearly at odds with each other.
  Judge Sotomayor took a different tack in answering post-hearing 
questions. She said that decisions of foreign courts may not serve as 
``binding or controlling precedent'' in deciding cases. The issue, 
however, is not whether a decision by the Supreme Court of France 
literally binds the Supreme Court of the United States. Of course it 
does not. The issue is whether that foreign decision may influence our 
Supreme Court in determining what our statutes and the Constitution 
mean. And in her answers to post-hearing questions, Judge Sotomayor 
once again said that decisions of foreign courts can indeed be ``a 
source of ideas informing our understanding of our own constitutional 
rights.''
  In these speeches, Judge Sotomayor described how such things as race, 
gender, life experience, personal sympathies, or prejudices affect 
judges and their decisions. That is certainly possible. But I waited 
for her to say that judges have an obligation to eliminate the 
influence of these factors. I wanted her to say that because these 
things undermine a judge's impartiality, judges must be vigilant to 
prevent their influence. That would have given me more solace about 
what Judge Sotomayor's phrase, fidelity to the law, really means. But 
she never said it. Instead, she endorsed the notion that judges may 
look either inside themselves to their empathy, or outside to foreign 
law, for ideas and notions to guide their decisions.
  Turning to her cases, the Supreme Court has disagreed with Judge 
Sotomayor in nine of the ten cases it has reviewed, three of them in 
the most recent Supreme Court term alone. That is nine of her ten cases 
they reviewed. And these were not close decisions, either. The total 
vote in the cases reversing Judge Sotomayor was a lopsided 52-19.
  In one case, Judge Sotomayor had held that the Environmental 
Protection Agency could not consider cost-benefit analysis when 
adopting a regulation. The Supreme Court reversed

[[Page S8747]]

her, citing its own precedents extending back more than 30 years and 
holding that the EPA's use of cost-benefit analysis was well within the 
bounds of its statutory authority.
  In another case, Judge Sotomayor had reopened part of a bankruptcy 
proceeding that had closed more than 20 years ago to resurrect a tort 
suit. Justice Souter, whom Judge Sotomayor would replace, wrote the 
opinion for the Supreme Court's 7-2 decision reversing her.
  In another case, Judge Sotomayor declared unconstitutional a State 
law providing for political party election of judges because she felt 
the law did not give people what she called a ``fair shot.'' The 
Supreme Court unanimously reversed her, saying that traditional 
electoral practice ``gives no hint of even the existence, much less the 
content,'' of the fair-shot standard Judge Sotomayor had invented.
  In one case, the Supreme Court affirmed Judge Sotomayor's result but 
rejected her reasoning because her reading of the relevant statute 
``flies in the face of the statutory language.''
  And in the one case where the Supreme Court affirmed both Judge 
Sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. 
This is a very shaky record on appeal.
  The Ricci v. DeStefano case, which has been mentioned quite a lot 
around here, is one of the cases in which the Supreme Court reversed 
Judge Sotomayor. The Court reversed her result by a 5-4 vote but 
unanimously rejected her reasoning. In this case, Judge Sotomayor 
affirmed the city of New Haven's decision to throw out the results of a 
fairly designed and administered firefighter promotion exam because too 
few racial minorities passed it.
  This case presents troubling questions of both process and substance. 
Judge Sotomayor initially used a summary order that did not have to be 
circulated to the full Second Circuit. That bothered me a great deal, 
because judges know when they issue a summary order, the rest of the 
judges are not going to see it. She then converted it to a per curiam 
opinion that is permissible only when the law is entirely settled. The 
summary order and the per curiam opinion were each a mere single 
paragraph and neither appears to be an appropriate vehicle for deciding 
this challenging case.
  On the merits, Title VII of the 1964 Civil Rights Act prohibits two 
kinds of discrimination. It prohibits disparate treatment, which is 
intentional, and disparate impact, which may be unintentional. 
Disparate treatment focuses on the motivation of an employment 
decision, while disparate impact focuses on its effect. While 
discrimination cases typically involve one or the other, the Ricci case 
involved both. In this case, the city claimed it had to engage in 
disparate treatment of those who passed the promotion exam because it 
feared a disparate impact lawsuit by those who failed the exam.
  I point out that this case involved both disparate treatment and 
disparate impact because Judge Sotomayor and her advocates claim that 
her decision was based squarely on settled and longstanding Second 
Circuit and Supreme Court precedent. We have heard some of that here on 
the floor tonight. Contrary to her statement to me at the hearing, 
however, her one-paragraph opinion cited no precedent at all. The only 
case she cited was the district court opinion in that very case. But 
the district court actually acknowledged that this case was the 
opposite of the norm. Rather than those failing an employment test 
challenging the use of the results, in this case those who passed the 
test challenged the refusal to use the results. None of the precedents 
cited by the district court involved this kind of case.
  For this reason, six of Judge Sotomayor's Second Circuit colleagues 
believed that the full circuit should have reviewed her decision, 
arguing that the case raised important questions of first impression in 
the Second Circuit and the entire Nation. When it reversed Judge 
Sotomayor, the Supreme Court similarly observed that there were few, if 
any, precedents in any court even discussing the issue in this case.
  In a column published today in National Journal, the respected legal 
analyst Stuart Taylor carefully analyzed whether Judge Sotomayor's 
decision in Ricci was indeed compelled by precedent. We have all read 
Stuart Taylor over the years. He is one of the most prescient 
commentators and journalists with regard to the law. He concludes: 
``The bottom line is that Circuit precedents did not make Sotomayor 
rule as she did. Supreme Court precedent favored the firefighters. 
Sotomayor's ruling was her own.'' I ask unanimous consent that Mr. 
Taylor's column appear in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See Exhibit 2.)
  Mr. HATCH. In addition to claiming that her decision in Ricci was 
grounded in either Second Circuit or Supreme Court precedent, Judge 
Sotomayor offered at the hearing that the Sixth Circuit had addressed a 
similar issue in the same way. I can only assume she did so to imply 
that if the Sixth Circuit independently came to the same conclusion in 
a parallel case, then it would be difficult to say that Judge 
Sotomayor's decision in Ricci is controversial.
  I would first note that in Oakley v. City of Memphis, the Sixth 
Circuit actually analyzed the case, applied the law to the facts, and 
issued a real opinion. I wish Judge Sotomayor had done that in her 
case. But more importantly, Judge Sotomayor failed to mention that the 
Sixth Circuit case was issued 3 months after hers and, in fact, relied 
upon her decision as persuasive authority. That is no evidence that her 
decision was procedurally or substantively sound.
  Neither are her decisions on the Second Amendment right to keep and 
bear arms. Last year, in District of Columbia v. Heller, the Supreme 
Court clearly identified the proper analysis for deciding whether the 
Second Amendment binds States as well as the Federal Government. 
Several months later, Judge Sotomayor ignored that directive and clung 
to her previous insistence, following a different analysis the Supreme 
Court had discarded, that the right to bear arms does not apply to the 
States. She also held that the right to bear arms is so insignificant 
that virtually any conceivable reason is sufficient to justify a 
weapons restriction.
  When I asked her about these decisions at the hearing, she refused to 
acknowledge that the Supreme Court's so-called rational basis test is 
its most permissive legal standard. Yet this is practically a self-
evident truth in the law, one that Judge Sotomayor herself cited and 
applied just last fall to uphold a weapons restriction in Maloney v. 
Cuomo.
  She likewise gave short shrift to the fundamental right to private 
property. In Didden v. Village of Port Chester, Judge Sotomayor 
affirmed dismissal of a property owner's lawsuit after the village 
condemned his property and gave it to a developer. The Supreme Court, 
incorrectly in my view, had previously held in Kelo v. City of New 
London that economic development can constitute the public use for 
which the Fifth Amendment allows the taking of private property. In 
Didden, however, the village had only announced a general plan for 
economic development. No taking of anyone's property had occurred. Mr. 
Didden sued only after the village actually took his property.

  In yet another cursory opinion that for some reason took more than a 
year to produce, Judge Sotomayor denied Mr. Didden even a chance to 
argue his case. She said that the 3-year period for filing suit began 
not when the village actually took his property, but when the village 
earlier had merely announced its general development plan. In other 
words, Mr. Didden should have sued over the taking of his property 
before his property had been taken. But had he done so then, he would 
certainly have been denied his day in court because his legal rights 
had not yet been violated. This catch-22 amounts to a case of dismissed 
if he did, and dismissed if he did not. Once again, Judge Sotomayor 
gave inadequate protection to a fundamental constitutional right.
  In another effort to blunt the impact of such controversial 
decisions, Judge Sotomayor's supporters attempt to portray her as 
moderate by observing that on the Second Circuit, she agreed with 
Republican-appointed colleagues 95 percent of the time. On the one 
hand, this is one of several misguided attempts to defend her by 
suggesting that a calculator is all it takes properly to evaluate a 
judicial record. On

[[Page S8748]]

the other hand, however, this claim comes from the same Democratic 
Senators who voted against Justice Samuel Alito just a few years ago. 
On the Third Circuit, he had agreed with his Democratic-appointed 
colleagues 99 percent of the time over a much longer tenure. It shows 
how specious some of the arguments are.
  Let me return to where I began. I believe that Judge Sotomayor is a 
good person. I respect her achievements and applaud her service to her 
community, the judiciary, and the country. While appointment of the 
first Puerto Rican Justice says a lot about America, however, I believe 
that appointing a Justice with her judicial philosophy says the wrong 
thing about the power and role of judges in our system of government.
  A nominee's approach to judging is more important than her resume, 
especially on the Supreme Court where Justices operate with the fewest 
constraints. Judge Sotomayor has expressed particular admiration for 
Justice Benjamin Cardozo. His book on the judicial process contains a 
chapter titled ``The Judge as a Legislator'' in which he compares 
judges to legislators who decide difficult cases on the basis of 
personal reflections and life considerations. That sounds very much 
like President Obama's appointment standard and Judge Sotomayor's 
expressed judicial philosophy. I believe it is inconsistent with the 
limited role that America's founders prescribed for judges in our 
system of government.
  My colleagues know that I take a generous approach to the 
confirmation process and I believe some deference to the President of 
the United States and his choice is appropriate. I have rarely voted 
against any judicial nominee and took very seriously the question of 
whether to do so now. To that end, I studied her speeches, articles, 
and cases. I spoke with experts and advocates from different 
perspectives. I participated in all three question rounds during the 
Judiciary Committee hearing.
  But in the end, neither general deference to the President nor a 
specific desire to support a Hispanic nominee could overcome the 
serious conflicts between Judge Sotomayor's record and the principles 
about the judiciary and liberty in which I deeply believe.
  I was the one who started the Republican Senatorial Hispanic Task 
Force and ran it for many years, bringing Democrats, Independents, and 
Republicans together in the best interest of the Hispanic community to 
try to give them more of a voice. I feel pretty deeply about Hispanic 
people, as I do all people.
  I just want everybody to know that this took a lot of consideration 
on my part to come to the conclusion I have. I wish President Obama had 
taken a different course, but this is the decision I have to make in 
this case. As I say, I like Judge Sotomayor. I particularly like her 
life story and her wonderful family. I did not want to vote against her 
but I think I have explained here some of the serious concerns I have.

                               Exhibit 1

        The Constitution as the Playbook for Judicial Selection

                            Orrin G. Hatch*

       The Federalist Society plays an indispensable role in 
     educating our fellow citizens about the principles of 
     liberty, a task that is both critical and challenging. It is 
     critical because, as James Madison put it, ``a well-
     instructed people alone can be permanently a free people.'' 
     \1\ The ordered liberty we enjoy is neither self-generating 
     nor self-sustaining, but is based on certain principles that 
     require certain conditions. Knowledge and defense of those 
     principles and conditions will be the difference between 
     keeping and losing our liberty.
       This educational challenge, however, has perhaps never been 
     more daunting. We live in a culture in which words mean 
     anything to anyone, celebrities substitute for statesmen, and 
     people are no longer well instructed. Forty-two percent of 
     Americans do not know the number of branches in the federal 
     government, and more than sixty percent cannot name all three 
     \2\ Four times as many Americans say that a detailed 
     knowledge of the Constitution is absolutely necessary as say 
     they actually have such knowledge.\3\ Twenty-one percent of 
     Americans believe the First Amendment protects the right to 
     own a pet.\4\
       A few factors contribute to this state of affairs. Most 
     people get their information about the legal system only from 
     television. Unless people sue each other or commit crimes--
     habits we really should not encourage--they will likely have 
     no firsthand knowledge or experience to draw from. 
     Furthermore, people hold lawyers in low esteem. If you plug 
     the term ``lawyer joke'' into Yahoo, it returns a whopping 
     25.7 million hits, a number on the rise almost as fast as the 
     national debt. The problem with lawyer jokes is that most 
     lawyers do not think they are funny and most other people do 
     not think they are jokes. This low view of lawyers means 
     people have little motivation to learn more about what 
     lawyers and judges really do.
       The media do not help this state of affairs. The Harvard 
     Journal of Law & Public Policy recently published an 
     excellent article by Michigan Supreme Court Justice Stephen 
     Markman,\5\ who served as my chief counsel when I chaired the 
     Senate Judiciary Subcommittee on the Constitution in the 
     early 1980s. He describes how the media's penchant for 
     focusing on winners and losers significantly shapes and 
     distorts how people understand what judges actually do, often 
     for the worse.\6\
       Nonetheless, the timing of this Essay is auspicious in 
     several respects. First, I write in the wake of two very 
     relevant Federalist Society student symposia, last year's 
     about the people and the courts \7\ and this year's about the 
     separation of powers.\8\ Second, President Obama has been 
     particularly clear from the time he was a candidate about his 
     intention to appoint judges who will exercise a strikingly 
     political version of judicial power.\9\ Third, he has already 
     started acting on that intention by making his first judicial 
     nominations.\10\ New Presidents typically make their first 
     judicial nominations in July or even August, yet the Senate 
     Judiciary Committee has already held a hearing on the 
     President's first nominee to the U.S. Court of Appeals, and 
     the President sent two more nominees to the Senate just a few 
     days ago.
       Mark Twain popularized the notion that there are three 
     kinds of lies: lies, damned lies, and statistics.\11\ I 
     prefer Senator Daniel Patrick Moynihan's comment that you may 
     be entitled to your own opinion, but not your own set of 
     facts.\12\ Either way, I will statistically describe two 
     macro and two micro factors of the judicial confirmation 
     process to show its recent transformation before turning to 
     how it should be conducted going forward.
       The two macro factors are hearings and confirmations. The 
     Judiciary Committee held hearings for fewer judicial nominees 
     during the 110th Congress than any Congress since before I 
     entered the Senate. This lack of hearings is not the result 
     of the Judiciary Committee's inability to multitask. Instead, 
     it is the result of a political choice, one that has been 
     reversed since the last election. The Judiciary Committee has 
     already held a hearing on President Obama's first appeals 
     court nominee, just two weeks after that nominee arrived in 
     the Senate.\13\ Under a Republican President, Judiciary 
     Committee Chairman Patrick Leahy waited an average of 197 
     days to give an appeals court nominee a hearing.\14\ The last 
     election amounted to the political equivalent of Drano, as 
     the confirmation pipes are now wonderfully unobstructed and 
     flowing freely once again.
       Some might assume that Republicans demonstrate such strong 
     partisan preference, but they would be wrong. Since I was 
     first elected, Democrats running the Senate have granted 
     hearings to forty-one percent more Democratic than Republican 
     judicial nominees. When Republicans run the Senate, the 
     partisan differential is less than five percent.
       Moving from the Judiciary Committee to the Senate floor, 
     the second macro factor is confirmations. In the last eight 
     years, President Bush had the slowest pace of judicial 
     confirmations of any President since Gerald Ford. Last year, 
     the Senate confirmed fewer judicial nominees than in any 
     President's final year since 1968, the end of the Johnson 
     Administration. By comparison, when I chaired the Judiciary 
     Committee during President Clinton's last year in office, the 
     Senate confirmed twice as many appeals court nominees as it 
     did last year.
       As with hearings, the picture is not the same when 
     Republicans are in charge. When Democrats run the Senate, 
     they confirm forty-five percent more Democratic than 
     Republican judicial nominees. When Republicans run the 
     Senate, the differential is only nine percent.
       At the ground level, the two micro factors in the 
     confirmation process are votes and filibusters. The Senate 
     has traditionally confirmed most unopposed lower court 
     nominees by unanimous consent rather than by time-consuming 
     roll call votes. From 1950 to 2000 the Senate confirmed only 
     3.2 percent of all district and appeals court nominees by 
     roll call vote. During the Bush presidency, that figure 
     jumped to nearly sixty percent. The percentage of roll calls 
     without a single negative vote nearly tripled. And under 
     President Bush, for the first time in American history, the 
     filibuster was used to defeat majority-supported judicial 
     nominees.\15\ With all due respect to Mark Twain, I think 
     these numbers accurately give you at least a taste for the 
     partisan division and conflict that now characterize the 
     judicial confirmation process. It has become, to edit Thomas 
     Hobbes just a bit, quite nasty and brutish.
       Turning from what has been to what should be, I believe we 
     can get on a better path by, as Madison emphasized in The 
     Federalist No. 39, ``recurring to principles.'' \16\ The 
     judicial selection process has changed because ideas about 
     judicial power have changed. My basic thesis is this: Our 
     written Constitution and its separation of powers define both 
     judicial power and judicial selection. They define the 
     judicial philosophy

[[Page S8749]]

     that is a necessary qualification for judicial service, and 
     they counsel that the Senate defer to the President when he 
     nominates qualified individuals.
       Consider a judicial nomination as a hiring process based on 
     a job description. The job description of a judge is to 
     interpret and apply law to decide cases. This job description 
     does not mean whatever a President, political party, or 
     Senate majority wants it to mean. Our written Constitution 
     and its separation of powers set the judicial job 
     description. Interpreting written law must be different than 
     making written law. Because law written in statutes or the 
     Constitution is not simply words, but really the meaning of 
     the words, only those with authority to make law may 
     determine what the words of our laws say and what those words 
     mean. Judges do not have authority to make law, so they do 
     not have authority to choose what the words of our laws say 
     or what they mean. In other words, judges apply the law to 
     decide cases, but they may not make the law they apply. 
     Judges and the law they use to decide cases are two different 
     things. Judging, therefore, is about a process that 
     legitimates results, a process by which the law made by the 
     people and those they elect determines winners and losers.
       The Constitution and its separation of powers compel this 
     judicial job description. This kind of judge is consistent 
     with limited government and the ordered liberty it makes 
     possible. Justice Markman's article describes what he calls a 
     ``traditional jurisprudence--one that views the 
     responsibility of the courts to say what the law `is' rather 
     than what it `ought' to be.'' \17\ Such a philosophy of 
     judicial restraint--an understanding of the limited power and 
     role of judges--is a qualification for judicial service. This 
     is the kind of judge a President should nominate.
       Our written Constitution and its separation of powers also 
     define how the confirmation stage of the judicial selection 
     process should operate. The Constitution gives the power to 
     nominate and appoint judges to the President, not to the 
     Senate. The best way to understand the Senate's role is that 
     the Senate advises the President whether to appoint his 
     nominees by giving or withholding its consent. I explored 
     this role in more detail in the Utah Law Review a few years 
     ago in the context of showing that the use of the filibuster 
     to defeat majority-supported judicial nominees is 
     inconsistent with the separation of powers.\18\ One basis on 
     which the Senate may legitimately withhold its consent to a 
     judicial nominee, however, is that the nominee is not 
     qualified for judicial service. Qualifications include more 
     than information on a nominee's resume. And with all due 
     respect to the American Bar Association, their rating does 
     not a qualification determine. Instead, qualifications for 
     judicial service include whether a nominee's judicial 
     philosophy--his understanding of a judge's power and role--is 
     in sync with our written Constitution and its separation of 
     powers.
       Judges, after all, take an oath to support and defend the 
     Constitution of the United States. To be qualified for 
     judicial service, a nominee must believe there is such a 
     thing, that the supreme law of the land is not simply in the 
     eye of the judicial beholder, and that judges need something 
     more than a legal education, a personal opinion, and an 
     imagination to interpret it.
       I propose looking to the basic principles of our written 
     Constitution and its separation of powers to guide the 
     judicial selection process. For the President, those 
     principles require nominees with a restrained judicial 
     philosophy. For the Senate, they require deference to a 
     President's qualified nominees. Senators, of course, must 
     decide how to balance qualifications and deference. Our 
     written Constitution and its separation of powers, however, 
     provide normative guidance for the judicial selection 
     process. Presidents and Senators will have to decide, and be 
     accountable for, how they use or reject that guidance.
       No matter how philosophically sound this proposal may be--
     and I believe it is philosophically rock solid--it may 
     nevertheless be politically controversial. We have traveled a 
     long way from Alexander Hamilton describing the judiciary as 
     the weakest and least dangerous branch.\19\ We have traveled 
     a long way from the Supreme Court saying in 1795 that the 
     Constitution is ``certain and fixed; it contains the 
     permanent will of the people, and is the supreme law of the 
     land; it is paramount to the power of the Legislature, and 
     can be revoked or altered only by the authority that made 
     it.'' \20\ We have traveled a long way from the Senate 
     Judiciary Committee saying in 1872 that giving the 
     Constitution a meaning different from what the people 
     provided when adopting it would be unconstitutional.\21\
       For a long time now, we have instead labored under Chief 
     Justice Charles Evans Hughes's notion that the Constitution 
     is whatever judges say it is.\22\ It has become fashionable 
     to suppose that the only law judges may not make is law we do 
     not like. Legal commentator Stuart Taylor correctly observes 
     that ``[l]ike a great, ever-spreading blob, judicial power 
     has insinuated itself into every nook and cranny.'' \23\ One 
     of my predecessors as Senator from Utah who later served on 
     the Supreme Court, George Sutherland, described the 
     transformation in 1937 as it was literally under way. He 
     warned that abandoning the separation of powers by ignoring 
     the distinction between interpreting and amending the 
     Constitution would convert ``what was intended as inescapable 
     and enduring mandates into mere moral reflections.'' \24\ 
     Less than two decades later, Justice Robert Jackson described 
     what he saw as a widely held belief that the Supreme Court 
     decides cases based on personal impressions rather than 
     impersonal rules of law.\25\
       Judicial power and judicial selection are inextricably 
     linked. Sometimes the Senate can appear to produce a lot of 
     activity but take very little action. To some, that means the 
     Senate is the world's greatest deliberative body. To others, 
     it means that it produces a lot of sound and fury signifying 
     nothing. But I hope that the debate over President Obama's 
     judicial nominees will really be a debate over the kind of 
     judge our liberty requires. The debate should be about 
     whether judges should decide cases by using enduring mandates 
     and impersonal rules of law or by using their own moral 
     reflections and personal impressions.
       President Obama has already taken sides in this debate. 
     When he was a Senator, he voted against the nomination of 
     John Roberts to be Chief Justice, stating that judges decide 
     cases based on their deepest values, their core concerns, and 
     the content of their hearts.\26\ On the campaign trail, he 
     pledged that he would select judges according to their 
     empathy for certain groups such as the poor, African 
     Americans, gays, the disabled, or the elderly.\27\ The real 
     debate is about whether judges may decide cases based on 
     empathy at all, not the groups for which they have empathy. 
     It is about whether judges may make law at all, not about 
     what law judges should make. Conservatives as well as 
     liberals often evaluate judges and judicial decisions by 
     their political results rather than by their judicial 
     process. But a principle is just politics unless it applies 
     across the board. Professor Steven Calabresi, one of the 
     Federalist Society's founders, wrote last fall that 
     ``[n]othing less than the very idea of liberty and the rule 
     of law are at stake in this election.'' \28\ He was right, 
     and they remain at stake in the ongoing selection of federal 
     judges.
       Judges have no authority to change the law, regardless of 
     whether they change it in a way I like. I am distinguishing 
     here between judicial philosophy, which relates to process, 
     and political ideology, which relates to results. Senators 
     often reveal their view of judicial power when participating 
     in judicial selection, proving once again that the two are 
     inextricably linked. During the debate over Chief Justice 
     Roberts's nomination, for example, one of my Democratic 
     colleagues wanted to know whether the nominee would stand 
     with families or with special interests. She said the 
     American people were entitled to know how he would decide 
     legal questions even before he had considered them.\29\ 
     Another Democratic Senator similarly said that the real 
     question was whose side the nominee would be on when he 
     decided important issues.\30\ Would he be on the side of 
     corporate or consumer interests, the side of polluters or 
     Congress when it seeks to regulate them, or the side of labor 
     or management?
       In this activist view of judicial power, the desired ends 
     defined by a judge's empathy justify whatever means he uses 
     to decide cases. This activist view of judicial power is at 
     odds with our written Constitution and its separation of 
     powers and, therefore, with ordered liberty itself. The 
     people are not free if they do not govern themselves. The 
     people do not govern themselves if their Constitution does 
     not limit government. The Constitution cannot limit 
     government if judges define the Constitution.
       Terry Eastland aptly described the result of judicial 
     activism in a 2006 essay titled The Good Judge: ``The 
     people's text, whether made by majorities or, in the case of 
     the Constitution, supermajorities, would be displaced by the 
     judges' text. The justices became lawmakers.'' \31\ This 
     quotation highlights one of the many differences between God 
     and federal judges. God, at least, does not think He is a 
     federal judge. And it brings up the question of how many 
     federal judges it takes to screw in a light bulb. Only one, 
     because the judge simply holds the bulb as the entire world 
     revolves around him.
       There is perhaps some reason for optimism. One poll found 
     last year that, no matter for whom they voted, nearly three-
     quarters of Americans said they wanted judges ``who will 
     interpret and apply the law as it is written and not take 
     into account their own viewpoints and experiences.'' \32\ 
     This debate is indeed the one we should be having, whether 
     judges have the power to make law. When judges apply law they 
     have properly interpreted rather than improperly made, their 
     rulings may have the effect of helping or hurting a 
     particular cause, of advancing or inhibiting a particular 
     agenda. They may, at least by the political science bean 
     counters, be considered liberal or conservative. The point, 
     therefore, is not which side wins in a particular case, but 
     whether the winner is decided by the law or by the judge. 
     When judges interpret law, the law produces the results. 
     Thus, the people can choose to change the law. When judges 
     make law, judges produce the results and the people are left 
     with no recourse at all. That state of affairs is the 
     antithesis of self-government.
       Let me close by saying that the effort to defend liberty 
     never ends. Andrew Jackson reminded us as he left office in 
     1837 that ``eternal vigilance by the people is the price of 
     liberty; and that you must pay the price if you wish to 
     secure the blessing.'' \33\ The approach I outline 
     actually joins an effort that began long ago and reminds 
     me of a resolution passed by the Senate Republican 
     Conference in 1997:

[[Page S8750]]

       Be it resolved, that the Republican Conference opposes 
     judicial activism, whereby life-tenured, unaccountable judges 
     exceed their constitutional role of interpreting already 
     enacted, written law, and instead legislate from the bench by 
     imposing their personal preference or views of what is right 
     or just. Such activism threatens the basic democratic values 
     on which our Constitution is founded.\34\
       There you have it. Our written Constitution and its 
     separation of powers define both judicial power and judicial 
     selection. They require judicial restraint as a qualification 
     for judicial service and require Senate deference to a 
     President's qualified nominees. The weeks and months ahead 
     will provide opportunities to debate these principles and 
     their application. Nothing less than ordered liberty is at 
     stake. I know the Federalist Society will be right in the 
     thick of that debate.


                                endnotes

       * United States Senator (R-Utah); J.D., University of 
     Pittsburgh School of Law, 1962; B.A., Brigham Young 
     University, 1959. This Essay was delivered as a speech to the 
     Harvard Law School Federalist Society and Harvard Journal of 
     Law & Public Policy at the Union Club in Boston, 
     Massachusetts, on April 4, 2009.
       1. James Madison, Second Annual Message, in 8 The Writings 
     of James Madison 123, 127 (Gaillard Hunt ed., 1908).
       2. Press Release, Nat'l Constitution Ctr., Startling Lack 
     of Constitutional Knowledge Revealed in First-Ever National 
     Poll (1997).
       3. Steve Farkas et al., Knowing it by Heart: Americans 
     Consider the Constitution and its Meaning 16 (2002), 
     available at http://www.publicagenda.;org/files/pdf/
     knowing_by_heart.pdf.
       4. Christopher Lee, Noted with Interest, Wash. Post, Mar. 
     3, 2006, at A15; see also McCormick Tribune Freedom Museum, 
     Americans' Awareness of First Amendment Freedoms, Forum for 
     Education and Democracy, Mar. 1, 2006, http://
www.forumforeducation.org/node/147.
       5. Stephen J. Markman, An Interpretivist Judge and the 
     Media, 32 Harv. J.L. & Pub. Pol'Y 149 (2009).
       6. Id. at 151-52.
       7. Symposium, The People & The Courts, 32 Harv. J.L. & Pub. 
     Pol'y 1 (2009).
       8. Symposium, Separation of Powers in American 
     Constitutionalism, 33 Harv. J.L. & Pub. Pol'y (forthcoming 
     2010).
       9. See infra notes 26-27.
       10. President Obama has nominated David Hamilton to the 
     U.S. Court of Appeals for the Seventh Circuit, Gerard Lynch 
     to the Second Circuit, and Andre Davis to the Fourth Circuit. 
     Michael A. Fletcher, Obama Names Judge to Appeals Court, 
     Wash. Post, Mar. 18, 2009, at A4; Jerry Markon, Obama Taps 2 
     for Key Appellate Courts, Wash. Post, Apr. 3, 2009, at A6. 
     Each is currently a U.S. District Judge.
       11. Mark Twain, Chapters from My Autobiography-XX, 186 N. 
     Am. Rev. 465, 471 (1907) (quoting Benjamin Disraeli).
       12. Timothy J. Penny, Facts Are Facts, Nat'l Rev. Online, 
     Sept. 4, 2003, http://www.nationalreview.com/nrof_comment/
comment-penny090403.asp.
       13. President Obama nominated David Hamilton to the Seventh 
     Circuit on March 17, 2009. Fletcher, supra note 10. His 
     hearing was on April 1, 2009. U.S. Senate Judiciary Comm., 
     Official Hearing Notice (Apr. 1, 2009), http://
judiciary.senate.gov/hearings/hearing.cfm?id=3757.
       14. This statistic, like those that follow, was compiled by 
     Senator Hatch's staff from sources including the 
     Congressional Record; Federal Judicial Center, Biographical 
     Directory of Federal Judges, http://www.fjc.gov/public/
home.nsf/hisj; The Library of Congress, Legislative 
     Information Service Databases, http://thomas.loc.gov/; and 
     the records of the Senate Judiciary Committee and Senator 
     Hatch's staff. The statistics are on file with Senator 
     Hatch's staff.
       15. See Orrin G. Hatch, Judicial Nomination Filibuster 
     Cause and Cure, 2005 Utah L. Rev. 803, 819--23.
       16. The Federalist No. 39, at 240 (James Madison) (Clinton 
     Rossiter ed., 1961).
       17. Markman, supra note 5, at 149.
       18. See Hatch, supra note 15, at 82631.
       19. The Federalist No. 78 (Alexander Hamilton).
       20. Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 308 (1795).
       21. See Raoul Berger, Original Intention in Historical 
     Perspective, 54 Geo. Wash. L. Rev. 296, 297--98 (1986) 
     (citing S. Rep. No. 21, 42d Cong., 2d Sess. 2 (1872)).
       22. Charles Evans Hughes, Speech before the Elmira Chamber 
     of Commerce, May 3, 1907, in Addresses and Papers of Charles 
     Evans Hughes 133, 139 (Robert H. Fuller & Gardner Richardson 
     eds., 1908).
       23. Stuart Taylor Jr., Imperial Judges Could Pick the 
     President--Again, 36 Nat'l J. 2877, 2877 (2004).
       24. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 
     (1937) (Sutherland, J., dissenting).
       25. Brown v. Allen, 344 U.S. 443, 535 (1953) (Jackson, J., 
     concurring in the result).
       26. 151 Cong. Rec. S10366 (daily ed. Sept. 22, 2005) 
     (statement of Sen. Obama).
       27. Posting of Mark Murray to First Read, http://
firstread.msnbc.msn.com/archive/2007/07/17/274143.aspx (July 
     17, 2007, 16:21 EDT) (report by Carrie Dann).
       28. Steven G. Calabresi, Obama's ``Redistribution'' 
     Constitution, Wall St. J., Oct. 28, 2008, at A17.
       29. 109 Cong. Rec. S10641 (daily ed. Sept. 29, 2005) 
     (statement of Sen. Stabenow).
       30. Interview by Matt Lauer with Senator Edward Kennedy, 
     available at http://www.tedkennedy.com/journal/165/senator-
kennedy-nbctoday-show-interview.
       31. Terry Eastland, The ''Good Judge'': Antonin Scalia's 
     two decades on the Supreme Court, Wkly. Standard, Nov. 13, 
     2006.
       32. Press Release, The Federalist Society, Key Findings 
     from a National Survey of 800 Actual Voters (Nov. 5, 2008), 
     available at http://www.fed-soc.org/publications/pubid.1183/
pub_detail.asp.
       33. Andrew Jackson, Farewell Address, in 2 The Statesman's 
     Manual: The Addresses and Messages of the Presidents of the 
     United States 947, 957 (Edwin Williams ed., New York, Edward 
     Walker 1846).
       34. On file with Author.

                               Exhibit 2

               [From the National Journal, Aug. 4, 2009]

                         (By Stuart Taylor Jr.)

            Did Precedent Make Sotomayor Rule Against Ricci?

       Judge Sonia Sotomayor has not defended her most widely 
     criticized decision--the one rejecting a discrimination 
     lawsuit by 17 white firefighters, and one Hispanic, against 
     the city of New Haven, Conn.--as a just or fair result.
       That would have been an uphill battle: Polls in June showed 
     that huge majorities of the public wanted the Supreme Court 
     to reverse Sotomayor's decision.
       And as I've explained elsewhere, although the Supreme Court 
     split 5-4 in ruling for the firefighters in Ricci v. 
     DeStefano, all nine justices rejected the specific legal rule 
     applied by Sotomayor's three judge panel. That rule would 
     allow employers to deny promotions after the fact to those 
     who did best on any measure of qualifications--no matter how 
     job-related and racially neutral--on which blacks or 
     Hispanics did badly.
       Instead of defending her panel's quota-friendly rule and 
     its harsh impact on the high-scoring firefighters, Sotomayor 
     and her supporters have argued that she essentially had no 
     choice. The rule that her panel applied had been dictated, 
     they say, by three precedents of her own court, the U.S. 
     Court of Appeals for the 2nd Circuit.
       Some critics have expressed skepticism about this claim, 
     but the media have shed little light on its plausibility. I 
     seek to shed some below.
       Because some of this gets technical, I'll begin with 
     critics' simplest rebuttal to Sotomayor's precedent-made-me-
     do-it claim:
       Even assuming for the sake of argument that the Sotomayor 
     panel's decision was dictated by the three 2nd Circuit 
     precedents, it is undisputed that the full 2nd Circuit could 
     have modified or overruled them if Sotomayor had voted to 
     rehear the case en banc, meaning with all active 2nd Circuit 
     judges participating. Instead, Sotomayor cast a deciding vote 
     in the 7-6 decision not to rehear the case, suggesting she 
     was satisfied with the ruling.
       There is also ample reason to doubt that any of the three 
     2nd Circuit precedents actually required the Sotomayor panel 
     to rule as it did, as some politicized professors have 
     pretended.
       Sotomayor fleshed out her vague testimony about the issue 
     in answers to senators' written questions. She quoted her 2nd 
     Circuit colleague Barrington Parker's concurrence, which she 
     and three other judges had joined, in the 7-6 vote not to 
     rehear Ricci. Judge Parker wrote:
       There was controlling authority in our decisions--among 
     them, Hayden v. County of Nassau [in 1999] and Bushey v. N.Y. 
     State Civil Serv. Comm'n [in 1984]. These cases clearly 
     establish for the circuit that a public employer, faced with 
     a prima facie case of disparate-impact liability under Title 
     VII, does not violate Title VII or the Equal Protection 
     Clause by taking facially neutral, albeit race-conscious, 
     actions to avoid such liability.
       To unpack the legal language: Title VII is the employment 
     discrimination portion of the 1964 Civil Rights Act. Title 
     VII disparate-impact lawsuits are typically brought by blacks 
     or Hispanics who challenge as discriminatory employers' use 
     of objective tests on which those minorities do poorly. New 
     Haven's ostensible reason for denying promotions to the white 
     and Hispanic firefighters who had done well on qualifying 
     exams was fear of being hit with a disparate impact lawsuit 
     by blacks who had done poorly. And any black plaintiffs would 
     indeed have had a prima facie disparate-impact case, which is 
     legalese for proof that blacks had done much worse on the 
     tests than whites.
       But Judge Parker gave short shrift to the fact that even 
     when plaintiffs have a prima facie case, an employer such as 
     the city ``could be held liable for disparate-impact 
     discrimination only if the examinations were not job related 
     and consistent with business necessity, or if there existed 
     an equally valid, less-discriminatory alternative,'' as the 
     Supreme Court stressed in Ricci.
       In addition, Parker's reading of both Hayden and Bushey is 
     conspicuously overbroad. Their facts (especially Hayden's) 
     were quite different from those of Ricci. And Bushey has been 
     undermined by subsequent Supreme Court precedents and 
     legislation.
       That's why Judge Jose Cabranes, in the main dissent from 
     the 2nd Circuit's 7-6 denial of rehearing en banc, began:
       ``This appeal raises important questions of first 
     impression''--meaning questions not controlled by precedent--
     ``in our circuit and, indeed, in the nation, regarding the 
     application of the Fourteenth Amendment's Equal

[[Page S8751]]

     Protection Clause and Title VII's prohibition on 
     discriminatory employment practices.''
       The question at the core of the case, Cabranes said, was: 
     ``May a municipal employer disregard the results of a 
     qualifying examination, which was carefully constructed to 
     ensure race neutrality, on the ground that the results of the 
     examination yielded too many qualified applicants of one race 
     and not enough of another?''
       This and other questions raised by the case, Cabranes 
     continued, were ``indisputably complex and far from well-
     settled'' and ``not addressed by any precedent of the Supreme 
     Court or our Circuit,'' including Hayden and Bushey.
       Ricci differed from Hayden in three critical respects. 
     First, as Cabranes explained, Hayden had approved Nassau 
     County's ``race-conscious design of an employment 
     examination,'' which was achieved mainly by eliminating tests 
     of cognitive skills. Ricci, on the other hand, involved 
     ``race-based treatment of examination results'' (emphasis 
     added) to override local civil service laws under which 
     promotions are virtually automatic for the firefighters with 
     the best scores on job-related oral and written tests.
       Second, Hayden stressed that the white plaintiffs ``cannot 
     establish that they were injured or disadvantaged'' by the 
     Nassau County test's race-conscious design. The Ricci 
     plaintiffs were very clearly injured: They were denied 
     promotions that they had done everything possible to earn 
     under New Haven's civil service laws, and thus were 
     ``deprived of the pursuit of happiness on account of race,'' 
     in the words of Washington Post columnist Richard Cohen.
       Third, Hayden upheld the Nassau County exam's black-
     friendly design in part ``to rectify prior discrimination'' 
     by the county against blacks seeking police jobs. Ricci 
     involved no claim of prior discrimination by New Haven 
     against blacks.
       Bushey was a lawsuit by whites challenging New York State's 
     race-norming of scores--by substantially raising each 
     minority applicant's score--on a qualifying exam to become a 
     correction captain. The 2nd Circuit's mixed ruling in the 
     case was entitled to little or no weight as a precedent in 
     Ricci for at least four reasons:
       While Bushey held that the state could use unspecified 
     ``race-conscious remedies'' to avert a lawsuit by minorities 
     who had done badly on a test, the 2nd Circuit ordered further 
     proceedings to determine whether the race-norming remedy 
     chosen by the state went too far, and violated Title VII by 
     ``trammel[ing] the interests of nonminority candidates.'' In 
     Ricci, the Sotomayor panel gave no weight at all to the 
     interests of non-minority candidates.
       In a key provision of the 1991 Civil Rights Act, Congress 
     banned the sort of race-norming that the state had used in 
     Bushey. This provision stated broadly that employers may not 
     ``adjust the scores of, use different cutoff scores for, or 
     otherwise alter the results of employment-related tests on 
     the basis of race.'' Indeed, by throwing out (``altering''?) 
     the results of its test, New Haven arguably violated the 1991 
     provision, as well as others, in Ricci itself.
       Bushey noted that the white plaintiffs' initial claims that 
     their constitutional rights had been violated ``are not 
     before us,'' because on appeal they had relied solely on 
     their Title VII claims. In Ricci, ``significant 
     constitutional claims . . . of first impression [were] at the 
     core of this case,'' as Cabranes wrote. The Sotomayor panel 
     completely ignored them.
       The high-scoring firefighters' constitutional claims in 
     Ricci were especially strong because landmark Supreme Court 
     decisions in 1989 and 1995 had washed away the foundations of 
     Bushey and another 2nd Circuit decision cited by Sotomayor 
     defenders, Kirkland v. New York State Department of 
     Correctional Services (1980). The 1989 and 1995 decisions 
     held for the first time that (respectively) state and federal 
     favoritism toward blacks is just as suspect under the 
     Constitution as favoritism toward whites. ``Any preference 
     based on racial or ethnic criteria must necessarily receive a 
     most searching examination'' and be struck down unless 
     ``narrowly tailored'' to serve a ``compelling'' governmental 
     interest, according to the 1995 decision, Adarand 
     Constructors v. Pena.
       The justices' constitutional rulings seem quite contrary to 
     the 2nd Circuit's approach not only in Bushey but also in 
     Ricci, in which--Cabranes suggested--Sotomayor and her allies 
     ``took the city's justifications at face value,'' ignoring 
     strong evidence that its decision to dump the test scores was 
     driven by racial politics, not legal principle. The result, 
     Cabranes said, was that ``municipal employers could reject 
     the results of an employment examination whenever those 
     results failed to yield a desired racial outcome--i.e. failed 
     to satisfy a racial quota.''
       Later, in the Supreme Court's June 29 majority opinion in 
     Ricci, Justice Anthony Kennedy said it was unnecessary to 
     address the firefighters' constitutional claims because their 
     Title VII claims alone were sufficient to win the case. But 
     Kennedy stressed that there were ``few, if any, precedents in 
     the courts of appeals discussing the issue.''
       The bottom line is that 2nd Circuit precedents did not make 
     Sotomayor rule as she did. Supreme Court precedent favored 
     the firefighters. Sotomayor's ruling was her own.

  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. INHOFE. Mr. President, let me confess that I feel totally 
inadequate standing here tonight and talking about the subject of the 
confirmation of Judge Sotomayor. I am not a lawyer. I am amidst these 
brilliant lawyers. I listened to Senator Hatch and Senator Sessions. 
They have the kind of background where they can really get into this 
and look constitutionally and legally and evaluate, and I am not in 
that position.
  I would like to speak on this nomination for the following reasons. I 
want to reaffirm my opposition to her confirmation.
  I was the first Member of the Senate on the day she was nominated who 
announced I would not be supporting her. I recognize, as Senator Hatch 
said, that she will be confirmed. We know that.
  I remember what Senator Schumer, the senior Senator from New York, 
said shortly after she was first nominated. He made the statement that 
Republicans are going to have to vote for her because they don't want 
to vote against a woman, vote against a Hispanic. He was right. But I 
would suggest that after the hearing, that statement is not nearly as 
true as it was before the hearings because of some of the extreme 
positions she has taken.
  I have to say that from a nonlawyer perspective, I look at it perhaps 
differently than my colleagues who are learned scholars in the legal 
profession. A lifetime appointment to the Supreme Court requires not 
only a respect for the rule of law but also for the separation of 
powers and an acknowledgment that the Court is not a place where policy 
is made. The Court is about the application of the law and not where 
judges get to make the world a place they want it to be. I saw that all 
throughout the hearings I watched with a great deal of interest.
  In May of 2005, Judge Sotomayor asserted that the ``court of appeals 
is where policy is made.'' She also wrote in a 1996 law review article 
that ``change--sometimes radical change--can and does occur in a legal 
system that serves a society whose social policy itself changes.''
  The Constitution is absolutely clear: Policy is made in the Halls of 
Congress, right here--that is what we do for a living--not in the 
courtroom. Legislators write the laws. Judges interpret them. We 
understand that. Even those of us who are nonlawyers remembered that 
all the way through school. Sotomayor is correct that societies change, 
but the policies that are made to reflect these changes are done 
through Members of Congress who are elected to represent the will of 
the people.
  Obviously, we are talking about a lifetime appointment. There is no 
accountability after this point. When judges go beyond interpreting the 
laws and the Constitution and legislate from the bench, they overstep 
their jurisdiction and their constitutional duty. Allowing judges who 
are not directly elected by the people and who serve lifelong terms to 
rewrite laws from the bench is dangerous to the vitality of a 
representative democracy. Simply put, judicial activism places too much 
power in the hands of those who are not directly accountable to the 
people. That is what we are talking about, a lifetime appointment.
  Judge Sotomayor has overcome significant adversity to achieve great 
success, and I agree with Senator Hatch in his comments that we admire 
her for her accomplishments under adverse conditions. However, while 
her experiences as a Latina woman have shaped who she is as a person, 
they should not be used, as she affirms, to affect her judicial 
impartiality and significantly influence how she interprets the law and 
the Constitution.
  In 2001, Judge Sotomayor gave a speech at the University of 
California, Berkeley in which she stated:

       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.

  She has on several occasions conveyed the same idea. Between 1994 and 
2003, she delivered speeches using similar language at Seton Hall 
University, the Woman's Bar Association of the State of New York, Yale 
University, the City University of New York School of Law. It is not a 
slip of the tongue once; this is a statement that has been reaffirmed 
and reaffirmed. Quite frankly, that was the reason for

[[Page S8752]]

my opposition back in 1998 when she was nominated to be on the circuit 
court of appeals. The statements she made show a very biased opinion 
that someone who is not a lawyer sees and thinks should disqualify 
someone for the appointment.
  She further stated in 1994, in a presentation in Puerto Rico, that:

       Justice O'Connor has often been cited as saying that ``a 
     wise old man and a wise old woman reach the same conclusion'' 
     in deciding cases . . . [however] I am also not sure that I 
     agree with that statement . . . I would hope that a wise 
     woman with the richness of her experience would, more often 
     than not, reach a better conclusion.

  That is pretty emphatic. There is no other way you can interpret 
that. She thinks that a woman with her experience can make a better 
conclusion than a White male. I consider that racist. Sotomayor not 
only suggests the possibility of judicial impartiality but also that 
gender and ethnicity should influence a judge's decision.
  Furthermore, President Obama said that in choosing the next Supreme 
Court nominee, he would use an empathy standard. While judges may and 
should be empathetic people, they must be impartial judges first. If 
empathy was a guiding standard, with whom should a judge empathize? 
Should more empathy be shown to one race, one gender, one religion, one 
lifestyle? True justice does not see race, gender, or creed. We are all 
equal in the eyes of the law, and the law must be applied equally. That 
is why she wears a blindfold. It is supposed to be blind justice.

  Rather than looking to factors beyond the law, judges must solely 
examine the facts of the case and the law itself. Their ability to 
equally apply justice under the law is the standard by which we should 
select judges. So we have two different standards right now with which 
I disagree. One is that judges should make policy and, secondly, that 
gender and ethnicity should influence decisions.
  Another belief on which Judge Sotomayor and I fundamentally disagree 
is that American judges should consider foreign law when deciding 
cases. This probably concerns me more than any of the rest of them--the 
fact that we have this obsession in these Halls, in this Senate, that 
nothing is good unless it somehow comes from the United Nations or is 
coming from some multinational origin.
  In 2007, in the forward to a book--and I read this myself--titled, 
``The International Judge,'' Sotomayor wrote:

       [T]he question of how much we have to learn from foreign 
     law and the international community when interpreting our 
     Constitution is not the only one worth posing.

  This past spring, Judge Sotomayor gave an alarming speech at the ACLU 
which addressed this topic. She said:

       [T]o suggest to anyone that you can outlaw the use of 
     foreign or international law is a sentiment that is based on 
     a fundamental misunderstanding, what you would be asking 
     American judges to do is to close their minds to good ideas. 
     . . .

  No, Judge Sotomayor, it is sovereignty that we are talking about. 
Statements like these make it clear that President Obama has nominated 
a judge to our highest Court who believes our courts should rely on 
foreign decisions when interpreting our Constitution. And I have to 
say, whatever happened to sovereignty? This obsession with 
multinationalism has to come to an end. I believe America will reject 
this type of thought. Americans do not want the rest of the world 
interpreting our laws, and neither do I.
  Finally, Mr. President, Judge Sotomayor's record on the second 
amendment is constitutionally outrageous. Maybe it is because I come 
from Oklahoma, but that is the thing I hear about more than anything 
else down there, and my own kids, I might add.
  I do not believe Judge Sotomayor can be trusted to uphold the 
individual freedom to keep and bear arms if future second amendment 
cases come before her. I have received no assurances from her past 
decisions or public testimony that she will be willing to fairly 
consider the question of whether the second amendment is a fundamental 
right and thus restricts State action as it relates to the second 
amendment. It is incomprehensible to me that our Founding Fathers could 
have intended the right to keep and bear arms as nonbinding upon the 
States and instead leave the right to be hollowed out by State and 
local laws and regulations. History and common sense do not support 
this.
  I have to tell you, this has been more of a concern in my State of 
Oklahoma than anything else. I cannot confirm a nominee who believes 
the second amendment is something other than a fundamental right and 
instead treats it as a second class amendment to the Constitution. I do 
not know what a second class amendment to the Constitution is. This is 
not in line with my beliefs and not in line with the beliefs of the 
majority of Americans--certainly from my State of Oklahoma.
  Today, I am persuaded the confirmation hearings served only to 
highlight many of my concerns. The numerous inconsistencies of her 
testimony with her record have persuaded not only me but the American 
people that Judge Sotomayor is not qualified to serve as a Justice on 
the highest Court, the U.S. Supreme Court. I say that because a recent 
Zogby Poll--and as several other polls have also consistently 
confirmed--following the confirmation hearings revealed that only 49 
percent of Americans support Judge Sotomayor's confirmation, with an 
equal number opposing it. This is significant because she played the 
race card all the way through this thing and was talking about the 
Hispanic effect. But the same poll showed that among Hispanic voters, 
only 47 percent say they are in favor of her confirmation.
  In other words, there are fewer people in the Hispanic community who 
are favoring her confirmation than in the non-Hispanic. These numbers 
are evidence of the fact that Judge Sotomayor has not gained the 
approval of the American people during her confirmation hearings, and 
she certainly has not gained mine.
  I was the first Member of the Senate to publicly announce my 
opposition to Judge Sotomayor after her nomination to the Supreme Court 
on May 26. On that date, I stated I could not confirm her. In addition 
to all the above, there is another reason. While I do not often agree 
with Vice President Biden, I do agree with his statement that once you 
oppose a Federal court nominee, you cannot support that nominee for a 
higher court because the bar is higher. I think that is very 
significant to point out here because there are several who are still 
serving today, as I am, who opposed her to the circuit court in 1998. I 
think Vice President Biden is correct. As the standard goes up, once 
you get to the U.S. Supreme Court, that is the end. So that should be 
the very highest standard. So it is unconceivable that anyone who would 
have opposed her in 1998 could turn around and support her now.
  I have to say there are a lot of reasons I have pointed out. One is 
judges making policy. I object to that; I find that offensive. Gender 
and ethnicity should be a consideration; that is wrong. The 
international thing, that we have to go to the international community 
to see that we are doing the right thing in interpreting our 
Constitution; that is a sovereignty issue. The second amendment, that 
is a concern.
  So even though Judge Sotomayor will be confirmed, it will be without 
my vote. I would have to say for the sake of my 20 kids and grandkids 
that I will oppose Judge Sotomayor's nomination to the U.S. Supreme 
Court.
  Mr. President, 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. SESSIONS. 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. SESSIONS. Mr. President, I believe there are a few minutes left 
on this side of the aisle. I would just like to share a few thoughts. I 
see Senator Brown is here and would also like to speak tonight. I think 
some others may also.
  One of the things that has been discussed tonight from my Democratic 
colleagues is the great American ideal of equal justice under law. 
Those words are indeed chiseled on the face of the Supreme Court across 
the street, and it has been invoked as a reason to support this 
nominee. But I would suggest that at its most fundamental level that is 
one of the serious objections and concerns we have.

[[Page S8753]]

  Lawsuits have parties. If you have empathy for one party, if you have 
a sympathy for one party, if you have a prejudice that favors one 
party, then that is not equal justice. In her own speeches and 
statements, Judge Sotomayor has said: I accept the fact that my 
background, my sympathies, even my prejudices--those are her words--
will affect the facts, affect how I decide cases--that her background 
will ``affect the facts I choose to see.'' These were not just speeches 
given one time but repeated over a period of a decade.
  So it raises real questions about that because the oath that a judge 
takes is a powerful thing. The oath reflects the ideal of American 
justice. And the oath says a judge will not be a respecter of persons. 
The oath says a judge shall do equal justice to the poor and the rich 
alike. The oath says a judge will be impartial; that they will carry 
out their duties under the Constitution and under the laws of the 
United States--not above the laws of the United States. A judge is not 
above the law. They are not empowered to utilize any of their personal 
views, politics, morals, or values in the process of their judging to 
manipulate the law, to carry out an agenda they may believe is the 
greatest thing for all of America. They are not entitled to do that.

  So from her speeches and her approach to the law, there is a great 
concern to the extent of which I have not seen before in speeches and 
expressions, in Law Review articles by this nominee that suggests an 
acceptance of the fact that her background and experiences, opinions, 
sympathies, and prejudices will affect her rulings.
  She goes on to say: I accept the fact that my background will 
``affect the facts I choose to see.'' For a lawyer like myself who has 
practiced a good bit in Federal court, tried quite a few cases, this is 
a stunning development that a judge is going to tell me: Well, I may 
not see those facts because of my background, my sympathies, and my 
prejudices. That is what a judge puts on that robe for. The robe is to 
symbolize they pull themselves apart from the everyday pressures that 
are on them, the everyday biases and prejudices; that they will be a 
neutral, fair, objective umpire and will call the balls and strikes, 
call the game without taking sides, without trying to achieve a given 
result. This is the ideal of American justice.
  One of our colleagues said he objected because some of us were 
advocating a strange and strained conservative orthodoxy, that we would 
not vote for anybody who did not agree with some sort of philosophy 
like that. What I said at the opening of the hearing was that I would 
not vote for her, and no Senator should vote for any nominee, whether 
liberal or conservative, who was not committed--committed--as their 
oath commits them, to setting aside personal values, opinions, and so 
forth, and rendering true justice based on the law and the facts, 
whether they like the law or not.
  So I think this is a big deal. They say: Well, you never confirmed a 
liberal Democrat, Sessions. You are a conservative Republican. But I 
would. And I voted for quite a number of them under President Clinton. 
I expect I will vote for quite a number under President Obama. I voted 
for 95 percent of President Clinton's nominees in the time I was in the 
Senate. It is not their politics. It is not the church they belong to. 
It is not whether they go to church. It is not what their moral values 
are. It is when they get on that bench and they decide cases, are they 
going to follow the law and the facts? That is the question, and that 
is what we are looking for.
  It is sort of surprising to see a nominee express repeatedly over a 
period of years a contrary view. And to suggest that, well, it may be 
an aspiration to be unbiased, but it is just a mere aspiration--and to 
explicitly reject the classical formulation of a judge's role as 
expressed by Justice O'Connor, when she said: A wise old woman and a 
wise old man should reach the same conclusion--well, that is what we 
always have believed in America. Now we have this new theory that, 
well, you can bring to bear your background, and you might reach a 
better conclusion because you have different experiences you can bring 
to bear. That is not our goal in America, in my view.
  Our legal system is built on a belief that there is a right answer to 
even the most difficult cases, and judges ought to give their absolute 
best effort to find that right answer. It is based on law and the facts 
and not what their personal views and values are. That is what we are 
all about. I think it is an important issue. And the activist, whether 
liberal or conservative, the activist judge allows those values and 
prejudices and political views and ideology to affect their rulings. It 
causes them to find some way to achieve a result that furthers an 
agenda they believe in. That is not justice, that is politics.

  When President Obama says he wants a judge who will show empathy, I 
ask: Whom does he show empathy for? If you show empathy for one party, 
haven't you had a bias against the other? Who got empathy in the 
firefighters case? Was that equal justice under law--under law?
  The Constitution says no one shall be deprived of equal protection of 
the laws on account of their race. But the firefighters who passed the 
test--a test that was never found to be defective, and the Supreme 
Court found it was not found to be defective--they had that test thrown 
out because they didn't like the racial results of it. Isn't that 
discriminating against the people who worked hard and studied and 
passed the test?
  Lieutenant Vargas testified before our committee. I asked him, and he 
said if everybody had studied as hard as he had, a lot more of them 
would have passed. It was just a question of the commitment to learn 
the things necessary to be a leader in a fire department where you send 
people into life-and-death situations. This is not a little matter. You 
need to know things.
  So I don't want anybody to think that what we are doing is some 
strange or strained approach to the law. I believe we are asking 
fundamental questions about law and justice in America and the Supreme 
Court of the United States. Aren't we entitled to expect that this 
nominee, such as every other judge who has ever taken the bench in any 
Federal court in America, should be not mildly committed to the oath 
but absolutely committed to the oath; committed to not being a 
respecter of persons; committed to equal justice for the poor and the 
rich; committed to impartiality; committed to conducting their office 
under the Constitution and under the laws of the United States and not 
above it.
  I think that is what we need to be looking for. I am afraid this 
nominee, based on several important cases and a plethora of speeches 
over a decade, doesn't meet the standard. I wish it weren't so. I 
thought things would get better at the hearing. I don't think they did. 
That is my best judgment. So that is why I have concluded I cannot 
support her nomination.
  I thank the Chair and yield the floor.
  Mr. BROWN. Mr. President, I am a father of daughters who were raised 
with the belief that the United States is only as strong as its 
commitment to combating prejudice and promoting equality under the law. 
It is something I learned from my own mother. I am also a husband of a 
woman whose parents' sacrifice allowed her to be the first in her 
family to go to college, opening a world of possibility grounded in the 
basic American values of hard work and opportunity for all. It is with 
them in mind and with appreciation for the confidence Judge Sonia 
Sotomayor inspires that I am proud to support her to be the next 
Associate Justice of the U.S. Supreme Court.
  Judge Sotomayor has cleared hurdle after hurdle to achieve the 
promise of the American dream. She has earned the admiration of her 
peers by demonstrating again and again her respect for the law, her 
respect for the rule of law, and her dedication to its impartial 
interpretation. For more than three decades, as we have heard on the 
floor and we heard in committee, as a district attorney in New York, a 
civil litigator in private practice, a Federal judge in the Second 
Court of Appeals, Judge Sotomayor has shown that she is tough and she 
is fair and she is a thoughtful arbiter of justice. She will be an 
outstanding Associate Justice of the U.S. Supreme Court.
  During her confirmation hearings, Judge Sotomayor responded 
thoughtfully and thoroughly to a wide range of questions. In fact, she 
answered more questions in depth than any nominee in

[[Page S8754]]

recent history. Combined with first-class legal reasoning and 
disciplined intellect, Sonia Sotomayor's life experiences will make her 
a valuable addition to the Court.
  She was raised in public housing in the Bronx. At age 9, she lost her 
father, a factory worker. Raised by her mother, a nurse, she battled 
childhood diabetes while excelling at every level in school. My best 
friend also suffered from childhood diabetes. He lived with diabetes 
for some 40 years. I know how it made him more disciplined, it made him 
more compassionate, and if I could use the word, it made him more 
empathetic toward those around him. It made him an all-around better 
person, it made him a better judge of character, and it made him more 
fair.
  After graduating from our Nation's finest universities, Sonia 
Sotomayor reached the heights of the legal profession. Each of these 
experiences exposed her to the array of the American experience.
  Current and former Supreme Court Justices from across the ideological 
spectrum have described how their personal experiences informed their 
judicial perspective. Judge Sandra Day O'Connor, nominated by President 
Reagan, once said:

       We're all creatures of our upbringing. We bring whatever we 
     are as people to a job like the Supreme Court. We have our 
     life experiences.

  Empathy, perhaps?
  Justice Samuel Alito, a conservative nominated by President Bush, 
said during his confirmation hearings:

       When I get a case about discrimination, I have to think 
     about people in my own family who suffered discrimination 
     because of the ethnic background or because of religion or 
     because of gender. And I do take that into account.

  Empathy, perhaps?
  I don't recall when Judge Alito appeared in front of the Judiciary 
Committee that people questioned his empathy and questioned his ability 
to do his job because of his background. Similarly, Judge Sotomayor's 
background and life experiences will impart a new sense of perspective 
to the Court.
  As I hear this discussion of empathy and I hear this accusation of 
Judge Sotomayor being an activist judge, I think about who has sat on 
the Supreme Court through much of this Nation's history. Most of the 
people who sat on the Supreme Court were people of privilege. Most of 
the people who sat on the Supreme Court were people who were born into 
privilege. We have seen the Supreme Court, the highest Court in the 
land, particularly in recent years, side in case after case with the 
wealthy over the poor. We have seen them side with large corporations 
over workers. We have seen them side with the elite of our society over 
others in our society. Maybe they decided that way because the Justices 
came from privileged backgrounds themselves and that is the way they 
saw the world around them. I don't hear those discussions on the floor. 
I didn't hear those discussions in the Senate Judiciary Committee from 
those who oppose Judge Sotomayor's nomination.
  Similar to Presidents Reagan and Bush and every President before, 
President Obama chose Sonia Sotomayor because he felt her views and her 
interpretations of our Nation's law reflect the way forward for our 
Nation. On issues ranging from criminal justice and labor and 
employment, Judge Sotomayor has an extraordinary record of following, 
defending, and upholding the rule of law as a Federal prosecutor, as a 
trial judge, and as an appellate judge. Nearly every major law 
enforcement organization in this Nation, ranging from the Fraternal 
Order of Police to the National Sheriff's Association to the National 
District Attorneys Association, has endorsed her. The American Bar 
Association awarded its highest ratings when evaluating Judge 
Sotomayor's judicial temperament and her treatment of all litigants. 
And the Judiciary Committee has received a letter of support for Judge 
Sotomayor's nomination from the American Hunters and Shooters 
Association, an organization that advocates for second amendment 
rights. The association told us some in the firearm community have 
leveled a number of charges against Judge Sotomayor that do not pass 
the truth test. They also wrote:

       Conservatives should applaud Judge Sotomayor as a model of 
     judicial restraint on the Circuit Court, even if that 
     restraint has frustrated gun rights outcomes in the immediate 
     cases.

  Mr. President, I ask unanimous consent to have this letter printed in 
the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follow

                                                  American Hunters


                                       & Shooters Association,

                                                    June 29, 2009.
     Senator Patrick Leahy,
     Chairman, Senate Judiciary Committee,
     U.S. Senate, Washington, DC.
       Dear Chairman Leahy: In 1991, President George H.W. Bush 
     appointed Judge Sotomayor to the U.S. District Court for the 
     Southern District of New York. Senator Al D'Amato (R-NY) led 
     the fight for her initial Senate confirmation, which was 
     approved by unanimous consent. Her later nomination to the 
     U.S. Appeals Court (Second Circuit) was made by President 
     Bill Clinton and also moved along by then Senator Al D'Amato. 
     She received strong bi-partisan support with a vote of 67-29.
       Some in the firearm community have leveled a number of 
     charges against Judge Sotomayor that do not pass the truth 
     test. In the recent case of Maloney v. Cuomo, a unanimous 
     Second Circuit panel, which included Judge Sotomayor 
     acknowledged that the landmark ruling in District of Columbia 
     v. Heller confers an individual right of citizens to keep and 
     bear arms.
       The Maloney court also explained, as the Heller majority 
     had, that earlier Supreme Court precedents had held that the 
     Second Amendment ``is a limitation only upon the power of 
     congress and the national government and not upon that of the 
     state.'' The panel noted that while Heller raises questions 
     about those earlier Supreme Court decisions, the Second 
     Circuit was obligated to follow direct precedent ``leaving to 
     the Supreme Court the prerogative of overruling its own 
     decisions.'' While we are disappointed that the Supreme Court 
     has not yet extended this right to the states, we note that 
     Conservative Judge Frank Easterbrook of the 7th Circuit 
     agreed with Sotomayor's ruling as being consistent with 
     precedent. Judge Sotomayor has established herself as a model 
     jurist in terms of respecting precedent. We suspect that her 
     critics from the leadership of several well-known gun 
     organizations are just as interested in supporting precedent 
     as she is, now that the precedent to be protected is clearly 
     enshrined within the Heller decision.
       As the President of the American Hunters and Shooters 
     Association, I am eager to see the Supreme Court take up the 
     incorporation issue of the Second Amendment to the states. As 
     a gun owner in Maryland, it is my fervent hope that the 
     Supreme Court will extend the protections guaranteed by the 
     Second Amendment, as defined in the Heller decision, to the 
     citizens of the United States of America who reside outside 
     the District of Columbia, as it has with the First and Fourth 
     Amendments.
       Our own views on gun ownership notwithstanding, it is the 
     role of the President, who was elected by a rather impressive 
     majority, to nominate and the Senate's duty to advise and 
     consent. The Senate would be wise to consent to this 
     nomination.
       Conservatives should applaud Judge Sotomayor as a model of 
     judicial restraint on the Circuit Court, even if that 
     restraint has frustrated gun rights outcomes in the immediate 
     cases. As moderate progressives, we hope that the nominee 
     views the settled law in Heller as ripe for an activist 
     expansion by incorporation to the states in harmonizing the 
     different Circuit Court decisions.
       On behalf of the American Hunters and Shooters Association, 
     we extend our strong support for the confirmation of Judge 
     Sotomayor to the U.S. Supreme Court. We fervently hope you 
     and your fellow Judiciary Committee members will see fit to 
     support this nomination.
           Most respectfully submitted,
                                                     Ray Schoenke,
                                                        President.

  Mr. BROWN. Mr. President, Judge Sotomayor is a groundbreaking Supreme 
Court nominee, who unfortunately is facing gratuitous, groundless 
mischaracterizations. She is to be commended for her exemplary conduct 
in the face of critical and vicious personal attacks. Unfortunately, we 
have seen it all too many times. Judge Sotomayor is a woman and she is 
Puerto Rican. She is also a beloved daughter, sister, and aunt. She is 
a highly respected judge, with more relevant experience than any member 
of the current Supreme Court--than any member of the current Supreme 
Court.
  Louis Brandeis, confirmed in 1916 as the Court's first Jewish 
nominee, faced massive distortions and mischaracterizations. Justice 
Thurgood Marshall, confirmed in 1967 as the Court's first African-
American Justice, faced extraordinary personal attacks. Both Justice 
Brandeis and Justice Marshall made lasting legacies on the Court that 
ensured our Nation's progress to meet the very Democratic ideals 
enshrined in our Constitution. I would offer that

[[Page S8755]]

their background perhaps made them even better Justices.
  President Obama was elected in a historic election, where the 
American people turned pages of history to forge a new path for our 
Nation. It is a new path shaped by common sense and compassion and 
belief in the potential of our people and the greatness of our Nation. 
The Supreme Court is a vital part of this path forward.
  Exercising one of his most important powers, President Obama 
nominated someone who will help ensure that our Supreme Court honors 
the Constitution and that every American is protected by it.
  President Obama said:

       What she will bring to this court is not only the knowledge 
     and experience acquired over the course of a brilliant legal 
     career, but the wisdom accumulated from an inspiring life 
     journey.

  I congratulate Judge Sotomayor, her mother Celina, and the rest of 
the Sotomayor family. I also congratulate Justice David Souter on his 
well-earned retirement. Justice Souter's probing intellect and 
brilliant legal mind deserve our Nation's sincere thanks and gratitude.
  Commitment to the rule of law is the foundation of our Nation, where 
democratic values are enshrined in the Constitution that preserves and 
strengthens our basic freedom. As Senators, one of our most important 
Constitutional responsibilities is to confirm a Justice of the Supreme 
Court. I urge my Senate colleagues to join me in confirming Judge Sonia 
Sotomayor as the next Associate Justice of the U.S. Supreme Court.
  Thank you. 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.

                          ____________________