[Congressional Record Volume 155, Number 121 (Wednesday, August 5, 2009)]
[Senate]
[Pages S8788-S8822]
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 ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The assistant 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 ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 2 p.m. will be equally divided in 1-hour alternating blocks of 
time, with the majority controlling the first hour.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, we began debate yesterday on this historic 
nomination of Judge Sonia Sotomayor to the Supreme Court. Senator Reid, 
Senator Feinstein, Senator Menendez, Senator Whitehouse, and Senator 
Brown gave powerful statements--powerful statements--in support of 
Judge Sotomayor's long record, a record that makes her a highly 
qualified nominee and a record that brought about her receiving the 
highest qualification possible from the American Bar Association. I 
thank those Senators for their statements.
  In the course of my opening statement yesterday, I spoke about the 
value of real-world judging. Among the cases I discussed were two 
involving the strip searches of adolescent girls. I spoke about how 
Judge Sotomayor and Justice Ginsburg properly--properly--approached 
those decisions in their respective courts.
  Judge Sotomayor is certainly not the first nominee to discuss how her 
background has shaped her character. Many recent Justices have spoken 
of their life experiences as an influential factor in how they approach 
cases. Justice Alito, at his confirmation hearings, described his 
experience as growing up as a child of Italian immigrants saying:

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

  He was praised by every single Republican in the Senate for that.
  Chief Justice Roberts testified at his confirmation hearing:

       Of course, we all bring our life experiences to the bench.

  Again, every single Republican voted for him.
  Justice O'Connor echoed these statements when she said recently:

       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 . . . So that made me a little more

[[Page S8789]]

     pragmatic than some other justices. I liked to find solutions 
     that would work.

  Justice O'Connor explained recently:

       You do have to have an understanding of how some rule you 
     make will apply to people in the real world. I think that 
     there should be an awareness of the real-world consequences 
     of the principles of the law you apply.

  Just as all Democrats voted for Justice O'Connor, so did all 
Republicans.
  I recall another Supreme Court nominee who spoke during his 
confirmation hearing of his personal struggle to overcome obstacles. He 
made a point of describing his life as:

       One that required me to at some point touch on virtually 
     every aspect, every level of our country, from people who 
     couldn't read or write to people who were extremely literate, 
     from people who had no money to people who were very wealthy.

  And added:

       So what I bring to this Court, I believe, is an 
     understanding and the ability to stand in the shoes of other 
     people across a broad spectrum of this country.

  That is the definition of empathy. That nominee, of course, was 
Clarence Thomas. Indeed, when President George H.W. Bush nominated 
Justice Thomas to the Supreme Court, he touted him as:

       A delightful and warm, intelligent person who has great 
     empathy and a wonderful sense of humor.

  Let me cite one example of a decision by Justice Thomas that I expect 
was informed by his experience. In Virginia v. Black, the Supreme 
Court, in 2003, held that Virginia's statute against cross burning, 
done with an attempt to intimidate, was constitutional. However, at the 
same time, the Court's decision also rejected another provision in that 
statute. Justice Thomas wrote a heartfelt opinion, where he stated he 
would have gone even further.
  He began his opinion:

       In every culture, certain things acquire meaning well 
     beyond what outsiders can comprehend. That goes for both the 
     sacred . . . and the profane. I believe that cross burning is 
     the paradigmatic example of the latter.

  He went on to describe the Ku Klux Klan as a ``terrorist 
organization,'' while discussing the history of cross burning, 
particularly in Virginia, and the brutalization of racial minorities 
and others through terror and lawlessness. Would anyone deny Justice 
Thomas his standing or seek to belittle his perspective on these 
matters? I trust not. Who would call him biased or attack him as Judge 
Sotomayor is now being attacked? I trust no one would. Real-world 
experience, real-world judging, and awareness of the real-world 
consequences of decisions are vital aspects of the law. Here we have a 
nominee who has had more experience as a Federal judge than any nominee 
in decades and will be the only member of the U.S. Supreme Court with 
experience as a trial judge.
  I look forward to this debate. One of the Judiciary Committee's 
newest members is now on the floor, Senator Klobuchar, the senior 
Senator from Minnesota. She has been a leader in support of this 
nomination. I see beside her the former Governor of my neighboring 
State of New Hampshire, then-Governor Shaheen, now Senator Shaheen. 
Both of them are going to speak, so I will take no more time.
  I yield the floor, first, to Senator Klobuchar.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota is 
recognized.
  Ms. KLOBUCHAR. Mr. President, I thank the chairman. I thank him for 
those strong remarks on behalf of Judge Sotomayor, strong remarks for a 
very strong nominee.
  More importantly, as chairman of the Senate Judiciary Committee, I 
thank Senator Leahy, and Senator Sessions, for the way they conducted 
the confirmation hearing, the dignity that was shown to the nominee in 
that hearing. I think that was very important to the process. We may 
not have agreed with the conclusions that some of our colleagues 
reached, but no one can dispute the hearing was conducted civilly and 
with great dignity. This is a nominee who shows great dignity every 
step of the way.
  Today I will be speaking in support of Judge Sotomayor's nomination, 
but first I am going to be joined by several of my esteemed fellow 
women Senators, including Senator Shaheen of New Hampshire, who is here 
already, Senator Stabenow of Michigan, Senator Gillibrand of New York, 
and Senator Murray of Washington State.
  We all know this nomination is history making for several reasons but 
one of them, of course, is that Judge Sotomayor will be only the third 
woman ever to join the Supreme Court of the United States of America.
  We know she is incredibly well qualified. She has more Federal 
judicial experience than any nominee for the past 100 years. That is 
something that is remarkable. But I do think it is worth remembering 
what it was like to be a nominee for this Court as a woman even just a 
few years ago.
  It is worth remembering, for example, that when Justice O'Connor 
graduated from law school, the only offers she got from law firms, 
after graduating from Stanford Law School, was for legal secretary 
positions. Justice O'Connor, who graduated third in her class in law 
school, saw her accomplishments reduced to one question: Can she type?
  Justice Ginsburg faced similar obstacles. When she entered Harvard 
Law School, she was 1 of only 9 women in a class of more than 500. The 
dean of the law school actually demanded she justify why she deserved a 
seat that could have gone to a man. Later, she was passed over for a 
prestigious clerkship, despite her impressive credentials.
  Nonetheless, both of these women persevered and they certainly 
prevailed. Their undeniable merits triumphed over those who sought to 
deny them opportunity. The women who came before Judge Sotomayor--all 
those women judges--helped blaze a trail. Although Judge Sotomayor's 
record stands on her own, she is also standing on those women's 
shoulders.
  I am pleased to recognize several women Senators who are here today 
to speak in support of Judge Sotomayor. The first is my great colleague 
from New Hampshire, Senator Shaheen.
  The ACTING PRESIDENT pro tempore. The Senator from New Hampshire is 
recognized.
  Mrs. SHAHEEN. Mr. President, I am delighted to be here to join the 
senior Senator from Minnesota, Ms. Klobuchar, and to speak also after 
the senior Senator from Vermont, my neighbor, Senator Leahy, in support 
of Sonia Sotomayor.
  This week, we have the opportunity to make history by confirming the 
first Hispanic and only the third woman to the U.S. Supreme Court. 
Senator Klobuchar spoke eloquently about the challenges women have 
faced, and I am pleased to say I had the honor as Governor of 
appointing the first woman to the New Hampshire Supreme Court.
  I come to the floor to speak in support of Sonia Sotomayor's 
nomination; however, not because of the historic nature of that 
nomination but because she is more than qualified to sit on the Supreme 
Court. I am somewhat perplexed by why the vote on her nomination will 
not be unanimous.
  Judge Sotomayor is immensely qualified. The nonpartisan American Bar 
Association Standing Committee on the Federal Judiciary, which has 
evaluated the professional qualifications of nominees to the Federal 
bench since 1948, unanimously--unanimously--rated Judge Sotomayor as 
``well qualified'' to be a Supreme Court Justice after carefully 
considering her integrity, professional competence, and judicial 
temperament.
  Her decisions as a member of the Second Circuit Court of Appeals are 
well within the judicial mainstream of our country. A Congressional 
Research Service analysis on her opinions concluded she eludes easy 
ideological categorization and demonstrates an adherence to judicial 
precedent, an emphasis on facts to a case, and an avoidance of 
overstepping the circuit court's judicial role. Described as a 
political centrist by the nonpartisan American Bar Association Journal, 
she has been nominated to the Federal courts by Presidents of both 
political parties.
  When President George H.W. Bush, in 1992, nominated Sonia Sotomayor 
to the U.S. District Court for the Southern District of New York, this 
Senate approved her nomination by unanimous consent. When President 
Clinton, in 1998, nominated her to the Second Circuit Court of Appeals, 
this Senate voted 67 to 29 to confirm her on an overwhelmingly 
bipartisan vote.
  Her now-familiar personal story is no less impressive. The 
confirmation of Judge Sonia Sotomayor to the highest

[[Page S8790]]

Court of our country will inspire girls and young women everywhere to 
work hard and to set their dreams high.
  Americans look to lawmakers to work together to make the country 
stronger. They expect us to put partisanship aside to advance the 
interests of the American people. If there is one issue we should be 
able to come together on, to put aside our differences on, it is the 
confirmation of Judge Sonia Sotomayor to the U.S. Supreme Court.
  I look forward to having the opportunity to vote in support of her 
confirmation with the majority of my colleagues.
  I thank Senator Klobuchar. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota is 
recognized.
  Ms. KLOBUCHAR. Mr. President, having looked at Judge Sotomayor's 
whole record, as Senator Shaheen has pointed out, her 17 years on the 
bench and the fairness and integrity she will bring to the job, I am 
proud to support her nomination.
  When Judge Sotomayor's nomination was first announced, I was 
impressed by her life story, as was everyone else, which all of us know 
well by now. She grew up, in her own words, ``in modest and challenging 
circumstances,'' and she worked hard for everything she got.
  Her dad died when she was 9 years old, and her mom supported her and 
her brother. One of my favorite images, as a member of the Judiciary 
Committee, from the hearing was her mother sitting behind her every 
moment of that hearing, never leaving her side, the mother who raised 
her on a nurse's salary, who saved every penny she had to buy an 
Encyclopedia Britannica for her family. That struck me because I know 
in our family we also had a set of Encyclopedia Britannica that had a 
hallowed place in our hallway, and that is what I used to write all my 
reports.
  Judge Sotomayor went on to graduate from Princeton summa cum laude 
and Phi Beta Kappa before graduating from Yale Law School.
  Since law school, she has had a varied and interesting legal career. 
She has worked as a private civil litigator, she has been a district 
court and an appellate court judge, and she has taught law school 
classes.
  But one experience of hers, in particular, resonates with me. 
Immediately after graduating from law school, she spent 5 years as a 
prosecutor at the Manhattan District Attorney's Office.
  I want to talk a little about that because it is something she and I 
have in common. I was a prosecutor myself, Mr. President. You know what 
that is like, to have that duty. I was a prosecutor for Minnesota's 
largest county. As a prosecutor, after you have interacted with victims 
of crime, after you have seen the damage that crime does to individuals 
and to our communities, after you have seen defendants who are going to 
prison and you know their families are losing them, sometimes forever, 
you know the law is not just an abstract subject. It is not just a 
dusty book in the basement. The law has a real impact on the real lives 
of real people.
  It also has a big impact on the individual prosecutor. No matter how 
many years may pass, you never forget some of the very difficult cases. 
For Judge Sotomayor, we know this includes the case of the serial 
burglar turned killer--the Tarzan murderer. For me, there was always 
the case of Tyesha Edwards, an 11-year-old girl with an unforgettable 
smile, who was at home doing her homework when a stray bullet from a 
gang shooting went through the window and killed her.
  As a prosecutor, you don't have to just know the law, you have to 
know the people, the families, and you have to know human nature.
  Judge Sotomayor's former supervisor said she is ``an imposing and 
commanding figure in the courtroom, who could weave together a complex 
set of facts, enforce the law, and never lose sight of whom she was 
fighting for.''
  As her old boss, Manhattan District Attorney Robert Morgenthau said: 
She is a ``fearless and effective'' prosecutor.
  Mr. President, before I turn this over to my colleague, the Senator 
from Michigan, who has just arrived, I thought it would be interesting 
for people to hear a little more about Judge Sotomayor's experience as 
a prosecutor, so you can hear firsthand from her own colleagues.
  This was a letter that was sent in from dozens of her colleagues who 
actually worked with her when she was a prosecutor. They were not her 
bosses necessarily but her colleagues who worked with her. This is what 
they said in the letter.

       We served together during some of the most difficult years 
     in our city's history. Crime was soaring, a general sense of 
     disorder prevailed in the streets, and the popular attitude 
     was increasing violence was inevitable. Sonia Sotomayor began 
     as a ``rookie'' in 1979, working long hours prosecuting an 
     enormous caseload of misdemeanors before judges managing 
     overwhelming dockets. Sonia so distinguished herself in this 
     challenging assignment, that she was among the very first in 
     her starting class to be selected to handle felonies. She 
     prosecuted a wide variety of felony cases, including serving 
     as co-counsel at a notorious murder trial. She developed a 
     specialty in the investigation and prosecution of child 
     pornography cases. Throughout all of this, she impressed us 
     as one who was singularly determined in fighting crime and 
     violence. For Sonia, service as a prosecutor was a way to 
     bring order to the streets of a city she dearly loves.

  Her colleagues go on in this letter:

       We are proud to have served with Sonia Sotomayor. She 
     solemnly adheres to the rule of law and believes that it 
     should be applied equally and fairly to all Americans. As a 
     group, we have different world views and political 
     affiliations, but our support for Sonia is entirely 
     nonpartisan. And the fact that so many of us have remained 
     friends with Sonia over three decades speaks well, we think, 
     of her warmth and collegiality.

  Mr. President, I see that my colleague from Michigan has arrived. I 
will continue my statement when she has completed hers, but I am proud 
to have Senator Stabenow, the Senator from Michigan, here to speak on 
behalf of Judge Sotomayor, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Michigan is 
recognized.
  Ms. STABENOW. Mr. President, first I am so pleased to be here with 
the senior Senator from Minnesota, and I have appreciated her wonderful 
words about Judge Sotomayor, as well as her advocacy on behalf of 
Minnesota. We have a lot in common, Minnesota and Michigan, and so it 
is always a pleasure to be with the Senator from Minnesota.
  I rise today to strongly support the confirmation of Judge Sonia 
Sotomayor as the next Justice of the Supreme Court. Over 230 years ago, 
Alexander Hamilton called experience ``that best oracle of wisdom.'' 
His words continue to ring true today. Judge Sotomayor has over 17 
years of experience on the Federal bench. She will be the most 
experienced Supreme Court Justice in over 100 years--a lifetime.
  But it isn't just her years of experience that will make her a great 
Justice. It will be the experience of a uniquely American life--the 
American dream. She was raised in a South Bronx housing project where 
her family instilled in her values of hard work and sacrifice. At the 
age of 9, her father--a tool-and-die worker--died tragically. After 
that, her mother--a nurse--raised her the best she could. I would say 
she did a pretty good job.
  Her mom urged her to pay attention in school. She pushed Sonia to 
work hard and to get good grades, which she did. She studied hard and 
graduated at the top of her class in high school. It was through 
education that doors opened for Judge Sotomayor, as they have opened 
for millions of other Americans.
  After law school, she went to work as an assistant district attorney 
in New York, prosecuting crimes such as murders and robberies and child 
abuse. She later went into private practice as a civil litigator, 
working in parts of the law related to real estate, employment, 
banking, and contract law.
  In 1992, she was nominated by President George H.W. Bush and 
confirmed by the Senate unanimously to serve as a district court judge. 
She performed admirably, and President Clinton--having been nominated 
first by a Republican and then again by a Democrat--elevated her to the 
Second Circuit Court of Appeals.
  It is in part due to this enormous breadth of experience as a 
prosecutor, a lawyer in private practice, as a trial judge, and as an 
appeals court judge that the American Bar Association has given her 
their highest rating of ``well qualified.''
  Judge Sotomayor's story is the American story--that a young person

[[Page S8791]]

born into poverty can work hard, take advantage of opportunities, and 
then succeed brilliantly and rise to the very top of their profession. 
Judge Sotomayor is really an inspiration to all of us. She is a role 
model for millions of young people of every race, class, creed, and 
background living in America today.
  Last November, we demonstrated that every child in America really can 
grow up to be President of the United States. Judge Sotomayor proves 
that with hard work and dedication they can be a Supreme Court Justice 
too.
  Mr. President, I strongly urge my colleagues to vote to confirm Judge 
Sotomayor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota is 
recognized.
  Ms. KLOBUCHAR. Mr. President, I thank the Senator from Michigan for 
her strong words in favor of this very strong nominee.
  I was talking earlier about the experience that Judge Sotomayor 
brings to the bench as a prosecutor. For me, it means she meets one of 
my criteria for a nominee because I am looking for someone who deeply 
appreciates the power and the impact that laws and the criminal justice 
system have on real people's lives. From her first day in the Manhattan 
DA's office, Judge Sotomayor talked about and understood how it was 
important to view the law as about people and not just the law.
  But when you talk about people, it means you have to look at their 
cases, it means you have to look at the law, and you have to look at 
the facts. One of the things we learned in the hearings was that 
sometimes Judge Sotomayor had to make very difficult decisions. When 
she was a prosecutor, she had to turn down some cases. Although she 
was, by all accounts, more aggressive than other prosecutors and took 
on cases many wouldn't, when she was a judge she sometimes had to turn 
down cases, turn away victims, as in the case involving the crash of 
the TWA flight. She actually disagreed with a number of other judges 
and said as much as she found the victims' families and their case to 
be incredibly sympathetic, the law took her somewhere else; that the 
facts and the law meant something else.
  You could see that in a number of her cases, which is part of the 
reason people who have looked at her record don't think of her as a 
judicial activist. They think of her as a judicial model--someone who, 
in her own words, has a fidelity to the law.
  What are we looking for in a Supreme Court Justice? Well, I think 
actually one of Sonia Sotomayor's old bosses, Robert Morgenthau, said 
it best. He came and testified on her behalf, and he quoted himself 
from many years ago when speaking about what he was looking for when he 
tried to find prosecutors for his office. He said:

       We want people with good judgment, because a lot of the job 
     of a prosecutor is making decisions. I also want to see some 
     signs of humility in anybody that I hire. We're giving young 
     lawyers a lot of power, and we want to make sure that they're 
     going to use that power with good sense and without 
     arrogance.

  These are among the very same qualities I look for in a Supreme Court 
Justice. I, too, am looking for a person with good judgment, someone 
with intellectual curiosity and independence but who also understands 
that her decisions affect the people before her.
  With that, I think comes a second essential quality--the quality of 
humility. I am looking for a Justice who appreciates the awesome 
responsibility they will be given if confirmed, a Justice who 
understands the gravity of the office and who respects the very 
different roles the Constitution provides for each of the three 
branches of government--something Judge Sotomayor was questioned on 
extensively in the hearing and made very clear she respects those three 
different roles for the three different branches of government.
  Finally, a good prosecutor knows their job is to enforce the law 
without fear or favor. Likewise, a Supreme Court Justice must interpret 
the laws without fear or favor. I am convinced that Judge Sotomayor 
meets all of these criteria.
  She has been a judge for 17 years, 11 years as an appellate judge and 
6 years as a trial judge. President George H.W. Bush gave her the first 
job she had as a Federal judge in the Southern District of New York. 
Her nomination to the Southern District was enthusiastically supported 
by both New York Senators--Democratic Senator Daniel Patrick Moynihan 
and Republican Senator Alfonse D'Amato. So she was first nominated by 
George H.W. Bush, supported by a Republican Senator, and as Senator 
Shaheen noted, confirmed unanimously by this Senate.
  Judge Sotomayor, as I noted before, has more Federal judicial 
experience than any nominee in the past 100 years. I think the best way 
to tell what kind of a Justice she will be is to look at what kind of a 
judge she has been. One person who knows a little something about Sonia 
Sotomayor as a judge is Louie Freeh, the former Director of the FBI, 
who served as a judge with her before he was the Director of the FBI. 
He actually came--again, a Republican appointee--and testified for her 
at her hearing. He didn't just testify based on a review of her record, 
he testified based on his own personal experience. He was actually her 
mentor when she arrived as a new judge. I want to read from the letter 
he submitted to the Judiciary Committee.
  Louis Freeh writes:

       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.

  Freeh goes on to say:

       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 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.
       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.''

  Louis Freeh, a Republican-appointed judge, goes on to say:

       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--

  Mr. President, I like this part--

     --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.

  He goes on to talk about those qualities of a good judge.

       1. Judging takes more than mere intelligence;
       2. Always take the bench prepared. . . .
       3. Call them as you see them.

  He then goes on to say:

       Sonia Sotomayor would have gotten an ``A plus'' from the 
     ``Judge from Central Casting,'' as Judge Devitt was often 
     called by his peers.

  I think that says it all. You have Louis Freeh here testifying in 
behalf of Judge Sotomayor. As I read earlier, you have dozens of her 
former colleagues, Republicans, Democrats, Independents, writing about 
what kind of prosecutor she was. Every step of the way she impressed 
people.
  I see we are now being joined by the Senator from New York, my 
distinguished colleague, who also will be speaking in favor of Judge 
Sotomayor.

[[Page S8792]]

  Senator Gillibrand had the distinguished honor to introduce Judge 
Sotomayor when she so eloquently spoke at the hearing. I am very 
honored to have her join us here today.
  I will turn this over to Senator Gillibrand.
  Mrs. GILLIBRAND. Mr. President, I am grateful to the senior Senator 
from Minnesota for her kind words and thank her for her extraordinary 
advocacy on behalf of Judge Sonia Sotomayor. The Senator's words and 
real belief in her contribution is extremely important.
  I thank the Senator.
  I stand today to speak on behalf of Judge Sonia Sotomayor and lend my 
strong support to her nomination to the U.S. Supreme Court.
  Judge Sotomayor will bring the wisdom of all her experiences to bear 
as she applies the rule of law, and will grace the Supreme Court with 
the intelligence, judgment, clarity of thought and determination of 
purpose that we have come to expect from all great Justices on the 
Court.
  Much has been made of Judge Sotomayor's remarkable personal story. 
There has been great import afforded to the characterization of a 
``wise Latina.'' Clearly, the life lessons and experiences of Justices 
inform their decisions as has been noted during the confirmation 
process time and time again.
  Justice Antonin Scalia discussed his being a racial minority, in his 
understanding of discrimination. Justice Clarence Thomas indicated that 
his exposure to all facets of society gave him the ``ability to stand 
in the shoes of other people across a broad spectrum of this country.''
  Justice Samuel Alito described his parents growing up in poverty as a 
learning experience and his family's immigration to the United States 
as influencing his views on immigration and discrimination.
  As Americans, we honor the diversity of our society. As our esteemed 
jurists have noted, the construct of the court is shaped by the diverse 
experiences and viewpoints of each of its Justices. However, Sonia 
Sotomayor's ethnicity or gender alone does not indicate what sort of 
Supreme Court Justice she will be. Rather, it is Judge Sotomayor's 
experience and record that more fully informs us.
  The breadth and depth of Judge Sotomayor's experience makes her 
uniquely qualified for the Supreme Court. Her keen understanding of 
case law and the importance of precedent is derived from working in 
nearly every aspect of our legal system--as a prosecutor, corporate 
litigator, civil rights advocate, trial judge and appellate judge. With 
confirmation, Judge Sotomayor would bring to the Supreme Court more 
Federal judicial experience than any justice in 100 years and more 
overall judicial and more overall judicial experience than any justice 
in 70 years.
  As a prosecutor, Judge Sotomayor fought the worst of society's ills--
from murder to child pornography to drug trafficking. Judge Sotomayor's 
years as a corporate litigator exposed her to all facets of commercial 
law including, real estate, employment, banking, contracts and agency 
law. Her pro bono work on behalf of the Puerto Rican Legal Defense Fund 
demonstrates her commitment to our constitutional rights and the core 
value that equality is an inalienable American right.
  On the U.S. District Court for the Southern District of New York, 
Judge Sotomayor presided over roughly 450 cases, earning a reputation 
as a tough, fair and thoughtful jurist.
  As an appellate judge, Sonia Sotomayor has participated in over 3,000 
panel decisions and authored roughly 400 published opinions. As 
evidence of the integrity of her decisions and adherence to precedence, 
only 7 cases were brought up for review by the Supreme Court, of 
reversing only 3 of her authored opinions, 2 of which were closely 
divided.
  In an analysis of her record, done by the Brennan Center for Justice, 
the numbers overwhelmingly indicate that Judge Sotomayor is solidly in 
the mainstream of the Second Circuit.
  Judge Sotomayor has been in agreement with her colleagues more often 
than most--94 percent of her constitutional decisions have been 
unanimous.
  She has voted with the majority in over 98 percent of constitutional 
cases.
  When Judge Sotomayor has voted to hold a challenged governmental 
action unconstitutional, her decisions have been unanimous over 90 
percent of the time.
  Republican appointees have agreed with her decision to hold a 
challenged governmental action unconstitutional in nearly 90 percent of 
cases.
  When she has voted to overrule a lower court or agency, her decisions 
have been unanimous over 93 percent of the time.
  Republican appointees have agreed with Judge Sotomayor's decision to 
overrule a lower court decision in over 94 percent of cases.
  Judge Sotomayor's record is a testament to her strict adherence to 
precedence--her unyielding belief in the rule of law and the 
Constitution. I strongly support Judge Sotomayor's nomination and 
firmly believe she will prove to be one of the finest justices in 
American history. I urge my fellow Senators to join me in voting for 
her confirmation.
  The PRESIDING OFFICER (Mr. Bennet). The Senator from Minnesota is 
recognized.
  Ms. KLOBUCHAR. Mr. President, I thank the Senator from New York for 
her fine remarks. As she was talking, I was realizing she is a pioneer 
of sorts, being the first woman Senator from New York who took over as 
Senator having two very small children. I have seen them and they are 
small--babies--and she has been able to manage and do a fine job in her 
role of Senator while being a pioneer as a mother at the same time in 
the State of New York.
  With that, it is a good segue to introduce my colleague from the 
State of Washington, Patty Murray, one of the first women to serve in 
the Senate. I love her story because when Patty started running for 
office she was working on some school issues and she went to the 
legislature. One of the elected legislators actually said to her: How 
do you think you are ever going to get this done? You are nothing but a 
mom in tennis shoes.
  She went on to wear those tennis shoes and wear them right to the 
floor of the Senate. I am proud to introduce to speak on behalf of 
Judge Sotomayor my colleague from the State of Washington, Patty 
Murray.
  Mrs. MURRAY. I thank the senior Senator from Minnesota for all her 
work helping to move this very critical and important nomination 
through the Senate. I am here to join her in support of the nomination 
of Judge Sonia Sotomayor to the U.S. States Supreme Court.
  The U.S. Supreme Court is the final arbiter of many our nation's most 
important disputes.
  And as the Constitution provides for a lifetime appointment to the 
Court, a Supreme Court Justice has an opportunity to have a profound 
effect on the future of the law in America. That is why the 
Constitution directs that the Senate is responsible for providing 
advice and consent on judicial nominees.
  Naturally, I take my responsibilities in the nomination and 
confirmation process very seriously.
  But I take a special, personal interest in Supreme Court nominations.
  It was watching Supreme Court confirmation hearings many years ago 
that inspired me to challenge the status quo and run for the Senate.
  I was deeply frustrated by the confirmation hearings of then-nominee 
Clarence Thomas. I believed that average Americans did not have a voice 
in the process.
  There were important questions--questions that needed to be 
answered--that were never even raised to the nominee.
  So, I have worked for years to be a voice for those average Americans 
when it comes to judicial appointments--and make sure those questions 
are asked.
  I have had the opportunity to meet in person with Judge Sotomayor and 
ask her the questions that will most affect all Americans, including 
working families in Washington State.
  I have examined her personal and professional history, and studied 
her 17-year record on the Federal bench.
  I have followed her progress through the Senate Judiciary Committee 
and watched her answer a number of difficult questions.
  And with all of this information and her answers in mind, I am 
pleased to support her nomination.
  By now, many Americans have heard the remarkable life story of Judge

[[Page S8793]]

Sonia Sotomayor. Judge Sotomayor is truly the embodiment of the 
American dream.
  Though many Americans by now have heard Judge Sotomayor's story, some 
points bear repeating.
  Judge Sotomayor is the daughter of Puerto Rican parents. Her father 
died when she was 9, and she and her brother were raised by her mother 
in a public housing project in the Bronx.
  Sotomayor's mother, a nurse, worked extra hours so that she could pay 
for schooling and a set of encyclopedias for her children.
  After graduating from high school, Judge Sotomayor attended college 
at Princeton and law school at Yale.
  She spent five years prosecuting criminal cases in New York, 7 years 
in private law practice, and 17 years as a Federal judge on the U.S. 
District Court and Court of Appeals.
  Judge Sotomayor's story is an inspiring reminder of what is 
achievable with hard work and the support of family and community.
  Of course, a compelling personal story of triumph in tough 
circumstances is not itself enough.
  I have long used several criteria to evaluate nominees for judicial 
appointments: Are they ethical, honest, and qualified? Will they be 
fair, independent, and even-handed in administering justice? And will 
they protect the rights and liberties of all Americans?
  I am confident that Judge Sotomayor meets these criteria.
  She has 17 years of Federal judicial experience and unanimously 
received the highest rating of the American Bar Association--which 
called her ``well qualified'' based on a comprehensive evaluation of 
her record and integrity.
  And she has directly answered questions about her personal beliefs--
and prior statements.
  She has been clear with me, the Judiciary Committee and the American 
people that her own biases and personal opinions never play a role in 
deciding cases. More importantly, her 17 years on the bench stand as 
the testament to this fact.
  Judge Sotomayor has demonstrated her independence. She was nominated 
to the Federal district court by President George H.W. Bush and 
appointed to the U.S. court of appeals by President Clinton.
  Judge Sotomayor has received rave reviews from her fellow judges on 
the Second Circuit, both Republicans and Democrats, as well as strong 
support from a diverse cross section of people and organizations from 
across the political spectrum.
  Finally, it is clear to me that Judge Sotomayor is committed to 
protecting the rights and liberties of all Americans. She understands 
the struggle of working families. She understands the importance of 
civil rights. Her record shows a strong respect for the rule of law and 
that she evaluates each case based on its particular facts.
  Having followed the criteria by which I measure judicial nominees, I 
am confident Judge Sotomayor will be a smart, fair, impartial, and 
qualified member of the U.S. Supreme Court.
  I believe any individual or group from my home State could stand 
before her and receive fair treatment and that she will well serve the 
interests of justice and the public as our next Supreme Court Justice.
  I wish to come to the floor to join with many of my women colleagues 
in the Senate and let the people of Washington State know that, after 
reviewing her qualifications and her record and reviewing her 
testimony, I am very proud to stand and support this nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Ms. KLOBUCHAR. I wish to first thank the Senator from Washington for 
her excellent remarks on Judge Sotomayor.
  During this hour, we have heard from several of my colleagues, all 
strongly supporting Judge Sotomayor. I have talked about, first of all, 
her growing up and her difficult circumstances. I spoke about her work 
as a prosecutor and the support she has received from her prosecutorial 
colleagues.
  I have talked about her work as a judge and read extensively from a 
letter from Louis Freeh, the former Director of the FBI and former 
Federal judge, about her work as a judge. Now, in the final part of my 
talk, I wish to address some of the other issues that have been raised 
with respect to Judge Sotomayor.
  I have to say, I woke up this morning to the radio on my clock radio 
and heard one of my colleagues who decided he was not going to support 
her, in his words, because of the ``empathy standard.''
  I kind of put the pillow over my head. I thought: He must not have 
been sitting in the hearing because she was specifically asked by one 
of the other Senators about how she views the cases. They specifically 
asked her if she agreed with President Obama when he said: You should 
use your heart as well as the law.
  She said: Actually, I do not agree with that. I look at the law and I 
look at the facts.
  So people can say all kinds of things about her, if they would like, 
but I suggest they look at her record.
  My colleagues in the Senate are entitled to oppose her nomination, if 
they wish; that is their prerogative. But I am concerned some people 
keep returning again and again to some quotes in the speeches, a quote 
she actually said, a phrase, that she did not mean to offend anyone and 
she should have put it differently.
  When have you 17 years of a record as a judge, what is more 
important--those 17 years of the record of a judge or one phrase which 
she basically said was not the words she meant to use. What is more 
important?
  In the words of Senator Moynihan: You are entitled to your own 
opinion, but you are not entitled to your own facts. So let's look at 
the facts of her judicial record. This nominee was repeatedly 
questioned, and I sat there through nearly all of it. She was 
questioned for hours and days about whether she would let bias or 
prejudice infect her judgment.
  But, again, the facts do not support these claims. In race 
discrimination cases, for example, Judge Sotomayor voted against 
plaintiffs 81 percent of the time. She also handed out longer jail 
sentences than her colleagues as a district court judge. She sentenced 
white-collar criminals to at least 6 months in prison 48 percent of the 
time; whereas, her other colleagues did so only 34 percent of the time.
  In drug cases, 85.5 percent of convicted drug offenders received a 
prison sentence of at least 6 months from Judge Sotomayor, compared 
with only 79 percent in her colleagues' cases.
  A few weeks ago, I was in the Minneapolis airport and a guy came up 
to me, he was wearing an orange vest. He said: Are you going to vote 
for that woman?
  At first, I did not know what he was talking about. I said: What do 
you mean?
  He said: That judge.
  I said: Actually, I want to meet her first. This is before I had met 
her. I said: I want to ask her some questions before I make a decision.
  He said: Oh, I do not know how you are going to do that because she 
always lets her feelings get in front of the law.
  This guy needs to hear these statistics. He needs to hear the 
statistics Senator Gillibrand was talking about, the statistics that 
when she had served on the bench with a Republican colleague, 95 
percent of the time they made the same decision on a case.
  So then I guess you must believe that these same Republican-appointed 
judges are letting their feelings get in front of the law if you take 
that logic to its extreme. So 95 percent of the time she sided with her 
Republican-appointed judge colleagues.
  During her hearing, Judge Sotomayor was questioned about issues 
ranging from the death penalty to her use of foreign law. That was 
repeatedly mentioned that she might use foreign law to decide a death 
penalty case.
  What do we have as the facts? What do we have as evidence? There was 
one case she decided when the death penalty came before her, and she 
rejected the claim of someone who wanted to say the death penalty would 
not apply when she was a district court judge.
  She never cited foreign law. There was no mention of France or any 
kind of law anywhere in that decision. Those are the facts in her 
judicial record. In no place has she ever cited foreign law to help her 
interpret a provision of the U.S. Constitution.
  I believe that everything in a nominee's professional record is fair 
game

[[Page S8794]]

to consider. After all, we are obligated to determine whether to 
confirm someone for an incredibly important lifetime position. That is 
our constitutional duty and I take it seriously.
  But that said, when people focus on a few items in a few speeches 
that Judge Sotomayor has given, phrases which she has basically said 
she would have said differently if she had another opportunity, you 
have to ask yourself again: Do those statements--are they outweighed by 
the record? Are they outweighed by the facts?
  Check out all these endorsements of people who have actually looked 
at her record, have looked at how she has come out on decisions. You 
have an endorsement from the National District Attorneys Association 
supporting her; you have the support from the Police Executive Research 
Forum; you have support from the National Fraternal Order of Police, 
not exactly a raging liberal organization; you have the support of the 
National Sheriffs Association. Again, these are the facts.
  These are the facts my colleagues should be looking at. You have the 
support from the International Association of Chiefs of Police. You 
have the support of the Major Cities Chiefs Association; she has the 
support of the National Association of Police Organizations; she has 
the support of the Association of Prosecuting Attorneys; we have 
letters supporting her from the Detectives Endowment Association; from 
the National Black Prosecutors Association; from the National 
Organization of Black Law Enforcement Executives. The list goes on and 
on and on.

  Those are the facts: Unanimous top rating from the ABA, the American 
Bar Association. Those are the facts. I believe, if we want to know 
what kind of a Justice Sonia Sotomayor will be, our best evidence is to 
look at the kind of judge she has been.
  I wish to address one more matter that I mentioned at the Judiciary 
hearing, when we voted for Judge Sotomayor, and that has been a point 
that irritated me. There have been some stories and comments, mostly 
anonymous, about Judge Sotomayor's judicial temperament.
  According to one newspaper story about this topic, Judge Sotomayor 
developed a reputation for asking tough questions at oral arguments and 
for being sometimes brisk and curt with lawyers who were not prepared 
to answer them. Well, where I come from, asking tough questions, having 
very little patience for unprepared lawyers is the very definition of 
being a judge. As a lawyer, you owe it to the bench and to your clients 
to be as well prepared as you possibly can be.
  When Justice Ginsburg was asked about these anonymous comments 
regarding Judge Sotomayor's temperament recently, she rhetorically 
asked: Has anybody watched Scalia or Breyer on the bench?
  Surely, we have come to a time in this country when we can confirm as 
many to-the-point, gruff female judges as we have confirmed to-the-
point, gruff male judges. We have come a long way, as you can see from 
my colleagues who came here during the last hour.
  We know that when Sandra Day O'Connor graduated from law school 50-
plus years ago, the only offer she got was from a law firm for a 
position as a legal secretary. Justice Ginsburg faced similar 
obstacles. We have come a long way.
  But I hope my colleagues in this case will also come a long way and 
look at the record and look at the facts. As I have said, people are 
entitled to their own opinions, but they are not entitled to their own 
facts.
  In short, I am proud to support Judge Sotomayor's nomination. I 
believe she will make an excellent Supreme Court Justice. She knows the 
law, she knows the Constitution, but she knows America too.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BURR. 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. BURR. I ask unanimous consent that the Republican time for the 
next hour be allocated as follows: 15 minutes to myself, 15 minutes to 
Senator Martinez, 10 minutes to Senator Bond, and 20 minutes to Senator 
Cornyn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BURR. Mr. President, I rise to express my thoughts on the 
nomination of Judge Sonia Sotomayor to be a U.S. Supreme Court Justice.
  Votes on Supreme Court nominees are among the most important cast by 
a Senator. These nominations warrant a full and in-depth debate. We 
are, after all, considering a lifetime appointment to the highest Court 
in the land.
  I will not spend much time this morning going through the impressive 
background of Judge Sotomayor because I think all Members agree that 
her experience and her academic credentials meet the threshold of what 
the American people expect in a Supreme Court Justice.
  As an alumnus of two of the most prestigious schools in the Nation 
with a lengthy judicial record, Judge Sotomayor is certainly a quality 
nominee for the post. I am also sure she has inspired many throughout 
her noble career.
  More important than the Ivy League schools and the length of public 
service, however, is the judicial record of a nominee and the decisions 
she has made during her tenure on the bench.
  While many see a lengthy judicial record as something that could only 
be considered a positive factor in determining a nominee's suitability 
to serve on the highest Court in the land, others, including myself and 
many of my constituents, see it as an opportunity for a panoramic view 
into the decisionmaking process of a nominee.
  Just as I looked into the background and experience of Judge Roberts 
and Judge Alito, I did the same thing with Judge Sotomayor. With all 
the years she has served on the Federal bench, she has plenty of case 
material to examine and consider.
  Among the most important factors in determining one's suitability for 
the High Court is the nominee's understanding and appreciation for the 
role they are about to take on. Other than having the ultimate say in 
the judicial branch's analysis of the case at hand, the proverbial last 
word, it is no different than a judge's role on any lower court.
  I believe a judge's role is to adhere to the longstanding case 
precedent and to apply the law according to a strict interpretation of 
the Constitution. Let me say that again because I believe it is too 
important to go unheard.
  I believe a judge's role is to adhere to the longstanding case 
precedent and apply the law according to the strict interpretation of 
the U.S. Constitution.
  That is my understanding of the judge's role in our country. Others 
may have different views, and they certainly are entitled to them. As I 
have said, I am troubled by her decisions in cases where she has 
appeared to rely on something other than well-settled law to come to a 
decision. My fear is that she was unable to separate her personal 
belief system from that of the letter of the law.
  In our one-on-one meetings, Judge Sotomayor gave me her assurances 
that she would stick to the letter of the law. Her judicial record 
indicates otherwise, particularly in a couple of very significant 
places and recent occurrences. While my colleagues have mentioned both 
of them prior to me stating them again, today I think they bear 
repeating. Both cases highlight how Judge Sotomayor adheres to 
applicable case precedent.
  First is the Ricci case. I think it is important to take a close look 
at her decision in Ricci v. DeStefano. This is a case where she 
dismissed the claims of 19 White firefighters and one Hispanic 
firefighter who alleged reverse discrimination based on the New Haven, 
CT, decision not to use the results of a promotional exam because not 
enough minorities would be eligible for promotion. In the Ricci case, 
she rejected the firefighters' claim in a one-paragraph opinion. When 
questioned about it in the confirmation hearing, she maintained she was 
bound by precedent. A potentially and ultimately legal landmark case 
warranting a careful and thorough review of the facts at hand and the 
law to be interpreted, and Judge Sotomayor dismissed the claim in one 
paragraph. Clearly, a case with issues involving race and 
discrimination deserved more than a one-paragraph explanation and 
analysis.

[[Page S8795]]

  Even the Obama Justice Department could not defend her actions and 
submitted a brief to the Supreme Court on the matter. In it, they 
agreed that the decision by Judge Sotomayor should be vacated and that 
further proceedings on the case were warranted. This is the Justice 
Department of the Obama administration.
  When the Supreme Court issued their opinion in the case, they stated 
that the precedent relied on for her decision did not exist. When 
pressed in the confirmation hearing about her decision, she avoided 
citing the particulars and simply explained that she was following 
established Supreme Court and Second Circuit precedent. The most 
troubling thing for me to grasp about this response is the Supreme 
Court says, in their reversal of her decision, that precedent for Ricci 
did not exist at all. It was a 5-to-4 decision by the Supreme Court, 
but all nine Justices disagreed with her reasoning--a unanimous 
rejection of her argument by the Supreme Court. The Supreme Court said 
precedent did not exist.
  Maloney v. Cuomo, a second amendment case, is another decision of 
Judge Sotomayor that troubles my impression of her ability to separate 
her own beliefs from that of the letter of the law. It was just decided 
this year--so recently, in fact, that it has not even had a chance to 
be reviewed by the Supreme Court.
  Not to rehash the facts of the case in too much detail, but in 
Maloney v. Cuomo, Judge Sotomayor was faced with determining whether an 
individual right--in this case, the right to bear arms--could also be 
enforced against a State. She decided the Maloney case after the 
historic Heller decision specifically concluded, without any 
explanation, that the right to bear arms is, in fact, not a fundamental 
right--a conclusion no other court has ever reached. As a matter of 
fact, I cosponsored an amicus brief which supported the argument that 
the right to bear arms is a fundamental right and one that could not be 
taken away by government without the highest standard of review. This 
was the argument that ultimately favored the Supreme Court in their 
decision.
  To me, a nonlawyer, her decision in Maloney stands directly contrary 
to what the Supreme Court had just concluded in the Heller case. So not 
only did the Supreme Court set the precedent, she ignored the precedent 
of Heller in the ruling of the Maloney case. How could Judge Sotomayor 
so distinctly and openly come to the conclusion that bearing arms was 
not, in fact, a fundamental right when the Supreme Court, just months 
before, ruled the opposite way? Where did her reasoning come from? I am 
troubled by the lack of deference and adherence to the High Court's 
decision, and it leads me to call into question the commitment she made 
to me in a one-on-one meeting.
  Actions, in this case--actually, decisions--speak much louder than 
rhetoric. These are just two recent, clear examples of where her record 
as a judge, while lengthy, caused me to call into question her ability 
to apply case precedent to come to a decision that would affect the 
lives of North Carolinians and the whole Nation.
  These two decisions I have cited are not examples of missteps early 
in her career or decisions based on lack of experience. These are 
decisions Judge Sotomayor made after 17 years of experience on the 
Federal bench. These are decisions made within the last year or so by a 
seasoned Federal judge who is being considered for a lifetime 
appointment to the Supreme Court of the United States.
  My esteemed colleague from North Carolina mentioned in her speech 
supporting Judge Sotomayor that the late Senator Jesse Helms, who was a 
dear friend of mine, supported the nomination of Judge Sotomayor to be 
a judge on the Second Circuit Court of Appeals. What Senator Helms did 
not have when he reviewed her nomination, however, was the benefit of 
Judge Sotomayor's judicial record during her decade of service on the 
appellate court.
  It is imperative that all Members of the Senate look at the cases 
judges have decided and not just say they have been through the 
confirmation process in the Senate, therefore it should be automatic 
the second time. Their decisions weigh on the relevance of their 
nomination and on their confirmation.
  I am sure her impressive academic and professional resume influenced 
Senator Helms, and I am sure he gave her the benefit of the doubt 
without any reason to question how she might rule on the bench. I have, 
and the Senate has, the benefit of reviewing Judge Sotomayor's actual 
decisions as a circuit judge, in addition to her statements to the 
record. I have the benefit of seeing if she stuck to the letter of the 
law as she stated she would do in testimony when nominated for the 
appellate court in 1998. She has not stuck to the letter of the law.
  In 1998, she said, in response to a question from the current ranking 
member of the Judiciary Committee:

       Sir, I do not believe we should bend the Constitution under 
     any circumstance. It says what it says. We should do honor to 
     it.

  Quite frankly, I believe she bent the Constitution when she ruled in 
the Maloney case that the right to bear arms was not a fundamental 
right of the American people.
  I have repeatedly said that the decisions made by the Supreme Court 
affect the lives of every American. After taking into consideration 
Judge Sotomayor's answers to my questions, reviewing her decisions that 
appear to have departed from the normal principles of jurisprudence, I 
find little predictability in her decisions and the implications they 
might have. I am concerned by the several examples where I believe 
Judge Sotomayor strayed from the rules of strict statutory construction 
and legal precedence and went with her own deeply-held beliefs, while 
providing little in the way of explanations. Therefore, I am unable to 
support her nomination to the Supreme Court.
  I realize, at the conclusion of the next several days, Judge 
Sotomayor has the votes to be a Justice. I will continue to watch the 
decisions she makes based upon the answers she provided to me. But as 
most, if not all, have stated, this is a lifetime appointment. The 
debate that happens over the next 48 hours will determine, in many 
cases, whether a change might happen in this nomination. We cannot end 
this debate without the realization that we will live for generations 
to come with the decisions of this Court, the next Court, and the next 
Court. It will be just as incumbent on Members of the Senate in the 
future to make sure that those nominees are debated thoroughly, that 
their records are reviewed in great detail, and that their pledge to 
protect the Constitution and to follow it as a Justice is upheld. My 
hope is that I am incorrect about how Judge Sotomayor will, in fact, 
use the Constitution. Today, I announce that I will vote against her.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MARTINEZ. Mr. President, I rise to speak on the nomination of 
Judge Sotomayor to the Supreme Court. I am happy to have this 
opportunity, for I view it as a historic moment in many ways.
  The confirmation of a Supreme Court nominee is one of the most solemn 
and unique duties in our constitutional system of government. The 
Framers, recognizing the risk of abuse inherent in a lifetime judicial 
appointment, created a process that brings together all three branches 
of the Federal Government. The Constitution, article II, section 2, 
requires that a nominee to the Federal court must be selected by the 
President and then ``with the advice and consent of the Senate.'' These 
moments must be appreciated and approached with a great deal of 
thoughtfulness and respect. This is all the more true when the 
appointment is to our highest Court, the Supreme Court.
  There was a time when Members of the Senate seemed to better 
understand their role, when Senators expected a President of the other 
party to pick a judge who would likely be different from someone they 
would have picked. There are a couple of examples I would like to use.
  Justice Ginsburg, a very talented person who served as general 
counsel to the ACLU, was not likely to have been someone selected by a 
Republican President. But yet she was confirmed with 95 votes. 
Republicans knew she would be a liberal Justice, but she was also well 
qualified for the job.
  There is another example; that is, Justice Antonin Scalia. He was 
picked by a Republican President and received

[[Page S8796]]

98 votes. Every Democrat knew or probably should have known that they 
were voting for a conservative, but they also understood that then-
Judge Scalia was incredibly qualified and should be serving on the 
Supreme Court, given that he had been nominated by a President and had 
the requisite qualifications, which is really the essence of what this 
confirmation process is and should be about.
  But things have changed since those votes. They have changed from 
what is historically acceptable and what has been the long historic 
tradition of the Senate when it comes to Senate confirmations of 
judicial nominees. Over the past decade, I believe the Senate has lost 
sight of its role to advise and consent.
  I notice another example. The nominations of Miguel Estrada, Chief 
Justice Roberts, and Justice Alito--all three of these illustrate how 
partisan politics have been permitted to overwhelm the fundamental 
question posed to the Senate, which is, Is this nominee qualified? Do 
you give your advice and your consent?
  My colleagues will recall that Mr. Estrada was first nominated by 
President George W. Bush to the DC Circuit in May of 2001. He was 
unanimously rated ``well-qualified'' for the bench by the American Bar 
Association.
  Mr. Estrada was someone who had a very impressive history and 
personal story and resume. He was a native of Honduras. Mr. Estrada 
immigrated to this country at age 17, graduated magna cum laude and Phi 
Beta Kappa from Columbia University. He received his law degree from 
Harvard in 1986, where he was a member of the Harvard Law Review, and 
went on to clerk on the Supreme Court for Justice Kennedy.
  Mr. Estrada then entered private practice and was a very well-
respected lawyer working in a New York law firm and served as an 
assistant U.S. attorney in the Southern District of New York, where I 
believe our nominee also served. But then Mr. Estrada took a job in the 
George H.W. Bush administration as an Assistant Solicitor General. What 
does an Assistant Solicitor General do? They prepare and argue cases 
before the Supreme Court. What could be a better training ground, in 
addition to having a prior clerkship for a Court member, than to be an 
Assistant Solicitor General? As a longtime attorney, I always admire 
greatly those who have served in that office because they are the very 
best of the very best.
  But politics intervened. He was branded a conservative. Through the 
course of an unprecedented seven cloture votes, Democrats in this body 
filibustered his nomination. Time and again, they filibustered his 
nomination. It lingered for 28 months, until he finally withdrew--
exhausted, wanting to get on with his life, knowing he needed to be 
able to continue to do work for clients, that he could not continue to 
be in this limbo where he had been for 28 months because of the 
misguided notion that he was just too conservative and so it was OK to 
filibuster him. For 28 months he was hanging, dangling in the wind. 
That was not right. It was not to the Supreme Court, but some feared 
that someday he might be a Supreme Court candidate, he might have been 
the first Hispanic serving in the Supreme Court, nominated, perhaps, by 
a Republican President.
  So while the nominations of Chief Justice Roberts and Justice Alito 
ended quite differently from Mr. Estrada's, the record is, frankly, 
equally disturbing.
  During the debates on both Roberts and Alito, then-Senator Barack 
Obama declared each man to be qualified to sit on the Supreme Court. Of 
then-Judge John Roberts, Senator Obama said, right here on the Senate 
floor:

       There is absolutely no doubt in my mind Judge Roberts is 
     qualified to sit on the highest court in the land.

  To which I would then say: So why won't you vote for him?
  He then said of then-Judge Alito:

       I have no doubt that Judge Alito has the training and 
     qualifications necessary to serve. He's an intelligent man 
     and an accomplished jurist. And there's no indication he's 
     not a man of great character.

  But despite these emphatic statements of confidence, then-Senator 
Obama voted against confirmation. Why? Because of his perception that 
their philosophy would not allow him to vote for them.
  Given this record, some of my colleagues conclude that what is good 
for the goose is good for the gander; that because of these recent 
precedents, and despite her qualifications, they may still vote against 
Judge Sotomayor's confirmation. I could not disagree more heartily.
  It is my hope that starting today, we will no longer do what was done 
to Miguel Estrada; that beginning today, no Member will pursue a course 
and come to the floor of this Chamber to argue against the confirmation 
of a qualified nominee.
  So what about our current nominee? What makes her qualified? Well, 
first, I think we do have in Judge Sotomayor a very historic moment, an 
opportunity. It will be the first Hispanic to serve on the highest 
Court of this land. It is a momentous and historic opportunity.
  But that is not good enough. What makes her qualified? Well, I think 
experience, knowledge of the law, temperament, the ability to apply the 
law without bias--these qualifications should override all other 
considerations when the Senate fulfills its role to advise and consent 
to the President's nominee, as dictated by the constitutional charge we 
have. These are really the standards by which we as a body should 
determine who is qualified to serve on any Federal court, including the 
highest Court of the land. These are the standards I have used in 
evaluating Judge Sotomayor's nomination to the Supreme Court. She has 
the experience. She knows the law. She has the proper temperament.
  Here is something that is very important: Her 17-year judicial record 
overwhelmingly indicates she will apply the law without bias. That is 
very important because we could find someone who really is facially 
qualified but whose views might be, for some reason, so outside the 
mainstream, so different from what the norm of our jurisprudence would 
be, that it might render them, while facially qualified, truly 
unqualified--that they really could not be relied on to look at a case 
and apply the facts and the evidence and apply the law to the evidence 
presented, that they would not follow the law, that they would not be 
faithful to their oath because their views would be so extreme, so 
outside the mainstream, so completely beyond what would be the norm or 
considered to be the norm. But here in this person we have a 17-year 
record. She has written thousands of opinions. These opinions provide 
the body of law of what she does as a judge--not what she said to a 
group of students one day, trying to encourage them in their lives and 
what they might be doing, not what someone might gain from reading an 
opinion that perhaps they would not agree with. It is not about whether 
we agree with her outcomes, it is whether her opinions were reasoned, 
whether they had a foundation in law, whether they were reasonable 
decisions, whether she reached them on the basis of law and evidence 
that are supported by sound legal thinking. Her worst critics cannot 
cite a single instance where she strayed from sound judicial thinking.
  I believe she will serve as an outstanding Associate Justice to the 
U.S. Supreme Court, and she will be a terrific role model for many 
young people in this country.
  Were I to have had my opportunity to pick, I may have chosen someone 
different than Judge Sotomayor. But that is not my job. I do not get to 
select judges. I get to give advice and consent. We sometimes confuse 
the role of the Senate. Elections have their consequences. Some of her 
writings and her statements indicate that her philosophy might be more 
liberal than mine, but that is what happens in elections.
  When I was campaigning for my colleague and dear friend John McCain, 
I knew it was going to be important because there would be vacancies to 
the Court. I knew I would be much more comfortable with a nominee whom 
John McCain would nominate than one my former colleague and friend, 
President Barack Obama, might nominate. The President has the 
prerogative, the obligation, the responsibility to choose his own 
nominees. Our job is to give advice and consent.
  The President has chosen a nominee, and my vote for her confirmation 
will

[[Page S8797]]

be based solely and wholly on relevant qualifications. Judge Sotomayor 
is well qualified. She has been a Federal judge for 17 years. She has 
the most experience of any person--on-the-bench judicial experience of 
any person--nominated for the Court in a century. In 100 years, there 
has not been anyone who has been on the bench with such a distinguished 
record for such a long period of time. That is why, by the way, her 
record is really her judicial decisions. We do not have to wonder. We 
do not have to sit around and try to divine whether someday she will 
answer the siren call to judicial activism, as I have heard someone say 
on the floor of the Senate. You do not have to wonder. You can wonder, 
and it might give you an excuse to vote against someone who is 
otherwise qualified, but the fact is, with a 17-year record, you should 
have a pretty good idea whether that siren call would have been 
answered by now. To my estimation, it has not been.

  She received the highest possible rating from the American Bar 
Association for a judicial candidate--equal to that of Miguel Estrada, 
equal to that of Chief Justice Roberts, and equal to that of Justice 
Alito. She has been a prosecutor. She has been, throughout her career, 
an outstanding lawyer. As a prosecutor, she was a pretty tough one too. 
With less than a handful of exceptions, her 17-year judicial record 
reflects that while she may be left of center, she is certainly well 
within the mainstream of legal thinking.
  Her mainstream approach is so mainstream that it has earned her the 
support of the U.S. Chamber of Commerce as well as the endorsement of 
several law enforcement and criminal justice organizations. She has 
been endorsed by the National Fraternal Order of Police, the National 
Sheriffs' Association, and the International Association of Chiefs of 
Police. I daresay she will be a strong voice for law and order in our 
country.
  I disagree with Judge Sotomayor about several issues. I would expect 
to have disagreements with many judicial nominees of the Obama 
administration but probably fewer with her than some I might see in the 
future. Although I might disagree with some of her rulings, we know she 
has a commitment to well-reasoned decisions--decisions that seek, with 
restraint, to apply the law as written. I do believe she will rule with 
restraint. That has been her judicial history and philosophy. For 
instance, I believe her view as expressed in her panel's Maloney v. 
Cuomo opinion of whether the second amendment applies against State and 
local governments is too narrow and contrary to the Founders' intent. 
But I also know there is significant and well-reasoned disagreement 
among the Nation's appellate courts on this issue. In other words, it 
is not out of the mainstream. On this issue, I accept the idea that 
reasonable people may differ.
  This debate raises critical and difficult issues regarding the role 
of federalism in the application of fundamental constitutional rights. 
But the confirmation process is not the proper place to relitigate this 
question, nor is Judge Sotomayor's judicial record on this issue 
outside the mainstream.
  I believe her statements on the role of international law in American 
jurisprudence reflect a view that is too expansive. Yet her judicial 
record indicates that, in practice, she has given only limited, if any, 
weight to foreign court decisions. For example, in Croll v. Croll, a 
2000 international child custody case involving the Hague Convention on 
International Child Abduction, Judge Sotomayor wrote a dissenting 
opinion in which she concluded that the holdings of the courts of 
foreign nations interpreting the same convention were ``not essential'' 
to her reasoning.
  I believe some of the statements she has made in her speeches about 
the role of one's personal experience are inconsistent with the 
judicial oath's requirement that judges set aside their personal bias 
when making those decisions. There are several of my colleagues who say 
these statements demonstrate that Judge Sotomayor is a judicial 
activist in hiding. This assertion, however, is not supported by the 
facts. We can throw it out there, but it is not supported by the facts. 
The relevant facts--her 17-year judicial record--show she has not 
allowed her personal biases to influence her jurisprudence. They can 
talk about her speeches, but they cannot talk about a single solitary 
opinion in 17 years on the bench where that type of a view has been 
given life, where that type of a view has found itself into the pages 
of a single one of her opinions. I would rather put my trust and my 
expectations for the future on her 17-year record of judicial decisions 
than I would on one or two speeches she might have given over 10 or 15 
years.
  Those who oppose Judge Sotomayor have yet to produce any objective 
evidence that she has allowed her personal bias to influence her 
judicial decisionmaking. Moreover, in her testimony before the 
Judiciary Committee, she reiterated her fidelity to the law, that as a 
Justice she would adhere to the law regardless of the outcome it 
required.
  So based on my review of her judicial record and her testimony before 
the Judiciary Committee, I am satisfied Judge Sotomayor is well 
qualified to sit on our Nation's highest Court. I intend to vote for 
her confirmation. I intend to also be very proud of her service on the 
Supreme Court of the United States where I think, again, she will serve 
a very historic and unique role to many people in this Nation who I 
know will look to her with great pride.

  Thank you, Mr. President. I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Kaufman). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BOND. 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. BOND. Mr. President, I rise today to speak on the nomination of 
Judge Sonia Sotomayor to the Supreme Court of the United States.
  Few positions carry more honor, or solemn duty, than becoming a 
Justice of the highest court of the greatest democracy.
  Also, few duties carry more honor, or solemn responsibility, than 
giving advice and consent on who should become a Justice on the highest 
Court of the greatest democracy.
  The walls of that Supreme Court form the vessel that holds the great 
protections of our liberty.
  Those black robes give life to the Constitution's freedoms and the 
flourishing of our ideas and beliefs.
  If the Congress is the heart of our democracy, walking to the 
drumbeat of the people, then the Supreme Court is our soul guiding us 
on what is right and what is wrong.
  In my role as a Senator voting to fill that vessel, issuing those 
robes, I have always looked to the Constitution to guide my obligation 
to give advice and consent.
  It is an obligation separate and apart from my role as a legislator, 
when I vote for or against legislation before this body.
  Indeed, if the Constitution meant for us merely to vote on nominees, 
by simple or super majorities, it could easily have said so.
  If we were meant to do nothing more than cast a vote based on whether 
we agreed or disagreed with a nominee, where would we be then?
  Would the halls of government be empty every time a President faced a 
Congress of the opposite party?
  Would the Cabinet sit empty because of partisan divide?
  Would vacancies to the Supreme Court go unfilled, because a majority 
of one party simply disagreed with the President of another?
  Of course, that could not have been the intent of the Framers.
  What kind of Justices would we have, with nothing more than partisan 
majority divides?
  Would a Senate controlled by the opposite party allow only the most 
moderate of voices, or justices with no voice at all?
  Would it approve only judges that said nothing, or wrote nothing with 
which the majority disagreed?
  If some are saying that a Democratic President should not have a 
liberal Justice, does that mean a Republican President should not have 
conservative Justices?
  That is not something I could support, for I surely supported 
judicially conservative Justices such as Roberts and Alito, Thomas and 
Bork--Scalia certainly if I had been in the Senate at the time.

[[Page S8798]]

  That is the kind of Justice I support, a judge that calls balls and 
strikes like an umpire, not letting their own personal views bias the 
outcome of the trial.
  The statue of justice is blindfolded for a reason, so that she cannot 
tip the scales of justice with the prejudice of bias or belief.
  But I have supported Justices with whom I disagreed on this 
philosophy. Justices Breyer and Ginsberg come to mind.
  They take a more active role in shaping their decisions, to fit an 
ideal of their own vision.
  I supported these nominees of a Democratic President, as did 86 of my 
colleagues for Justice Breyer, and 95 of my colleagues for Justice 
Ginsberg.
  I hope those votes do not reflect a time that has slipped away, when 
partisanship did not infect every facet of our political life.
  I could forget that time, as President Obama did when he was a 
Senator.
  I could easily say, as Senator Obama said, that I disagree with a 
nominee's judicial approach, and that allows me to oppose the nominee 
of a different party.
  Luckily for President Obama, I do not agree with Senator Obama.
  I reject the Obama approach to nominees.
  While I reject the way Senator Obama approached nominations, that 
does not mean that I support the way Judge Sotomayor approaches 
judging.
  I disagree that the civil rights of a firefighter mean so little that 
they do not deserve even a full opinion before an appeals court.
  I disagree that we should inspire with suggestions that wisdom has 
anything to do with the sex of a person or the color of their skin.
  I disagree that judges should ever consider foreign law when looking 
for meaning in U.S. statutes or the U.S. Constitution.
  I disagree that the second amendment's protection of an individual's 
right to bear arms does not apply to States.
  But I do agree that Judge Sotomayor has proven herself a well 
qualified jurist.
  I do agree that she has proven herself as a talented and accomplished 
student, Federal prosecutor, corporate litigator, Federal trial judge, 
and Federal appeals court judge.
  She has the backing of many in the law enforcement community 
including the Fraternal Order of Police, the National Sheriffs 
Association, and the National Association of District Attorneys.
  I do agree that Judge Sotomayor has proven herself as a leader of her 
community, who inspires the pride and hopes of a large and growing 
portion of our American melting pot.
  I do agree that Judge Sotomayor has proven herself as a symbol of 
breaking through glass ceilings.
  And I do agree that my choice for President did not win the last 
election, and that our people's democracy has spoken for the change and 
they are getting it. Elections do have consequences.
  Now, hearing the call of that decision of our democracy does not mean 
that I support the President in everything he has proposed.
  I did not agree with a stimulus that has meant only more government 
spending and national debt as the unemployment continues to rise.
  I do not agree with cap and trade legislation that will raise energy 
taxes and kill millions of lost jobs without even changing the climate 
because China and India refuse to act the same.
  I do not agree with a government takeover of health care that forces 
millions of Americans off their current health care, drives health care 
costs even higher for families, rations care, restricts access to the 
latest cures and treatments, and puts health care decisions in the 
hands of government bureaucrats rather than doctors and patients.
  But I do agree that the country is tired of partisanship infecting 
every debate. The country is tired of every action by the Congress 
becoming a political battle.
  And so, I will not follow the hypocrisy of many of my Democratic 
colleagues who refused to support Justices Roberts and Alito because 
they disagreed with their judicial philosophy and now suggest that 
Republicans not do the same.
  I respect and agree with the legal reasoning of my colleagues who 
will vote no, but I will follow the direction of the past, and my hope 
for the future, with less polarization, less confrontation, less 
partisanship.
  My friends in the party can be assured that I will work as hard as 
anybody to ensure that the next Presidential election has consequences 
in the opposite direction.
  For my conservative friends, the best way to ensure that we have 
conservative judges on the bench is work to see that we elect 
Presidents who will nominate them.
  Then we can resume filling the bench with more judges like Justice 
Roberts.
  For my liberal friends I hope they remember this day when another 
qualified nominee is before the Senate who is conservative. The 
standard set by Senator Obama should not govern the Senate.
  As for Judge Sotomayor, she has the accomplishments and qualities 
that have always meant Senate confirmation for such a nomination.
  The Senate has reviewed her nomination and has asked her its 
questions. There have been no significant findings against her. There 
has been no public uprising against her.
  I do not believe the Constitution tells me I should refuse to support 
her merely because I disagree with her.
  I will support her. I will be proud for her, the community she 
represents and the American dream she shows possible.
  I will cast my vote in favor of the nomination of Judge Sotomayor, 
and I urge my colleagues to do the same.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I wish to address the nomination of Judge 
Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court as 
well. I have spoken about this nomination several times, both here on 
the Senate floor and on the Senate Judiciary Committee on which I 
serve. I have shared what I admire about Judge Sotomayor, including her 
long experience as a Federal judge, her academic background, which is 
stellar, and her record of making decisions that for the most part are 
within the judicial mainstream. I have also explained before why I will 
vote against this nomination and I wish to reiterate and expand on some 
of those comments here today as all of us are stating our intentions 
before this historic vote which I suspect will be held sometime 
tomorrow.
  First, I cannot vote to confirm a nominee to the U.S. Supreme Court 
who restricts several of the fundamental rights and liberties in our 
Constitution, including our Bill of Rights. Based on her decision in 
the Maloney case, Judge Sotomayor apparently does not believe that the 
second amendment right to keep and bear arms is an individual right. 
Indeed, she held in that case that the second amendment did not apply 
to the States and local jurisdictions that might impose restrictions on 
the right to keep and bear arms. Then based on her decision in the 
Didden v. The Village of Port Chester case, she apparently does not 
believe that the takings clause of the fifth amendment protects private 
property owners when that private property is taken by government for 
the purpose of giving it to another private property owner, in this 
case a private developer. I am very concerned when the government's 
power to condemn property for a private purpose conflicts with the 
stated intention of the Framers of the Constitution that the right of 
condemnation of private property only extend to public uses and then, 
and only then, when just compensation is paid.
  Then based upon her decision in the Ricci case--this is the New Haven 
firefighter case--which calls into question her commitment to ensure 
that equal treatment applies to all of us when it comes to our jobs or 
promotions without regard to the color of our skin. Indeed, in that 
case, because of her failure to even acknowledge the seriousness and 
novelty of the claims being made by the New Haven firefighters, she 
gave short shrift to those claims in an unpublished order and denied 
Frank Ricci, Ben Vargas, and other New Haven firefighters an 
opportunity for a promotion, even though they excelled in a 
competitive, race-neutral examination, because of the color of their 
skin.
  Fortunately, the Supreme Court of the United States saw fit to 
overrule

[[Page S8799]]

Judge Sotomayor's judgment in the New Haven firefighter case. Millions 
of Americans became aware, perhaps for the first time, of this 
notorious decision and what a morass some of our laws have created 
when, in fact, distinguished judges like Judge Sotomayor think they 
have no choice but to allow people to be denied a promotion based upon 
the color of their skin for fear of a disparate impact lawsuit, even 
when substantial evidence is missing that such a disparate lawsuit 
would have merit or likely be successful.
  I cannot vote to confirm a nominee who has publicly expressed support 
for many of the most radical legal theories percolating in the faculty 
lounges of our Nation's law schools.
  We heard this during the confirmation hearings and, frankly, Judge 
Sotomayor's explanations were unconvincing. Previously, she said there 
is no such thing as neutrality or objectivity in the law--merely a 
series of perspectives, thus, I think undermining the very concept of 
equal justice under the law. If the law is not neutral, if it is not 
objective, then apparently, according to her, at least at that time, 
the law is purely subjective, and outcomes will be determined on which 
judge you get rather than what the law says.
  She has said in one notorious YouTube video that it is the role of 
judges to make policy on the court of appeals. She has said that 
foreign law can get the ``creative juices flowing'' as judges interpret 
the U.S. Constitution, and she has said, as we know, ethnicity and 
gender can influence a judge's decision and judges of a particular 
ethnicity or gender can actually make better decisions than individuals 
of a different gender or ethnicity.
  Third, I cannot vote to confirm a judicial nominee who testified 
before the Judiciary Committee that her most controversial decisions 
were guided by precedent, when her colleagues on the Second Circuit, 
and indeed the Justices of the U.S. Supreme Court who reversed her, 
said just the opposite; or who testified that she meant the exact 
opposite of what she said--every time she said something controversial 
and was trying to explain that; or a person who testified that she had 
no idea what legal positions the Puerto Rican Legal Defense and 
Education Fund was taking--even when she chaired the litigation 
committee of its board of directors.
  The hearings before the Senate Judiciary Committee have a very 
important purpose, and that purpose is informed by article II of the 
U.S. Constitution that provides for advice and consent on nominations. 
It is not to serve as a rubberstamp. I have heard colleagues say that 
elections have consequences, and the President won. Well, it is obvious 
and evident that elections have consequences and that President Obama 
won. But that doesn't negate or erase the obligation each Senator has 
under the same clause and article of the Constitution to provide advice 
and consent based on our best judgment and good conscience.
  In the case of Judge Sotomayor, the question becomes: What will she 
do with the immense power given to a member of the U.S. Supreme Court? 
What impact will she have on our rights and liberties over the course 
of a lifetime? Of course, this appointment is for life. In short, the 
question is, what kind of Justice will she be on the Supreme Court, 
where her decisions are no longer reviewed by a higher court as they 
were as a Federal district court or a court of appeals justice. The 
question is, will she be the judge she has been as a lower court judge, 
making decisions which, by and large, have been in the mainstream, with 
some notable exceptions, which I have talked about, or will she be 
untethered? Will she be the Judge Sotomayor of some of her radical 
speeches and writings, which cause me concern?
  The answers to these questions, I regret, are no clearer after the 
hearings than before. The stakes are simply too high for me to confirm 
someone who could redefine ``the law of the land'' from a liberal, 
activist perspective.
  I respect different views of Senators on this nomination, and I have 
no doubt that Judge Sotomayor will be confirmed. But I am unwilling to 
abdicate the responsibility I believe I have as a Senator when it comes 
to voting my conscience and expressing my reservations. The Senate 
developed our confirmation process for a very important purpose: to 
learn more about the individual nominees. But over the last several 
weeks, I think we have also learned more about a rising consensus with 
regard to what we should expect from a judge. I will highlight two 
important lessons we have learned.
  One is encouraging to me and one is worrisome. Let's start with the 
good news. I believe Republicans and Democrats on the Judiciary 
Committee, and indeed Judge Sotomayor herself, seem to say the 
appropriate judicial philosophy for nominees to the Federal bench is 
one that expresses fidelity to the law and nothing else. Over years, we 
have been debating whether we have an original understanding of the 
Constitution or some evolving Constitution, even though it can be 
interpreted in different ways, even though the words on the paper read 
exactly the same. We went back and forth on the merits, or lack of 
merits, of judicial activism--judges taking it upon themselves to 
impose their views rather than the law in decisions. On many occasions, 
our disagreements over judicial philosophy were anything but civil and 
dignified.
  I think of the nomination of Miguel Estrada to the District of 
Columbia Court of Appeals, which some have said is the second highest 
court in the land. Miguel Estrada, although an immigrant from Honduras 
who didn't speak any English when he came to the United States, 
graduated from a top university and law school in this country. He was 
filibustered seven times an denied an up-or-down vote. One member of 
the Judiciary Committee, disparaging Mr. Estrada's character, called 
him a ``stealth missile, with a nose cone, coming out of the right 
wing's deepest silo.''
  Samuel Alito, an Italian-American who is proud of his heritage, had 
to defend himself against false charges of bigotry--accusations that 
left his wife in tears.
  Then there was Clarence Thomas--perhaps the one we remember the 
best--an African American nominee to the Supreme Court who described 
his experience before the Judiciary Committee this way:

       This is a circus. It's a national disgrace. And from my 
     standpoint as a black American, it is a high-tech lynching 
     for uppity blacks.

  These nominees were accused at various times of certain offenses, 
even though the real crime, as we all know, was a crime of conscience. 
They dared to be judicial conservatives--a philosophy that the nominee 
we are talking about today and Senate Democrats now appear to embrace.
  I hope the days of the unfair and uncivil and undignified Judiciary 
Committee hearings are behind us. I hope our hearings are more 
respectful of the nominees, as was this hearing for Judge Sotomayor. 
She herself proclaimed that she could not have received fairer 
treatment. I appreciated her acknowledging the fairness and dignity of 
the process.
  I hope the ``thought crimes'' of yesterday have now become the 
foundation for a new bipartisan consensus, including the views that 
Judge Sotomayor affirmed at her hearing and that we affirmed as both 
Republicans and Democrats, and the views that Judge Sotomayor rejected 
at her hearings and we rejected as both Republicans and Democrats.
  Let me give a few examples of our new bipartisan consensus on the 
appropriate judicial philosophy for a nominee to the U.S. Supreme 
Court. Judge Sotomayor, at her hearing, put it this way:

       The intent of the Founders was set forth in the 
     Constitution. . . . It is their words that [are] the most 
     important aspect of judging. You follow what they said in 
     their words, and you apply it to the facts you're looking at.

  I cannot think of a better expression of a modest and judicially 
restrained philosophy that I embrace than what Judge Sotomayor said at 
her hearing. Both Republicans and Democrats appeared to be pleased with 
that statement.
  We agreed that foreign law has no place in constitutional 
interpretation. Notwithstanding her earlier statements, Judge Sotomayor 
said at the hearing:

       Foreign law cannot be used as a holding or a precedent, or 
     to bind or influence the outcome of a legal decision 
     interpreting the Constitution or American law.


[[Page S8800]]


  As I said, notwithstanding her earlier statements, I agree with that 
statement she made at the hearing. I believe both Republicans and 
Democrats were satisfied with that statement as well.
  We agreed that ``empathy'' or ``what's in a person's heart''--to 
borrow a phrase from then-Senator Obama--should not influence the 
decisions of a judge. I think we were all a little surprised when Judge 
Sotomayor, at the hearing, rejected President Obama's standard. She 
said:

       I wouldn't approach the issue of judging the way the 
     President does. . . . Judges can't rely on what's in their 
     heart. They don't determine the law. Congress makes the law. 
     The job of a judge is to apply the law. And so it's not the 
     heart that compels conclusions in cases--it is the law.

  I agree with that statement, and indeed Republicans and Democrats 
alike appeared to embrace that statement of an appropriate judicial 
philosophy. No one defended the statement that then-Senator Obama made 
with regard to empathy or what is in a person's heart. I was encouraged 
to see that.
  Mr. President, supporters of Judge Sotomayor appear willing to accept 
her statements that I have just quoted at the Judiciary Committee at 
face value. I hope they are right; I really do. I certainly intend to 
take my colleagues' agreement with these statements at face value. I 
expect future nominees to the Federal judiciary to conform to this new 
consensus articulated by Judge Sotomayor at her hearing and embraced in 
a bipartisan fashion by the members of the Judiciary Committee.
  Mr. President, I have no question about the outcome of this vote on 
Judge Sotomayor. I regret, for the reasons I have stated, that I cannot 
vote for her because I cannot reconcile her previous statements with 
her testimony at the Judiciary Committee hearing. Also, I wish Judge 
Sotomayor well as she serves on the Supreme Court. The concerns that I 
raised here, and the uncertainty I have about regarding what kind of 
Justice she will be--I hope she will prove those concerns unjustified 
by the way she distinguishes herself as a member of the U.S. Supreme 
Court. I hope her tenure will strengthen the Court, as well as its 
fidelity to the plain meaning of the Constitution. I congratulate her 
and her loved ones on her historic achievement.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SPECTER. 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. SPECTER. Mr. President, I ask unanimous consent that the hour of 
Democratic speaking time be divided 30 minutes under my control, 15 
minutes for Senator Lautenberg, and 15 minutes for Senator Dodd.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to comment 
about the confirmation of Judge Sotomayor for Associate Justice to the 
Supreme Court and to comment on other subjects directly related to the 
confirmation process and comment about the reality of judicial 
legislation, about the emerging standard on rejecting the tradition of 
deference to the President, with Senators' ideology being the 
determinant, the Court's reduced workload, the failure to decide major 
cases, the lack of public understanding of what the Court does, the 
need for accountability and transparency, and the strong case to be 
made for televising the Supreme Court.
  For me, the confirmation of Judge Sotomayor is an easy one. During 
the 11 confirmation proceedings I have participated in and others I 
have studied, I know of no one who brings a stronger record than Judge 
Sotomayor: summa cum laude at Princeton, Yale Law School, Yale Law 
Journal, prestigious New York firm, assistant district attorney with DA 
Morganthau who sings her praises, 17 years on the Federal bench.
  The criticisms which were made against her, my judgment is they were 
vacuous. A great deal of time in committee was spent on her comment 
about ``a wise Latina woman.'' My view is that she should have been 
commended for that statement, not criticized. Why do I say ``commend''? 
Why shouldn't a woman stand up for women's capabilities? In a society 
which did not grant women the right to vote until 1920, in a society 
which still harbors the tough glass ceiling limiting women, in a 
society where only two women have served on the Supreme Court, in a 
Senate where only 17 of the 100 Senators are women, I would expect a 
woman to proudly speak up for women's competency.
  To talk about being a Latino, well, what is wrong with a little 
ethnic pride? And isn't it about time that we had some greater 
diversity on the Supreme Court? Isn't it surprising, if not scandalous, 
that it took until 1967 to have an African American on the Court, 
Thurgood Marshall, and it took until 1981 to have the first woman on 
the Court, Sandra Day O'Connor?
  Judge Sotomayor is a role model and will be a broader role model if 
confirmed. The conventional wisdom is that she will be confirmed. Isn't 
there a greater assurance in a society as diverse as ours to have 
someone on the Court to represent that kind of diversity, all within 
the rule of law?
  A criticism was made of her with respect to the New Haven 
firefighters case--very complex, very subtle, very nuanced on disparate 
impact. The Supreme Court divided 5 to 4. So what is there to criticize 
on Judge Sotomayor's standing for joining a per curiam opinion?
  I asked a question of the New Haven firefighters who appeared: Do you 
have any reason to believe that Judge Sotomayor operated in anything 
but good faith? Both of the young firefighters candidly said they had 
no opinion on that subject.
  Then there is the criticism about her conclusion, her judgment that 
second amendment rights are not incorporated within the 14th amendment 
due process clause to be applied to the States. That is the precedent 
of the Supreme Court of the United States. It is not up to a certain 
court to rule differently when they are bound by the Supreme Court, 
even if it is an old case.
  The distinguished seventh circuit agreed with Judge Sotomayor. The 
argument was made well. The ninth circuit has said second amendment 
rights are applicable to the States.
  Since the hearing, the court en banc in the ninth circuit has granted 
review of a decision by the three-judge panel with every indication 
that the three-judge panel in the ninth circuit will be reversed.
  So when you add up all of the comments and all of the criticism, 
nothing, in my judgment, is left standing.
  The issue of judicial legislation is one which occupied the thinking 
and consideration of a number of those who were opposed to Judge 
Sotomayor. But there is nothing in her record to suggest she will 
engage in judicial legislation.
  When you take a look at the Supreme Court of the United States, that 
has become the rule of the era, as opposed to rule of law where the 
Court is supposed to interpret the Constitution and statutes and leave 
to the Congress and the State legislatures the job of establishing 
public policy.
  During the era of the Warren Court, there was a vast expansion of 
constitutional rights. I was in the Philadelphia district attorney's 
office at the time and literally saw the Constitution change day by 
day. In 1961, Mapp v. Ohio came down applying the fourth amendment 
protection on search and seizure to the States. In 1963, Gideon v. 
Wainwright, right to counsel; 1964, Escobedo v. Illinois; 1966, 
Miranda. Those were constitutional rights and changing values as 
articulated by Justice Cardozo in Palko.
  But in more recent times, there has been a vast expansion of the 
Supreme Court, in effect, legislating. I refer specifically to the case 
United States v. Morrison which involved the issue of the legislation 
protecting women against violence. Chief Justice Rehnquist handed down 
an opinion saying that the ``method of reasoning'' of the Congress was 
deficient. The dissents on that 5-to-4 opinion laid out the vast record 
which supported the legislation.
  The Supreme Court has adopted a standard of judging constitutionality 
as to whether the statute satisfies congruence and proportionality, a 
standard which has emerged very recently. It defies understanding to 
quantify or

[[Page S8801]]

figure out what congruence and proportionality means, except to give 
the Supreme Court carte blanche, in effect, to legislate.
  Two cases interpreting the Americans with Disabilities Act went 5 to 
4 in opposite directions between Titles I and II--one case holding one 
of them constitutional and the other was unconstitutional. Justice 
Scalia, dissenting in one case, characterized congruence and 
proportionality to be a flabby standard which, in effect, allowed the 
Court to legislate.
  When Chief Justice Roberts appeared before the Judiciary Committee in 
response to questions from Senator DeWine and myself, he said it was up 
to the Congress to make findings of fact, that that was a peculiarly 
legislative function because it is the Congress which has the hearings, 
the ability to develop facts, and it is congressional responsibility.
  Yet when the Voting Rights Act case was heard earlier this year, 
although decided on narrower grounds, every indication is being given 
that Chief Justice Roberts' assurances to the Judiciary Committee are 
being reversed and that the Court, from all indicators, is on the verge 
of declaring the Voting Rights Act as unconstitutional, notwithstanding 
the voluminous record which was created and the great care the Senate 
operated to come down with the voting rights legislation.
  So when you have a criticism of the problem of judicial legislation, 
it is my view that you ought to look at what Judge Sotomayor has done 
in 17 years on the bench. And there is no indication at all of her 
substituting her values. But when you come to the Supreme Court of the 
United States, there is good reason to question what they are doing.
  There is, simply stated, a lack of understanding as to what goes on 
in the Court.
  The one comment I do have, other than full support for Judge 
Sotomayor, was her reluctance to answer questions. One question which I 
asked her is illustrative. Chief Justice Roberts, in his confirmation 
hearing, when confronted with the light workload of the Court, said 
that he thought the Court could take on more responsibility. I asked 
Judge Sotomayor if she agreed with that conclusion. Judge Sotomayor 
would not answer the question. She said she would have to be more fully 
familiarized, even though the statistics which I quoted to her about 
the Court's workload contrasted with 1886 when the Supreme Court 
decided 451 cases; in 1985, there were only 161 written opinions; in 
2007, only 67 written opinions.
  It seemed to me plain that the Court could undertake more work, as 
Chief Justice Roberts had agreed, during his confirmation hearings. But 
there has developed an attitude among nominees who appear before the 
Judiciary Committee that it is unsafe to answer questions because of 
what happened to Judge Bork.
  As I have pointed out in committee, and it is worth repeating, it is 
a myth that Judge Bork was defeated because he answered too many 
questions. In the context of his writings and in the context of his 
record where he advocated original intent, it was necessary for Judge 
Bork to speak up. Judge Bork was rejected because he had a view of the 
Constitution which was totally outside the constitutional continuum or 
outside the constitutional mainstream.
  For example, in his testimony, he said that the equal protection 
clause applied only to race and ethnicity, but would not be extended to 
women, aliens, indigents, illegitimates, or others, in line with the 
decisions of the Supreme Court of solid precedents on the application 
of the equal protection clause. Judge Bork disagreed with the clear and 
present danger standard, established as far back as Justice Oliver 
Wendell Holmes.

  When it came to his doctrine on original intent, he was at a loss to 
explain how you could desegregate the District of Columbia schools. On 
the same day that Brown v. Board of Education was decided, there was a 
companion case captioned Bolling v. Sharpe applicable to the District 
of Columbia. Judge Bork was of the view that there was no application 
of the due process clause; that you couldn't incorporate any of the 10 
amendments and you couldn't incorporate the equal protection clause. 
But the Supreme Court desegregated the DC schools on the basis of 
holding that the equal protection clause was part of due process and 
due process did apply to the District of Columbia. Judge Bork was at a 
loss to answer that.
  Mr. President, I ask unanimous consent to have printed in the Record 
a copy of an op-ed I wrote for the New York Times, dated October 9, 
1987, which sets forth in some greater detail--which I do not have the 
time to go into now--the reasons why I voted against Judge Bork and I 
think the reasons why Judge Bork's nomination was defeated by the 
margin of 58 to 42 when it came before the Senate for a vote.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Oct. 9, 1987]

                        Why I Voted Against Bork

                           (By Arlen Specter)

       From the day in mid-July when Judge Robert H. Bork stopped 
     by for a courtesy call until I telephoned him last week to 
     say I would oppose his nomination, my goal was to figure out 
     what impact Judge Bork would have on the people who came to 
     the Supreme Court in search of their constitutional rights. 
     At the end, having come to like and respect Judge Bork, I 
     reluctantly decided to vote against him, because I had 
     substantial doubts about what he would do with fundamental 
     minority rights, about equal protection of the law and 
     freedom of speech.
       From the beginning, it was evident that this nomination 
     process would be different from most. The traditional 
     courtesy call turned out to be much more because Judge Bork 
     was willing--really anxious--to discuss his judicial 
     philosophy. Unlike other nominees who had barely given name, 
     rank and serial number, he enjoyed the exchange and doubtless 
     figured that his extensive writings were so unusual that he 
     would have to talk if he were to have any chance at 
     confirmation.
       Our first hour and a half meeting was interrupted by a 
     Senate vote, so he returned a few weeks later for a similar 
     session. In those discussions, I found a man of intellect and 
     charm, who said, in essence, that his writings were academic 
     and professorial and not necessarily indicative of what he 
     would do on the Court.
       During the August recess, when I had a chance to read many 
     of his approximately 80 speeches, 30 law review articles and 
     145 circuit court opinions, I found a scholar and jurist 
     whose views and opinions were vast and complex. In voting to 
     confirm Chief Justice William H. Rehnquist and Justice 
     Antonin Scalia last year, I had already decided that a 
     nominee's judicial philosophy need not agree with mine. But I 
     also believed that a nominee's views should be within the 
     tradition of our constitutional jurisprudence. With that in 
     mind, I compared Judge Bork's views with those of other 
     conservative justices.
       On freedom of speech, I was surprised to find that Judge 
     Bork in his writings rejected Justice Oliver Wendell Holmes's 
     standard of a ``clear and present danger,'' Chief Justice 
     Warren Burger's notion of constitutional protection for 
     commercial speech and Justice (now Chief Justice) Rehnquist's 
     Court opinion protecting a sexually explicit (as 
     distinguished from an obscene) movie from censorship.
       In Judge Bork's earliest views, only political speech was 
     to be protected. He later modified that to include literature 
     and art that involved political discussion. In the 
     confirmation hearings, I was even more surprised to find him 
     change his position and commit himself to apply the Holmes 
     test even though he continued his strong philosophical 
     disagreement.
       Judge Bork's views on equal protection of the law also 
     underwent a major change at the hearings. He committed 
     himself to apply current case law after having long insisted 
     that equal protection applied only to race and, more 
     recently, to ethnicity. His narrow position had put him at 
     odds with Chief Justice Rehnquist and Justices Sandra Day 
     O'Connor and Scalia, as well as 101 years of Supreme Court 
     decisions that had applied equal protection to women, aliens, 
     indigents, illegitimates and others.
       These significant shifts raised questions about Judge 
     Bork's motives and the depth of his convictions. But I felt 
     he should have a full opportunity to explain his new 
     positions because a person is entitled to change.
       During a long Saturday session, I had an unusual 
     opportunity to explore at length some troubling aspects of 
     Judge Bork's jurisprudence. I was particularly concerned with 
     his writings on ''original intent.'' He had maintained that 
     judges had to base their opinions on the Framers' original 
     intentions. Without adherence to original intent, he said, 
     there was no legitimacy for judicial decisions. And without 
     such legitimacy, there could be no judicial review.
       But Judge Bork conceded during the hearings that original 
     intent was often difficult, perhaps impossible, to discern. I 
     feared that this approach could jeopardize the fundamental 
     principle of constitutional law--the supremacy of judicial 
     review. Although Judge Bork himself never went so far, some 
     prominent political figures have suggested that the Supreme 
     Court should not be the ultimate arbiter of 
     constitutionality. Their

[[Page S8802]]

     cause--with which I deeply disagree--could be aided by a 
     Justice who questioned the legitimacy of judicial review.
       I had also been concerned by Judge Bork's insistence on 
     ``Madisonian majoritarianism,'' the idea that, in the absence 
     of explicit constitutional limits, legislatures should be 
     free to act as they please. Conservative justices had 
     traditionally protected individual and minority rights even 
     without a specifically enumerated right or proof of original 
     intent where there were fundamental values rooted in the 
     tradition of our people.
       Just this year, for example, Chief Justice Rehnquist and 
     Justices O'Connor and Scalia had found a right in the 
     Constitution for a prisoner to marry. But Judge Bork, at his 
     confirmation hearing, could still find no acceptable 
     rationale for the decision desegregating the District of 
     Columbia schools 33 years ago.
       I was further troubled by his writings and testimony that 
     expanding rights to minorities reduced the rights of 
     majorities. While perhaps arithmetically sound, it seemed 
     morally wrong. The majority in a democracy can take care of 
     itself, while individuals and minorities often cannot. 
     Moreover, our history has demonstrated that the majority 
     benefits when equality helps minorities become a part of the 
     majority.
       Despite these concerns, I was genuinely undecided--perhaps 
     leaning a little toward Judge Bork--when he finished his 
     impressive testimony at the end of the first week. He had 
     conceded that there was a ``powerful argument from a strong 
     tradition'' to find rights rooted in the conscience of the 
     people, although not specified in the Constitution. He had 
     also yielded to the ``needs of the nation'' on some 
     constitutional matters that did not fall within the Framers' 
     original intent. Perhaps his writings were only professorial 
     theorizing.
       As I listened to the other witnesses during the second and 
     third weeks, and considered the implications of Judge Bork's 
     total approach, my doubts grew about the application of his 
     changed positions. For example, in Judge Bork's former view, 
     which he last expressed 20 days before his nomination, equal 
     protection should have been kept to concerns like race and 
     ethnicity. Considering the many subtle and discretionary 
     judgments involved, I felt it would be unfair to people who 
     sought equal protection in the Supreme Court to have their 
     cases decided by someone who had so long thought their claims 
     unprotected by the Constitution under standards that were so 
     elusive to apply.
       Similarly, the hearings showed the great difficulty, if not 
     impossibility, of Judge Bork's applying the ``clear and 
     present danger'' standard to free speech cases. If there was 
     a critical turning point, it was Judge Bork's responses 
     regarding two cases.
       The ``clear and present danger'' standard was restated by 
     the Court in 1969, in Brandenburg v. Ohio, and again in 1973, 
     in Hess v. Indiana. When Judge Bork committed himself to 
     accepting Brandenburg, I pressed as to how we could be 
     confident that he would apply that test to the next case, 
     which obviously would be different on the facts. He promised 
     he would, but then promptly insisted that he was not 
     committed to Hess because it was an ``obscenity'' case.
       Judge Bork's disagreement on Hess, a ``clear and present 
     danger'' case, cast substantial doubt on his ability to apply 
     cases he philosophically opposed and had long decried.
       The hearings brought a record 140,000 calls and letters to 
     my office. Wherever I went, it seemed that everyone had a 
     strong opinion. The pressure was pervasive. On the afternoon 
     the hearings ended, I talked again with Judge Bork for more 
     than an hour, and met later that evening with Lloyd Cutler, 
     the former adviser to Jimmy Carter, who had been a principal 
     supporter. My substantial doubts persisted, so I decided to 
     vote no.

  Mr. SPECTER. Moving on to another subject, which perhaps is of the 
greatest importance of what we see emerging from these hearings and the 
confirmation proceeding, is an emerging standard on rejecting the 
traditional deference to the President, with Senators substituting 
their own ideology in order to make the decision.
  In the article I referred to on Bork, in the op-ed piece, I noted 
that in voting as to Chief Justice Rehnquist and Justice Scalia, I 
decided the judicial philosophy of a nominee need not agree with mine. 
When the hearings came up as to Justice Clarence Thomas, I made the 
observation that there might be an occasion, one day, when there would 
be a partnership between the Senate and the President with respect to 
looking at ideology. It has become accepted that elections do matter 
when the President moves to the nominating process. They are active 
parts in the Presidential campaigns, and the tradition has been to make 
the deference to the President's ideology.
  I suggest we are seeing, in the confirmation process of Judge 
Sotomayor, in conjunction with the nomination process of Justice Alito, 
that there is a shift in that standard and that judgment. The issue was 
framed by the comments of then-Senator Barack Obama now President 
Barack Obama when he was commenting about his judgment on the Alito 
nomination and then Senator Obama had this to say:

       There are some who believe that the President, having won 
     an election, should have complete authority to appoint his 
     nominee and the Senate should only examine whether the 
     Justice is intellectually capable.

  Senator Obama went on to say:

       I disagree with this view. I believe it calls for 
     meaningful advice and consent, and that includes an 
     examination of the judge's philosophy, ideology.

  In the Alito hearings, there is no doubt that in terms of academic, 
professional, and judicial competence, Justice Alito was well 
qualified--a Yale law graduate with a distinguished career in private 
practice, serving as a U.S. attorney for New Jersey, with 15 years on 
the circuit court. Some concerns were expressed as to his ideology on 
his view of a woman's right to choose; his dissenting opinion in 
Planned Parenthood v. Casey in the Third Circuit. Only four Democrats 
crossed the aisle to vote for Justice Alito. Today, according to the 
announcements that have been made, about that many Republicans are 
going to cross the aisle to vote for Judge Sotomayor.
  Some of those who have announced their intention to vote against 
Judge Sotomayor have long records for not having opposed any judicial 
nominee. It is a complex issue. There is a question of pressure from 
the far right, from those who might be looking at primary opposition. 
There is a question of partisanship, which has gripped this body with 
such intensity. But there is an overwhelming view that the approach of 
Judge Sotomayor and what she is likely to do on the Supreme Court is 
something which is contrary to their views as to when the matters ought 
to be decided.
  It has long been accepted that you can't ask a Supreme Court nominee 
how he or she will decide a specific case, but there is an opportunity 
to glean from many factors the disposition or inclination of the 
nominees. And although many in this body had, for a long time, as I 
view it, made decisions based upon their own ideology, contrasted to 
what they accepted the nominee to do on the Court, I think that view 
has become crystallized and, as articulated by then-Senator Obama, is a 
view which has perhaps added weight now that it is President Obama.
  Certainly, there are nominees whom I have voted for, if I were to 
have been the President and made the selection, it would have been 
different. If I were to have applied my own philosophy or ideology on 
the vote to confirm or not, it would have been different. When Judge 
Bork was so far out of the mainstream and had views so totally 
antithetical to the continuum of constitutional law--being out of the 
mainstream--it was different. But I think it is worth noting what is 
happening to the confirmation process, as Senators are moving to 
utilize their own ideology in deciding how to vote--illustrated, as I 
say, by Alito and the confirmation which we currently have--and not 
giving the traditional and customary deference to the President.
  Moving on to the subject of the Court's reduced workload and the 
failure to decide major cases, in the context of the statistics which I 
cited--451 cases decided in 1886, 161 written opinions in 1985; the 
year 2007, only 67 signed opinions; the Supreme Court having decided 
not to hear the case involving the terrorist surveillance program, 
which posed a dramatic conflict between congressional authority under 
article I to enact the Foreign Intelligence Surveillance Act, with the 
President's asserted authority under article II as Commander in Chief 
to have warrantless wiretaps; the district court in Detroit declared 
the terrorist surveillance program unconstitutional. The Sixth Circuit 
reversed 2 to 1 on the grounds of standing--with the dissent being much 
better reasoned--a doctrine to avoid deciding the case and the Supreme 
Court denying cert. Similarly, on the conflict which was posed by 
litigation brought by the survivors of victims of 9/11 against Saudi 
Arabian princes, where the Congress had legislated in the Foreign 
Sovereign Immunities Act to exclude torts, as when you fly an airplane 
into the World Trade Center, the executive branch intervened. The 
Department of State objected through the Solicitor General to

[[Page S8803]]

the court hearing the case, and that case was not decided. Many circuit 
splits, which are detailed in a series of letters which I am going to 
ask to be admitted into the Record, letters which I sent to Judge 
Sotomayor, dated July 7, June 15, and June 25, detailing a great many 
circuit splits which the Court has not decided.
  Mr. President, I ask to have printed in the Record the letters I 
referred to.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                     Washington, DC, July 7, 2009.
     Hon. Sonia Sotomayor,
     c/o The Department of Justice,
     Washington, DC.
       Dear Judge Sotomayor: As noted in my letters of June 15 and 
     June 25, I am writing to alert you to subjects which I intend 
     to cover at your hearing. During our courtesy meeting you 
     noted your appreciation of this advance notice. This is the 
     third and final letter in this series.
       The decisions by the Supreme Court not to hear cases may be 
     more important than the decisions actually deciding cases. 
     There are certainly more of them. They are hidden in single 
     sentence denials with no indication of what they involve or 
     why they are rejected. In some high profile cases, it is 
     apparent that there is good reason to challenge the Court's 
     refusal to decide.
       The rejection of significant cases occurs at the same time 
     the Court's caseload has dramatically decreased, the number 
     of law clerks has quadrupled, and justices are observed 
     lecturing around the world during the traditional three-month 
     break from the end of June until the first Monday in October 
     while other Federal employees work 11 months a year.
       During his Senate confirmation hearing, Chief Justice John 
     G. Roberts, Jr., said the Court ``could contribute more to 
     the clarity and uniformity of the law by taking more cases.'' 
     The number of cases decided by the Supreme Court in the 19th 
     century shows the capacity of the nine Justices to decide 
     more cases. According to Professor Edward A. Hartnett: ``. . 
     . in 1870, the Court had 636 cases on its docket and decided 
     280; in 1880, the Court had 1,202 cases on its docket and 
     decided 365; and in 1886, the Court had 1,396 cases on its 
     docket and decided 451.'' The downward trend of decided case 
     is noteworthy since 1985 and has continued under Chief 
     Justice Roberts' leadership. The number of signed opinions 
     decreased from 161 in the 1985 term to 67 in the 2007 term.
       It has been reported that seven of the nine justices, 
     excluding Justices Stevens and Alito, assign their clerks to 
     what is called a ``cert. pool'' to review the thousands of 
     petitions for certiorari. The clerk then writes and 
     circulates a summary of the case and its issues suggesting 
     justices' reading of cert. petitions is, at most, limited.
       At a time of this declining caseload, the Supreme Court has 
     left undecided circuit court splits of authority on many 
     important cases such as:
       (1) The necessity for an agency head to personally assert 
     the deliberative process privilege;
       (2) Mandatory minimums for use of a gun in drug 
     trafficking;
       (3) Equitable tolling of the Federal Tort Claims Act's 
     statute of limitations period;
       (4) The standard for deciding whether a Chapter 11 
     bankruptcy may benefit from executory contracts;
       (5) Construing the honest services provisions of fraud law; 
     and
       (6) The propriety of a jury consulting the Bible during 
     deliberations.
       One procedural change for the Court to take more of these 
     cases would be to lower the number of justices required for 
     cert. from four to three or perhaps even to two.
       Of perhaps greater significance are the high-profile, major 
     constitutional issues which the court refuses to decide 
     involving executive authority, congressional authority and 
     civil rights. A noteworthy denial of cert. occurred in the 
     Court's refusal to decide the constitutionality of the 
     Terrorist Surveillance Program which brought into sharp 
     conflict Congress' authority under Article I to establish the 
     exclusive basis for wiretaps under the Foreign Intelligence 
     Surveillance Act with the President's authority under Article 
     II as Commander in Chief to order warrantless wiretaps.
       That program operated secretly from shortly after 9/11 
     until a New York Times article in December 2005. In August 
     2006, the United States District Court for the Eastern 
     District of Michigan found the program unconstitutional. In 
     July 2007, the Sixth Circuit reversed 2-1, finding lack of 
     standing. The Supreme Court then denied certiorari.
       The dissenting opinion in the Sixth Circuit demonstrated 
     the flexibility of the standing requirement to provide the 
     basis for a decision on the merits. Judge Gilman noted, ``the 
     attorney-plaintiffs in the present case allege that the 
     government is listening in on private person-to-person 
     communications that are not open to the public. These are 
     communications that any reasonable person would understand to 
     be private. After analyzing the standing inquiry under a 
     recent Supreme Court decision, Judge Gilman would have held 
     that, ``[t]he attorney-plaintiffs have thus identified 
     concrete harms to themselves flowing from their reasonable 
     fear that the TSP will intercept privileged communications 
     between themselves and their clients. On a matter of such 
     importance, the Supreme Court could at least have granted 
     certiorari and decided that standing was a legitimate basis 
     on which to reject the decision on the merits.
       On June 29, 2009, the Supreme Court refused to consider the 
     case captioned In re Terrorist Attacks on September 11, 2001, 
     in which the families of the 9/11 victims sought damages from 
     Saudi Arabian princes personally, not as government actors, 
     for financing Muslim charities knowing those funds would be 
     used to carry out Al Qaeda jihads against the United States. 
     The plaintiffs sought an exception to the sovereign immunity 
     specified in the Foreign Sovereign Immunities Act of 1976. 
     Plaintiffs' counsel had developed considerable evidence 
     showing Saudi complicity. Had the case gone forward, 
     discovery proceedings had the prospect of developing 
     additional incriminating evidence.
       My questions are:
       (1) Do you agree with the testimony of Chief Justice 
     Roberts at his confirmation hearing that the Court ``could 
     contribute more to clarity and uniformity of the law by 
     taking more cases?''
       (2) If confirmed, would you favor reducing the number of 
     justices required to grant petitions for certiorari in 
     circuit split cases from four to three or even two?
       (3) If confirmed, would you join the cert. pool or follow 
     the practice of Justices Stevens and Alito in reviewing 
     petitions for cert. with the assistance of your clerks?
       (4) Would you have voted to grant certiorari in the case 
     captioned In re Terrorist Attacks on September 11, 2001?
       (5) Would you have voted to grant certiorari in A.C.L.U. v. 
     N.S.A.--the case challenging the constitutionality of the 
     Terrorist Surveillance Program?
           Sincerely,
     Arlen Specter.
                                  ____



                                                  U.S. Senate,

                                    Washington, DC, June 15, 2009.
     Hon. Sonia Sotomayor,
     c/o The Department of Justice,
     Washington, DC.
       Dear Judge Sotomayor: When we concluded our meeting which 
     lasted more than an hour, I commented that I would be writing 
     to you on other subjects which I intended to cover at your 
     hearing, and I appreciated your response that you would 
     welcome such advance notice.
       In the confirmation hearing for Chief Justice Roberts, 
     there was considerable discussion about the adequacy of 
     congressional fact finding to support legislation. This issue 
     is again before the Supreme Court on the re-authorization of 
     the Voting Rights Act where the legislation is challenged on 
     the ground that there is an insufficient factual record. At 
     our hearing, I would like your views on what legal standards 
     you would apply in evaluating the adequacy of a Congressional 
     record. In the 1968 case Maryland v. Wirtz, Justice Harlan's 
     rationale would uphold an act of Congress where the 
     legislature had a rational basis for reaching a regulatory 
     scheme. In later cases, the Court has moved to a ``congruence 
     and proportionality standard.''.
       In advance of the hearing for Chief Justice Roberts by 
     letter dated August 8, 2005, I wrote him in part: ``members 
     of Congress are irate about the Court's denigrating and, 
     really, disrespectful statements about Congress's competence. 
     In U.S. v. Morrison, Chief Justice Rehnquist, speaking for 
     five members of the Court, rejected Congressional findings 
     because of `our method of reasoning'. As the dissent noted, 
     the Court's judgment is `dependent upon a uniquely judicial 
     competence' which implicitly criticizes a lesser quality of 
     Congressional competence.'' In Morrison, there was an 
     extensive record on evidence establishing the factual basis 
     for enactment of the Violence Against Women legislation. In 
     dissent, Justice Souter noted ``. . . the mountain of data 
     assembled by Congress here showing the effects of violence 
     against women on interstate commerce,'' and added: ``The 
     record includes reports on gender bias from task forces in 21 
     states and we have the benefit of specific factual finding in 
     eight separate reports issued by Congress and its committees 
     over the long course leading to its enactment.''
       In a subsequent letter to Chief Justice Roberts dated 
     August 23, 2005, I wrote concerning Alabama v. Garrett where 
     Title I of the Americans with Disabilities Act was based on 
     task force field hearings in every state attended by more 
     than 30,000 people including thousands who had experienced 
     discrimination with roughly 300 examples of discrimination by 
     state governments.
       Notwithstanding those findings, the Garrett Court concluded 
     in a five to four decision: ``The legislative record of the 
     Americans with Disabilities Act, however, simply fails to 
     show that Congress did in fact identify a pattern of 
     irrational state discrimination in employment against the 
     disabled.''
       In another five to four decision, the Court in Lane v. 
     Tennessee concluded Title II of the Americans with 
     Disabilities Act met the ``congruence and proportionality 
     standard''. There, Justice Scalia dissented attacking the 
     ``congruence and proportionality standard'' calling it a 
     ``flabby test'' and an ``invitation to judicial arbitrariness 
     and policy driven decision making'' adding: ``Worse still, it 
     casts this Court in the role of Congress's taskmaster. Under 
     it, the courts (and ultimately this Court) must regularly 
     check Congress's homework to make sure that it has identified 
     sufficient constitutional violations to make its remedy 
     constitutional and proportional. As a general

[[Page S8804]]

     matter, we are ill-advised to adopt or adhere to 
     constitutional rules that bring us into conflict with a 
     coequal branch of Government.''
       During the confirmation hearing of Chief Justice Roberts, 
     he testified extensively in favor of the Court's deferring to 
     Congress on fact finding. In response to questions from 
     Senator DeWine, he testified: ``. . . The reason that 
     congressional fact finding and determination is important in 
     these cases is because the courts recognize that they can't 
     do that. Courts can't have, as you said, whatever it was, the 
     13 separate hearings before passing particular legislation. 
     Courts--the Supreme Court can't sit and hear witness after 
     witness after witness in a particular area and develop that 
     kind of a record. Courts can't make the policy judgments 
     about what type of legislation is necessary in light of the 
     findings that are made'' . . . ``We simply don't have the 
     institutional expertise or the resources or the authority to 
     engage in that type of a process. So that is sort of the 
     basis for the deference to the fact finding that is made. 
     It's institutional competence. The courts don't have it. 
     Congress does. It's constitutional authority. It's not our 
     job. It is your job. So the defense to congressional findings 
     in this area has a solid basis.''
       In response to my questioning, Chief Justice Roberts said: 
     ``And I appreciate very much the differences in institutional 
     competence between the judiciary and the Congress when it 
     comes to basic questions of fact finding, development of a 
     record, and also the authority to make the policy 
     decisions about how to act on the basis of a particular 
     record. It's not just disagreement over a record. It's a 
     question of whose job it is to make a determination based 
     on the record'' . . . ``as a judge that you may be 
     beginning to transgress into the area of making a law is 
     when you are in a position of re-evaluating legislative 
     findings, because that doesn't look like a judicial 
     function.''
       The Supreme Court heard oral argument in Northwest Austin 
     Municipal Utility District v. Holder on April 29, 2009 
     involving the sufficiency of the Congressional record on 
     reauthorizing the Voting Rights Act. While too much cannot be 
     read into comments by justices at oral argument, Chief 
     Justice Roberts' statements suggested a very different 
     attitude on deference to Congressional fact finding than he 
     expressed at his confirmation hearing. Referring to the 
     argument that ``. . . action under Section 5 has to be 
     congruent and proportional to what it's trying to remedy,'' 
     Justice Roberts said that: ``. . . one-twentieth of 1 percent 
     of the submissions are not precleared. That, to me, suggests 
     that they are sweeping far more broadly than they need to, to 
     address the intentional discrimination under the Fifteenth 
     Amendment.'' Chief Justice Roberts went on to say: ``Well, 
     that's like the old--you know, it's the elephant whistle. You 
     know, I have this whistle to keep away the elephants. You 
     know, well, that's silly. Well, there are no elephants, so it 
     must work. I mean if you have 99.98 percent of these being 
     precleared, why isn't that reaching far too broadly.''
       As a factual basis for the 2007 Voting Rights Act, Congress 
     heard from dozens of witnesses over ten months in 21 
     different hearings. Applying the approach from Chief Justice 
     Roberts' continuation hearing, that would appear to satisfy 
     the ``congruence and proportionality standard''.
       My questions are:
       1. Would you apply the Justice Harlan ``rational basis'' 
     standard or the ``congruence and proportionality standard''?
       2. What are your views on Justice Scalia's characterization 
     that the ``congruence and proportionality standard'' is a 
     ``flabby test'' and ``an invitation to judicial arbitrariness 
     and policy driven decision making''?
       3. Do you agree with Chief Justice Rehnquist's conclusion 
     that the Violence Against Women legislation was 
     unconstitutional because of Congress's ``method of 
     reasoning''?
       4. Do you agree with the division of constitutional 
     authority between Congress and the Supreme Court articulated 
     by Chief Justice Roberts in his responses cited in this 
     letter to questions posed at his hearing by Senator DeWine 
     and me?
           Sincerely,
     Arlen Specter.
                                  ____

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                     Washington, DC, June 25, 2009
     Hon. Sonia Sotomayor,
     c/o The Department of Justice,
     Washington, DC.
       Dear Judge Sotomayor: As noted in my letter to you dated 
     June 15, 2009, I am writing to alert you to another subject 
     which I intend to cover at your hearing. I appreciate your 
     comment at our meeting that you welcome such advance notice.
       In an electronic era where the public obtains much, if not 
     most, of its news and information from television, there is a 
     strong case in my judgment that the Supreme Court of the 
     United States should have its public proceedings televised 
     just as the United States House of Representatives and United 
     States Senate are televised.
       It is well established that the Constitution guarantees 
     access to judicial proceedings to the press and the public. 
     In 1980, the Supreme Court relied on this tradition when it 
     held in Richmond Newspapers, Inc. v. Virginia, that the right 
     of a public trial belongs not just to the accused but to the 
     public and the press as well. The Court noted that such 
     openness has ``long been recognized as an indisputable 
     attribute of an Anglo-American trial.''
       The value of transparency was cogently expressed by Chief 
     Justice William Howard Taft who said: ``Nothing tends more to 
     render judges careful in their decision and anxiously 
     solicitous to do exact justice than the consciousness that 
     every act of theirs is subject to the intelligent scrutiny of 
     their fellow men and to candid criticism.''
       In the same vein, Justice Felix Frankfurter said: ``If the 
     news media would cover the Supreme Court as thoroughly as it 
     did the World Series, it would be very important since 
     `public confidence in the judiciary hinges on the public 
     perception of it'.''
       To give modern-day meaning, the term ``press'' used in 
     Richmond Newspapers would include television. Certainly 
     Justice Frankfurter's use of the term ``media'' would include 
     television in today's world. Televising the Supreme Court's 
     public proceedings would provide the ``scrutiny'' sought by 
     Chief Justice Taft.
       Justices of the Supreme Court have been frequently 
     televised, including Chief Justice Roberts and Justice 
     Stevens appearance on ``Prime Time'' ABC TV, Justice Ruth 
     Bader Ginsburg's interview on CBS by Mike Wallace, Justice 
     Breyer's participation in Fox News Sunday and the debate 
     between Justice Scalia and Justice Breyer filmed and 
     available for viewing on the web.
       Many of the justices have commented favorably on televising 
     the Court. Justice Stevens, in an article by Henry Weinstein 
     on July 14, 1989 said he supported cameras in the Supreme 
     Court and told the annual Ninth Circuit Judicial Conference 
     at about the same time that, ``In my view, it is worth a 
     try.'' During Justice Breyer's confirmation hearing in 1994, 
     he indicated support for televising Supreme Court 
     proceedings. He has since equivocated, but noted that it 
     would be a wonderful teasing device.
       In December 2000, Marjorie Cohn's article noted Justice 
     Ruth Bader Ginsburg's support of camera coverage so long at 
     it was gavel to gavel. Justice Alito in his Senate 
     confirmation hearing said that as a member of the Third 
     Circuit Court of Appeals he voted to admit cameras; but added 
     that it would be presumptive of him to take a final position 
     before he had consulted with his colleagues, if confirmed, 
     promising to keep an open mind. Justice Kennedy, according to 
     a September 10, 1990 article by James Rubin, told a group of 
     visiting high school students that cameras in the Court were 
     ``inevitable.'' He has since equivocated, stating that if any 
     of his colleagues raise serious objections, he would be 
     reluctant to see the Court televised. Chief Justice Roberts 
     said in his confirmation hearing that he would keep an open 
     mind on the subject.
       Recognizing the sensitivity of justices to favor televising 
     the Court in the face of a colleague's objection, there may 
     be a new perspective with Justice Souter's retirement since 
     he expressed the most vociferous opposition: ``I can tell you 
     the day you see a camera come into our courtroom, it is going 
     to roll over my dead body.''
       In the 109th and 110th Congresses, with several bipartisan 
     co-sponsors, I introduced legislation providing for 
     televising public Supreme Court proceedings. Both bills were 
     reported favorably out of the Judiciary Committee, but were 
     never taken up by the full Senate. Sensitive to separation of 
     powers and recognizing the authority of the Supreme Court to 
     invalidate any such legislation, it should be noted that 
     there are analogous directives from Congress to the Court on 
     procedural/administrative matters such as setting the first 
     Monday of October as the beginning of the Court's term, 
     requiring six sitting justices to form a quorum and 
     establishing nine as the number of Supreme Court justices. In 
     May 2007, Associate Professor Bruce Peabody of the Political 
     Science Department of Fairleigh Dickinson wrote an article in 
     the Journal on Legislation concluding the proposed 
     legislation was constitutional.
       There is obviously enormous public interest in Supreme 
     Court proceedings. When the case of Bush v. Gore was argued, 
     streets around the Supreme Court building were filled with 
     television trucks, although no camera was admitted inside the 
     chamber. Shortly before the argument, Senator Biden and I 
     wrote to Chief Justice Rehnquist urging that the proceedings 
     be televised and received a prompt reply in the negative; but 
     the Supreme Court did break recede by releasing an audiotape 
     when the proceedings were over and the Court has since 
     intermittently made audiotapes available. Such audiotapes are 
     obviously no substitute for television, but are a step in the 
     right direction.
       The keen public interest is obvious since the Supreme Court 
     decides the cutting-edge questions of the day such as: who 
     will become president; congressional power; executive power; 
     defendants' rights--habeas corpus--Guantanamo; civil rights--
     voting rights--affirmative action; abortion.
       In 1990, the Federal Judicial Conference authorized a 
     three-year pilot program allowing television coverage of 
     civil proceedings in six federal district courts and two 
     federal circuit courts. The program began in July 1991 and 
     ran through December 31, 1994. The Federal Judicial Center 
     monitored the program and issued a positive final evaluation. 
     The Judicial Center concluded: ``Overall attitudes of judges 
     toward electronic media coverage of civil proceedings were 
     initially neutral and became more favorable after experience

[[Page S8805]]

     under the pilot program.'' The Judicial Center also said: 
     ``Judges and attorneys who had experience with electronic 
     media coverage under the program generally reported observing 
     small or no effects of camera presence on participants in the 
     proceedings, courtroom decorum, or the administration of 
     justice.''
       I am especially interested in your experience when a trial 
     was televised in your courtroom under the pilot program.
       My questions are: (1) Do you agree with Justice Stevens 
     that televising the Supreme Court is ``worth a try''? (2) Do 
     you agree with Justice Breyer that televising judicial 
     proceedings would be a wonderful teaching device? (3) Do you 
     believe, as expressed by Justice Kennedy, that televising the 
     Supreme Court is ``inevitable''? (4) What effect, if any, did 
     televising the trial in your Court have on the lawyers, 
     witnesses, jurors and you? (5) Do you think that televising 
     the trial in your Court was useful to inform the public on 
     the way the judicial system operates?
           Sincerely,
                                                    Arlen Specter.

  Mr. SPECTER. Mr. President, when the Federalist Papers were written, 
the authors said that the Supreme Court was the least dangerous branch. 
I think if the Framers had seen the status of events in the year 2009, 
they might have written that the Supreme Court, the Supreme Court 
especially, was the least accountable branch--the least transparent 
branch.
  For many years, I have urged that the Supreme Court be televised. 
Legislation which I have introduced has twice been voted out of 
committee, and it is pending again. I think this is an especially good 
time to take up the issue. The Congress has the authority to establish 
when the Supreme Court sits--the first Monday in October; what it takes 
to have a quorum; how many members there will be on the Court--contrast 
that to what President Roosevelt tried to do to expand the number to 
15. We have authority on the timetable, under the Speedy Trial Act, to 
set time limits on habeas corpus, and it is my legal judgment that we 
have the authority to call on the Supreme Court to be televised.
  The Supreme Court has the final word on that subject, as they do on 
all others, and could invalidate legislation on the grounds of 
separation of power. But in light of what is happening and the demand 
for greater transparency, the televising of the House, the televising 
of the Senate; the fact that recently the highest court in Great 
Britain has admitted television cameras, it is time that should occur.
  With the departure of Justice Souter, assuming the confirmation of 
Judge Sotomayor, the major opponent to televising the Court will no 
longer be there. Justice Souter made the famous statement that the 
television cameras would roll in over his dead body. When the nominees 
have been questioned repeatedly, they have always been very concerned, 
almost to a person, about being solicitous of the views of others. I 
concede that Justice Souter's strong views might have been a 
considerable obstacle. Justice Stevens has said it is worth a try. 
Justice Ginsburg said it would be fine if it were gavel to gavel. Other 
Justices have been televised. It is worth noting that the Federal 
Judicial Conference authorized a 3-year pilot program for six Federal 
district courts and two Federal circuit courts of appeals. The Judicial 
Center concluded:

       Overall, attitudes of judges toward electronic media 
     coverage of civil proceedings were initially neutral and 
     became more favorable after experience under the pilot 
     program. Judges and attorneys who had experience with 
     electronic media coverage under the program generally 
     reported observing small or no effects of camera presence or 
     participants in the proceedings, courtroom decorum, or the 
     administration of justice.

  It is my suggestion it would be very healthy for our country to have 
a little sunshine come into the Supreme Court.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SPECTER. I ask unanimous consent for 2 additional minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. I think it would be very beneficial to have a little 
sunlight to come into the Supreme Court so there could be a public 
understanding as to how far the Supreme Court is going now on judicial 
legislation--that they are going beyond constitutional rights, that 
they are reaching into statutes such as the statute protecting women 
against violence, to declare it unconstitutional notwithstanding a 
voluminous record but based on the method of reasoning of Congress, as 
if our method of reasoning was deficient to theirs; or on the standard 
of congruence and proportionality, which is simply not understandable; 
or in the context of a workload which defies explanation, with so many 
circuit splits going undecided.
  It may surprise people to know that it was not until 1981 that the 
Judiciary Committee proceedings on nominations were televised. Seeing 
what a great appearance it is today, and of how much value--this is 
really our only opportunity to speak to the Court, to speak to Chief 
Justice Roberts. Are you going back on your commitment that it is up to 
the Congress to decide facts on a congressional record? Why are you 
doing congruence and proportionality when no one understands it?
  So while the judgment on Sonia Sotomayor, as I said initially, was 
easy for me to vote aye, there are many more perplexing issues that 
have emerged, especially what I perceive to be an institutional change 
here, with Senators substituting their own judgments and ideology for 
the traditional deference allotted to the President.
  Before I yield the floor, Mr. President, I have been asked to read an 
addendum statement, if I may? It is an introduction for a letter from 
members of the Supreme Court bar in favor of Judge Sotomayor:

       The Committee recently received a letter of support for 
     Judge Sotomayor's nomination from over 45 regular 
     practitioners at the Supreme Court including a number of 
     former Solicitors General and Assistants to the Solicitor 
     General. Among those who joined this letter are a number of 
     highly respected Republican appointees such as Charles Fried, 
     nominated by President Reagan to be Solicitor General; John 
     Gibbons, the former Chief Judge for the Third Circuit Court 
     of Appeals who was nominated by President Nixon; and Tim 
     Lewis, nominated by President George H.W. Bush and confirmed 
     as a Judge for the Third Circuit Court of Appeals.

  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 follows:

     Hon. Patrick J. Leahy,
     Chairman, U.S. Senate Committee on the Judiciary, Russell 
         Senate Office Building, Washington, DC.
     Hon. Jefferson B. Sessions,
     Ranking Member, U.S. Senate Committee on the Judiciary, 
         Russell Senate Office Building, Washington, DC.
       Dear Chairman Leahy and Ranking Member Sessions: As members 
     of the Supreme Court Bar including those of us who have had 
     the honor to represent the United States in the Court, as 
     Solicitor General or members of the Solicitor General's 
     professional staff--we respectfully support confirmation of 
     Judge Sonia Sotomayor as an Associate Justice of the United 
     States Supreme Court.
       Judge Sotomayor would bring to the Court an impressive 
     background in the law. As an Assistant District Attorney in 
     New York for five years, she earned a reputation as a focused 
     prosecutor. In her seventeen years as a federal judge, she 
     demonstrated impartiality, clear thinking, and careful 
     attention to the facts and issues before her. Her legal 
     rulings are typically tailored to the facts and are 
     respectful of precedent and the rule of law. Throughout her 
     legal career, Judge Sotomayor has distinguished herself.
       Judge Sotomayor's strong legal background and impressive 
     career make her an extremely well-qualified nominee for the 
     Supreme Court. We urge her speedy confirmation.
           Sincerely,
       Donald B. Ayer, Jones Day LLP; Deputy Attorney General, 
     1989-90; Principal Deputy Solicitor General, 1986-88.
       Timothy S. Bishop, Mayer Brown LLP.
       Richard P. Bress, Latham & Watkins LLP; Assistant to the 
     Solicitor General, 1994-1997.
       Louis R. Cohen, WilmerHale LLP; Deputy Solicitor General, 
     1986-88.
       Drew S. Days III, Yale Law School; Solicitor General, 1993-
     96.
       Walter Dellinger, O'Melveny & Myers LLP; Acting Solicitor 
     General, 1996-97.
       Samuel Estreicher, NYU School of Law; Jones Day LLP.
       Bartow Farr, Farr & Taranto; Assistant to the Solicitor 
     General, 1976-1978.
       Meir Feder, Jones Day LLP.
       Jonathan S. Franklin, Fulbright & Jaworski LLP.
       David C. Frederick, Kellogg, Huber, Hansen, Todd, Evans & 
     Figel, PLLC; Assistant to the Solicitor General, 1996-2001.
       Andrew L. Frey, Mayer Brown LLP; Deputy Solicitor General, 
     1973-1986.
       Charles Fried, Harvard Law School; Solicitor General, 1985-
     1989.
       Kenneth S. Geller, Mayer Brown LLP; Deputy Solicitor 
     General, 1979-1986.
       John J. Gibbons, Gibbons PC; former Chief Judge, U.S. Court 
     of Appeals for the Third Circuit.
       Jamie S. Gorelick, WilmerHale LLP; Deputy Attorney General.
       Jeffrey T. Green, Sidley Austin LLP.

[[Page S8806]]

       Caitlin J. Halligan, Weil, Gotshal & Manges LLP; New York 
     Solicitor General, 2001-2007.
       Pamela Harris, Georgetown University Law Center.
       George W. Jones, Jr., Sidley Austin LLP; Assistant to the 
     Solicitor General, 1980-1983.
       Pamela S. Karlan, Stanford Law School.
       Michael K. Kellogg, Kellogg, Huber, Hansen, Todd, Evans & 
     Figel, PLLC; Assistant to the Solicitor General, 1987-1989.
       Douglas W. Kmiec, Pepperdine Law School.
       Jeffrey A. Lamken, Baker Botts LLP; Assistant to the 
     Solicitor General, 1997-2004.
       Timothy K. Lewis, Schnader Harrison Segal & Lewis LLP; 
     Judge, U.S. Court of Appeals for the Third Circuit, 1992-
     1999.
       Rory K. Little, U.C. Hastings College of Law.
       Robert A. Long, Covington & Burling LLP; Assistant to the 
     Solicitor General, 1990-1993.
       Deanne E. Maynard, Morrison & Foerster LLP; Assistant to 
     the Solicitor General, 2004-2009.
       Patricia Millett, Akin Gump Strauss Hauer & Feld, LLP; 
     Assistant to the Solicitor General, 1996-2007.
       Randolph D. Moss, WilmerHale LLP.
       Carter G. Phillips, Sidley Austin LLP; Assistant to the 
     Solicitor General, 1981-1984.
       Andrew J. Pincus, Mayer Brown LLP; Assistant to the 
     Solicitor General, 1984-1988.
       E. Joshua Rosenkranz, Orrick, Herrington & Sutcliffe LLP.
       Charles A. Rothfeld, Mayer Brown LLP; Assistant to the 
     Solicitor General, 1984-1988.
       Gene C. Schaerr, Winston & Strawn LLP.
       Joshua Schwartz, George Washington University Law School; 
     Assistant to the Solicitor General, 1981-1985.
       Virginia A. Seitz, Sidley Austin LLP.
       Stephen M. Shapiro, Mayer Brown LLP; Deputy Solicitor 
     General, 1981-1983.
       Paul M. Smith, Jenner & Block LLP.
       Jerold S. Solovy, Jenner & Block LLP.
       Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver & 
     Hedges LLP & Stanford Law School.
       Richard Taranto, Farr & Taranto; Assistant to the Solicitor 
     General, 1986-1989.
       Laurence H. Tribe, Harvard Law School.
       Alan Untereiner, Robbins, Russell, Englert, Orseck, 
     Untereiner & Sauber LLP.
       Seth P. Waxman, WilmerHale LLP; Solicitor General, 1997-
     2001.
       Christopher J. Wright, Wiltshire & Grannis LLP; Assistant 
     to the Solicitor General, 1984-1994.

  The PRESIDING OFFICER (Mr. Merkley). The Senator from New Jersey is 
recognized.
  Mr. LAUTENBERG. Mr. President, today is an auspicious day. I have had 
25 years of service now to the Senate. This is one of those moments 
when what we do will be recorded in history forever--the opportunity to 
nominate a distinguished jurist to the highest juridical post in this 
country.
  I rise to express my strong support for President Obama's nomination 
of a distinguished jurist, Sonia Sotomayor, to become a Supreme Court 
Justice of the United States, confirming the continuity of our duty to 
the Constitution and to fairness to all the people in our country, and 
that obedience to the law continues uninterrupted.
  In Newark, NJ, there exists a venerated courthouse that bears my 
name. On the entrance to this courthouse there is an inscription that 
says:

       The true measure of a democracy is its dispensation of 
     justice.

  That summarizes my feeling about our beloved country. I authored that 
quote after considerable thought, and I truly believe it reflects a 
principal value upon which our Nation was founded. We must scrupulously 
insist that these values endure throughout our government and our legal 
system and particularly in our Nation's highest Court.
  Based on her history, my meeting with Judge Sotomayor, and her 
testimony before the Senate Judiciary Committee, I have no doubt that 
if confirmed, Judge Sotomayor will pursue the fair, wise, and unbiased 
dispensation of justice. That is why I believe we must confirm Judge 
Sotomayor's appointment without delay.
  When I had a private meeting with her, she confirmed her unwavering 
commitment to the equity of our American justice system, her knowledge 
of the law, and her recognition of the enormous responsibility she has 
to fulfill to our country.
  I conveyed to her the excitement we are hearing in my State of New 
Jersey that President Obama's nominee grew up in a poor urban 
environment, in the Bronx--a close neighbor geographically with New 
Jersey with a similar tradition of a people starting at the bottom and 
succeeding through determination, education, and hard work.
  We also discussed a shared admiration for Justice Benjamin Cardozo, 
who was renowned for his integrity and his diligence in applying 
precedent. I served for several years on the board of a law school 
bearing Justice Cardozo's name, where I saw the achievements of 
renowned legal scholars. I feel so deeply that Sonia Sotomayor will be 
remembered one day as an outstanding member of the most revered and 
respected Court in the world.
  During our meeting, Judge Sotomayor and I came to realize we had a 
common thread through our personal histories. The phrase ``only in 
America'' truly applies to Judge Sotomayor, and I can say that with a 
special understanding. Humble beginnings were the touchstones that 
enabled each of us to achieve beyond any parent's dream.
  I grew up in Paterson, NJ, a hardscrabble mill town. My family lacked 
resources but left an inheritance of values with no valuables. My 
parents were brought to America by my grandparents seeking an 
opportunity to be free and to make a living. We were taught that we 
were obligated, if we had the opportunity, to make sure we gave 
something back to the community in which we lived.
  Judge Sotomayor's family moved here from Puerto Rico, and she grew up 
in a housing project where she saw, up front and close, the struggles 
of people living in poor areas. Like my father, Judge Sotomayor's dad 
died at a very young age, and her mother, like mine, became a widow at 
a very young age. She became a single mother, like mine. Judge 
Sotomayor's mother had to raise her and her brother in the face of 
racial, social, and financial adversity. In fact, her mother worked two 
jobs to support her children.
  Despite the many difficulties, Judge Sotomayor has reached the 
highest rung of our society. At Princeton and also at Yale Law School, 
she achieved academic honors, and then she worked in the Manhattan 
District Attorney's Office. As a district attorney, she prosecuted 
murder, robbery, and assault cases, among others. From the DA's office 
she became a corporate litigator and rose to partner at a prestigious 
New York law firm. While there, she threw herself into her job and 
became an expert on trademark and intellectual property law. Her career 
then led her to the bench, where she has been a Federal judge for the 
last 17 years. That is a pretty good time for testing.
  The truth is, Judge Sotomayor comes to this nomination process with 
more judicial experience than any Supreme Court nominee in a century. 
Think about it when the detractors try to find ways to sully her 
reputation. But before she became a judge and long before she appeared 
before the Judiciary Committee, where she demonstrated a remarkable 
command of the law and comfort with her knowledge, Judge Sotomayor 
carved out a reputation as a brilliant legal mind.
  Yet, in one of the most scurrilous campaigns against a judicial 
nominee I have ever witnessed, the partisan attack mills begin to churn 
out piles of distortions and half-truths about Judge Sotomayor right 
after the President picked her to be his nominee. They had their 
gunsights settled on whoever it might be. But in this instance, we have 
one of the more distinguished scholars of the law to be able to be 
honored and to honor us at the same time. They tried to paint her as a 
radical. They even tried to paint her as a bully. They even tried to 
paint her as lacking intelligence. But there was absolutely no place in 
her judicial record to use anything serious against her. They went down 
the path of personal destruction; it has become a habit around here. 
They picked through her speeches. They zeroed in on one sentence here 
and another there to try to discredit her as nothing more than an 
affirmative-action choice.
  I want to get one thing straight. Judge Sotomayor represents the best 
this country has to offer. She is a role model for all Americans, and 
she is, deservedly so, a source of great pride for the Latino 
community. By any standard, Judge Sotomayor is exceptionally well 
qualified to serve as an Associate Justice of the Supreme Court. With 
17 years of judicial experience and 12 of those on the Second Circuit 
Court of Appeals, she is well equipped for the task of Supreme Court 
Justice.
  If confirmed, she will be the only member of the Supreme Court who 
has previously worn a trial judge robe. The experience should not be 
overlooked.

[[Page S8807]]

Right now, Justice Souter, whom Judge Sotomayor would replace on the 
Court, is the only Justice with a trial court background.
  Earlier this year, before Justice Souter had even announced his 
retirement, Chief Justice Roberts said that the Court's dearth of trial 
bench knowledge was, here I quote, ``an unfortunate circumstance'' and 
a ``flaw.'' Trial court judges handle civil and criminal cases and they 
see firsthand the impact of the law on ordinary Americans.
  While on the trial bench, Judge Sotomayor handled 450 cases. Put 
directly, her experience is varied, multifaceted. What is more, she was 
appointed to the bench by both Democratic and Republican Presidents. 
Did they have bad judgment? I think not. I think not. Her record proved 
that. On any fair examination of her judicial record, including more 
than 400 published opinions as a Federal appellate court judge, it 
shows she is balanced in her approach, takes in all the facts, and 
follows precedent. Her legal reasoning has been consistently admired 
for applying the law fairly, and her opinions reveal nothing more than 
a strict adherence to the rule of law.
  The American Bar Association has given her its highest rating, 
calling her ``well qualified.''
  That is a distinction of significant importance.
  This nomination is an incredibly important moment for our country. 
The Supreme Court makes decisions that determine the very contours of 
our country's future. It has a direct say on the rights or lack of 
rights that our children and grandchildren will have.
  The Court decides whether big corporations have a stronger claim to 
justice than the little guy. The Court sets the table for government 
power, whether it goes unchecked or is responsible to the people. That 
is the domain. Critical. The rulings of the Court affect everyday 
people from New Jersey and everyday Americans.
  The Framers of the Constitution created a system of checks and 
balances with three coequal branches. No one understands that better 
than Judge Sotomayor, who said during her confirmation hearings, ``The 
task of a judge is not to make law, it is to apply the law.''
  After consideration, careful consideration, I conclude that I must 
vote ``yes'' on the confirmation of Judge Sotomayor. Judge Sotomayor 
has consistently shown judicial restraint and she will prove to be a 
strong and independent voice on that Court.
  Like many Americans, I am sure I will not always agree with every 
decision she makes. But I have the comfort of knowing, of believing, 
that she will resolve legal questions with an open mind, will put the 
rule of law above any personal beliefs.
  Her judicial record is unparalleled. Her professional and academic 
credentials are impeccable, and her story is inspiring. I watched and 
listened carefully to what she had to say during her confirmation 
hearings and when we met in person.
  Her life has been one of breaking down barriers. I look forward to 
seeing her break one more. For those reasons I am honored to support 
Judge Sotomayor's breakthrough nomination.
  I hope my colleagues will step up and vote their conscience and vote 
their beliefs and not inject any of the insignificant things we have 
seen discussed all over the place until this. I hope they will confirm 
her in an overwhelming majority, which is what she and the country 
deserve.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DODD. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Mr. President, I rise in strong support of the nomination 
of Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme 
Court.
  I wish to thank Pat Leahy, my seatmate here in the Senate, the 
Chairman of the Judiciary Committee, for his leadership. Let me also 
thank Jeff Sessions, who is the ranking Republican on the committee, 
and all members of the committee.
  Those are pretty important jobs they have. Obviously they are 
considering nominees for the district court, the appellate court. But 
moments when you consider a nominee to the Supreme Court do not happen 
every day and are pretty significant moments.
  I commend the committee for the speed with which they handled this. A 
lot of time these matters can get tied up for weeks on end, as we have 
seen in prior years. But I particularly commend Pat Leahy, who does a 
great job chairing the Judiciary Committee, and all members for their 
work in this area.
  Article II of the Constitution gives the Senate an awesome 
responsibility for providing advice and consent on judicial 
nominations. Those who we confirm are in a lifetime position as one of 
the nine men and women who will have the ability to literally shape 
every phase of American law and society.
  Other than authorizing war or amending the U.S. Constitution, this 
body has no more important power than the one we exercise when we 
choose to confirm a nominee to sit on the U.S. Supreme Court.
  Clearly, then, the Constitution demands that we subject nominees to 
very close scrutiny. But it does not tell us how. Each Senator must 
determine for himself or herself the appropriate criteria.
  Over the years I have been here, I have had the privilege of 
listening, not as a member of the Judiciary Committee, but as a Member 
of this body, to debates, and there have been some tremendous ones over 
the years on various nominees. Most have been confirmed, some have not. 
But it is usually a robust debate, an important debate, and the 
scrutiny of these nominees is the highest any nominee for any office 
receives.
  I have always relied on a three-part test.
  The first test I apply, and have done this across the board over the 
years: Does the nominee have the technical competence and legal skills 
to do the job?
  Second: Does the nominee have the proper character and temperament to 
serve on the highest Court of our land?
  And, third: Does the nominee's record demonstrate respect for and 
adherence to the principle underlying our legal system--that is, equal 
justice for all?
  I am convinced, without any doubt or hesitation, that Judge Sotomayor 
passes all three tests with distinction.
  As to Judge Sotomayor's competence: Her resume is that of experienced 
and accomplished jurist, one who will take her seat with more bench 
experience, I might point out, as I am sure others have, than any other 
Justice currently serving on the U.S. Supreme Court.
  She graduated from Yale Law School in my home State of Connecticut, 
has been a prosecutor and private attorney, and spent 17 years on the 
Federal bench as both a district court judge and an appellate court 
judge.
  As to Judge Sotomayor's character: Her long list of enthusiastic 
recommendations and her terrific performance before the Judiciary 
Committee revealed her to be a remarkable woman of deep integrity. Her 
incredible life story, rising from a housing project in the Bronx to 
the height of American jurisprudence, is truly an inspiration. And, of 
course, as someone who would be the first Latina and third woman to 
serve on the Court, Judge Sotomayor is an historic figure.
  As to Judge Sotomayor's legal philosophy: Her writings and her 
thoughtful answers to difficult questions raised by our colleagues on 
the Judiciary Committee make it clear that Judge Sotomayor is committed 
to the principle of equality that forms the foundation of America's 
system of jurisprudence.
  For Judge Sotomayor, as for any nominee, that is enough to earn my 
vote, regardless of what I think about any particular decision. I voted 
to confirm Chief Justice Roberts, much to the consternation of people 
in my own party and others who felt we should object because we did not 
agree with Judge Roberts' decisions in a number of cases. But I applied 
my three-part

[[Page S8808]]

test and Justice Roberts passed. I have applied that test over the 
years.
  So while I have not agreed with every decision that the Chief Justice 
has taken during his tenure on the bench, I would still tell you it was 
a good choice, despite my disagreement with some of his decisions. It 
is the kind of quality you want on the Supreme Court.
  I worry deeply in this body that if we start taking standards to 
apply to the nominees for the Supreme Court, such as we appear to be 
doing, I think we do damage to the tradition we must uphold in this 
body of applying standards that go far beyond our particular concerns 
about decisions here and there, or to listen to constituency groups to 
such a degree that they dominate the vote patterns here in the Senate.
  Frankly, I do not think I am telling any of my colleagues anything 
they do not know already. I do not think anybody in this Chamber 
believes that she is incompetent or temperamentally unsuited for the 
job, or that she does not believe in equal justice under the law.
  The actual debate, however, has focused not on the nominee's enormous 
body of exemplary work but a few examples from her career, selected for 
their ability to create controversy.
  Out of thousands of decisions--and that is not hyperbole; she has 
been involved in thousands of decisions--if it were not amusing to me 
it would be disturbing to me. There are eight cases that were the 
subject of debate in her nomination, eight cases out of thousands in 
which she rendered an opinion either as a joint participant in the 
opinion or as the sole decider in the case.
  So out of thousands of cases, eight items were brought up. Frankly, 
you could do that with anybody. But someone who has had 17 years on the 
bench, going through thousands of cases, if that is the basis for being 
against this nominee, I do not know if anyone can ever pass the test 
here if that were the case, if you are looking for people with 
experience and temperament and ability to judge.
  She should not be confirmed just because of her ethnicity. As someone 
who is proud that he speaks the Spanish language, served the Peace 
Corps in Latin America, in the Dominican Republic, and knows the area 
where Judge Sotomayor grew up in the Bronx, her nomination should not 
rest solely on ethnicity. And she would be offended if she thought it 
were the case.
  But it also is a moment of celebration as well, that we in this 
country respect diversity of our population. Many have said this is a 
remarkable story, and I appreciate the point they are trying to make. 
But it is not terribly remarkable, it is America. And in America that 
story is not remarkable. That is the great brilliance of our country. 
We have a President of the United States who was raised by a single 
mother under difficult circumstances. Bill Clinton, whom we are talking 
about today because of his heroic efforts to help release the two women 
who were held in North Korea, had an equally compelling story. Ronald 
Reagan had a compelling story.
  There are many people who have risen to incredible heights in our 
country in success in the private and public sector who have come from 
similar circumstances as Judge Sotomayor. It is a great tribute to our 
country that people such as Judge Sotomayor can achieve the success she 
has because we celebrate it in our country.
  So it is more a reflection I think of today's political climate than 
it is on this terrific nominee who we have the privilege of voting for. 
The legal and political issues raised during her confirmation hearings 
are complex and interesting, as they should be. But the decision 
currently facing the Senate is not a hard call, in my view. I have been 
here when there have been hard calls. This is not a hard call. This 
ought to be an easy call for Members here.
  She is a brilliant jurist. She is a remarkable American. And she is 
going to make a fantastic Justice on the U.S. Supreme Court. I could 
not be prouder, when the time arrives, to cast my vote in favor of this 
nominee.
  The Judiciary Committee has received letters of support from several 
State and local bar associations, including the New York City Bar, the 
Women's Bar Association of the State of New York, and the Connecticut 
Hispanic Bar Association.
  The Connecticut Hispanic Bar Association, which honored Judge 
Sotomayor in 1998 with its Achievement Award at its Annual Awards 
Dinner, wrote:

       Since being appointed to the bench, Judge Sotomayor has 
     compiled an exemplary and distinguished record. She has 
     earned a stellar reputation as a defender of the rule of law 
     and praise for her thoughtful and thorough written opinions.

  I ask unanimous consent these letters be printed in the Record.

                               Exhibit 1

                                           Women's Bar Association


                                     of the State of New York,

                                       New York, NY, July 1, 2009.
     Senator Patrick J. Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator: As president of the Women's Bar Association 
     of the State of New York (WBASNY), I am pleased to present 
     the attached statement in support of the confirmation of 
     Judge Sonia Sotomayor--a WBASNY member--to the United States 
     Supreme Court. Her outstanding experience, her philosophy of 
     judicial moderation, and her distinctive perspective, as 
     demonstrated by her legal opinions, make her superbly 
     qualified for this service.
       I respectfully request that WBASNY be given the opportunity 
     to testify about Judge Sotomayor during the U.S. Senate 
     confirmation hearings.
           Sincerely,
                                           Cynthia Schrock Seeley.

            WOMEN'S BAR ASSOCIATION OF THE STATE OF NEW YORK

             Statement in Support of Judge Sonia Sotomayor

                             June 30, 2009


                              Introduction

       The Women's Bar Association of the State of New York 
     (``WBASNY''), representing more than 3,800 attorneys, judges, 
     and law students from across the State of New York, is 
     honored and proud to support President Obama's nomination of 
     Second Circuit Judge Sonia Sotomayor--a WBASNY member--to the 
     United States Supreme Court. Judge Sotomayor's wealth of 
     experience, keen intelligence, and moderate judicial 
     philosophy make her extremely well-qualified to serve as an 
     Associate Justice of the Supreme Court.


                         Outstanding Experience

       Judge Sotomayor has superb educational credentials and more 
     than sixteen years' experience as a federal judge. After 
     graduating summa cum laude from Princeton University, she 
     served as an editor of The Yale Law Journal while pursuing 
     her law degree at Yale Law School. For the first five years 
     of her career, Judge Sotomayor was an assistant district 
     attorney for the County of New York, prosecuting such crimes 
     as murder, robbery, child abuse, police misconduct, and 
     fraud. New York District Attorney, Robert M. Morgenthau, 
     calls her a ``fearless and effective prosecutor,'' who 
     ``believes in the rule of law.'' After leaving the district 
     attorney's office, Judge Sotomayor worked for a private law 
     firm as a corporate litigator, where she handled complex 
     commercial cases, both international and domestic. Her work 
     focused on the areas of intellectual property, real estate, 
     employment, banking, contracts, and agency law.
       In October 1992, Judge Sotomayor was appointed to the U.S. 
     District Court for the Southern District of New York by 
     President Bush and became the youngest judge on the Court. In 
     her six years as a district court judge, Judge Sotomayor 
     presided over approximately 450 cases, earning a reputation 
     as a ``sharp'' and ``fearless'' jurist. She was elevated to 
     the U.S. Court of Appeals for the Second Circuit in 1998 by 
     President Clinton, where she has participated in more than 
     3000 appeals and written approximately 400 published 
     opinions. Her colleagues on the Second Circuit bench have 
     praised her as ``a brilliant lawyer and a very sound and 
     careful judge'' who is ``fair and decent in all her 
     dealings.''


             Judicial Philosophy--A Passion for Moderation

       Judge Sotomayor's judicial opinions faithfully adhere to 
     applicable legal precedents, defer to legislative and 
     regulatory decision-making, and carefully examine the facts 
     of each case. Because she applies the same principled 
     analysis to each matter she reviews, her conclusions do not 
     fall into superficially predictable categories. Judge 
     Sotomayor's application of the law hews closely to 
     established law and precedents. Hers is a clear and 
     consistent voice for moderation that demonstrates an 
     appreciation for the far-reaching implications of appellate 
     decisions. Essentially limiting the scope of her own power, 
     Judge Sotomayor is a model of judicial restraint.
       In dissenting from the Second Circuit's reversal of a 
     district court decision that dismissed an age discrimination 
     claim brought by a seventy-year-old clergyman, Judge 
     Sotomayor wrote that the majority opinion ``violate[d] a 
     cardinal principle of judicial restraint by reaching 
     unnecessarily the question of [the Religious Freedom 
     Restoration Act]'s constitutionality'' when the question

[[Page S8809]]

     had not been presented to the Court.'' Similarly, upon 
     reviewing an immigration asylum case that addressed China's 
     restrictive family planning policies, Judge Sotomayor wrote 
     that the majority opinion ``mark[ed] an extraordinary and 
     unwarranted departure from our longstanding principles of 
     deference and judicial restraint.''
       Judge Sotomayor's awareness of the long-range effects of 
     judicial decisions undergirds her passion for judicial 
     restraint. Addressing an immigration asylum claim brought by 
     three women who had been subjected to female genital 
     mutilation in their native Guinea, Judge Sotomayor wrote that 
     a colleague's analysis of continuing persecution claims was 
     ``unnecessary . . . may never need to be decided, . . . [and] 
     . . . could have far reaching implications in other types of 
     cases.'' Reviewing a Fourth Amendment claim of illegal search 
     in the context of a plaintiff's suit for money damages, Judge 
     Sotomayor reminded her colleagues of the Supreme Court's 
     articulation of the applicable law: ``[T]he Supreme Court has 
     struck a careful balance between the vindication of 
     constitutional rights and government officials' ability to 
     exercise discretion in the performance of their duties. Our 
     case law, in subtle but important ways, has altered this 
     balance . . . In the vast majority of cases, including this 
     one, the particular phrasing of the standard will not alter 
     the outcome . . . [y]et the effect in future cases may not 
     always be so benign. . . . It is time to . . . reconcile our 
     . . . analysis with the Supreme Court's most recent, 
     authoritative jurisprudence.''


                  Distinctive Common-Sense Perspective

       Judge Sotomayor brings a distinctive common-sense 
     perspective to the Court, and an appreciation of the 
     differences among litigants' individual attributes and 
     experiences. In 2007, then-Senator Obama might have been 
     describing Judge Sotomayor when he said, ``Part of the role 
     of the Court is . . . to protect people who may be vulnerable 
     in the political process, the outsider, the minority, those 
     who are vulnerable, those who don't have a lot of clout.'' 
     While always adhering to established law and precedent, her 
     opinions and decisions reveal a special sensitivity to 
     challenges facing those whom WBASNY seeks to protect: women 
     and other groups for whom the equal administration of justice 
     has been elusive, such as immigrants, children, and the 
     disabled.
       Judge Sotomayor is eminently qualified for the Supreme 
     Court without regard to gender. However, the members of 
     WBASNY believe that her gender enhances her other stellar 
     qualifications. Supreme Court Justice Ruth Bader Ginsburg 
     recently stated that the Supreme Court needs another woman: 
     ``[T]here are perceptions that we have because we are women. 
     . . . Women belong in all places where decisions are being 
     made. I don't say (the split) should be 50-50. It could be 
     60% men, 40% women, or the other way around. It shouldn't 
     be that women are the exception.'' Similarly, Justice 
     Sandra Day O'Connor stated, ``Despite the encouraging and 
     wonderful gains and the changes for women which have 
     occurred in my lifetime, there is still room to advance 
     and to promote correction of the remaining deficiencies 
     and imbalances.'' Addressing an audience of WBASNY members 
     in 1999, Judge Sotomayor discussed the impact of her 
     gender on her own jurisprudence: ``Each day on the bench, 
     I learn something new about the judicial process and its 
     meaning, about being a professional woman in a world that 
     sometimes looks at us with suspicion. . . . I can and do . 
     . . aspire to be greater than the sum total of my 
     experiences but I accept my limitations. I willingly 
     accept that we who judge must not deny the differences 
     resulting from experience and gender but attempt . . . 
     continuously to judge when those opinions, sympathies and 
     prejudices are appropriate.''
       Judge Sotomayor's decisions reflect an understanding of 
     ``women's issues'' and how they are essentially human issues. 
     Dissenting from an immigration decision, Judge Sotomayor 
     wrote, ``The majority concedes that both spouses suffer a 
     ``profound emotional loss'' as a result of a forced abortion 
     or sterilization, but it never sufficiently explains why the 
     harm of sterilization or abortion constitutes persecution 
     only for the person who is forced to undergo such a procedure 
     and not for that person's spouse as well. . . . [T]he 
     majority's conclusion disregards the immutable fact that a 
     desired pregnancy . . . necessarily requires both spouses to 
     occur, and that the state's interference with this 
     fundamental right ``may have subtle, far reaching and 
     devastating effects'' for both husband and wife. The 
     termination of a wanted pregnancy under a coercive population 
     control program can only be devastating to any couple, akin, 
     no doubt, to the killing of a child.''
       In the same case, Judge Sotomayor addressed the Court's 
     obligation to consider the differences between Chinese asylum 
     seekers and U.S. citizens when making assumptions about 
     parties' actions: ``We simply have no foundation on which to 
     conclude that all couples have the financial resources to 
     escape at the same time, and as the government stated at oral 
     argument, it is not uncommon for Chinese couples to separate 
     and have one spouse go abroad in order to amass the necessary 
     resources to bring over the other spouse. I believe the 
     majority here is opining on a subject--imbued with 
     potentially significant cultural differences--with which it 
     has no expertise or empirical evidence.''
       Judge Sotomayor has also demonstrated an understanding of 
     the particular difficulties women and girls face in our 
     society. In a case alleging discriminatory failure to promote 
     and retaliatory discharge, Justice Sotomayor held that the 
     plaintiff had failed to establish that she was discriminated 
     against on either basis.''' However, addressing the same 
     employee's claim of sexual harassment, Judge Sotomayor held 
     that testimony that the woman's supervisor repeatedly 
     commented that ``women should be barefoot and pregnant . . . 
     [and that he] would stand very close to women when talking to 
     them and would `look[ ] at [them] up and down in a way that's 
     very uncomfortable' '' was sufficient to entitle the 
     plaintiff to a jury trial on the question of whether she had 
     been subjected to a hostile work environment.
       In a case involving strip searches of young girls admitted 
     to juvenile detention centers, Judge Sotomayor wrote that the 
     majority failed adequately to consider ``the privacy 
     interests of emotionally troubled children,'' most of whom 
     ``have been victims of abuse or neglect, and may be more 
     vulnerable mentally and emotionally than other youths their 
     age.'' She cautioned, ``We 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.' ''
       Dissenting from a dismissal of a claim that a school 
     district had discriminated against an African American child 
     in demoting him from first grade to kindergarten, Judge 
     Sotomayor wrote, ``I consider the treatment this lone black 
     child encountered . . . to have been . . . unprecedented and 
     contrary to the school's established policies.'' She found it 
     ``crucial'' that the student as ``the only black child in 
     this classroom and one of the very few black students in the 
     entire school.''
       Addressing a claim brought by a father who was investigated 
     by the Vermont Department of Social and Rehabilitation 
     Services after his estranged wife accused him of sexually 
     abusing his three-year-old son, Judge Sotomayor first noted 
     that the U.S. Supreme Court has afforded constitutional 
     protection to parents' interest in the care, custody and 
     management of their children, then addressed the ``compelling 
     governmental interest in the protection of minor children, 
     particularly in circumstances where the protection is 
     considered necessary as against the parents themselves.'' 
     Carefully analyzing the actions of the social workers sued by 
     the father, and the applicable law available to guide the 
     actions of those social workers, Judge Sotomayor ultimately 
     held that despite problems with the investigation, ``we 
     conclude that defendants had a reasonable basis for their 
     substantiation determination and that they therefore did not 
     violate plaintiffs' constitutional rights.'' However, she 
     also provided clear guidance to child protection workers: 
     ``[F]rom this day forward, these and other case workers 
     should understand that the decision to substantiate an 
     allegation of child abuse on the basis of an investigation 
     similar to but even slightly more flawed than this one will 
     generate a real risk of legal sanction.''
       Judge Sotomayor has also thoughtfully applied the law 
     governing the rights of disabled persons. In holding that the 
     court below had inaccurately formulated a jury charge in an 
     employment discrimination case, Judge Sotomayor wrote, 
     ``Taken as a whole, the charge suggests that an employer may 
     offer any accommodation that does not cause an undue 
     hardship, including reassignment to an inferior position, and 
     that the plaintiff is required to accept . . . . The district 
     court . . . erred.''
       As a district judge for the Southern District of New York, 
     Judge Sotomayor considered a claim brought by a woman with a 
     learning disability who sought reasonable accommodations in 
     taking the New York State Bar Examination. Judge Sotomayor 
     conducted a total of twenty-five days of trial, reviewed 
     thousands of pages of exhibits and briefs, and heard 
     testimony from eight experts, finally concluding that the 
     plaintiff was entitled to accommodations of her disability in 
     taking the bar examination, and $7,500 in damages. Her 
     detailed and respectful treatment of the parties and 
     witnesses in a decision on a matter involving less than ten 
     thousand dollars in damages is testament to her commitment to 
     the fair and equal administration of justice to all who come 
     before her.
       In another case, Judge Sotomayor considered a district 
     court's dismissal of the claim of a former employee who 
     alleged that he was discharged after he suffered a disabling 
     back injury. In a clear and erudite decision, Judge Sotomayor 
     addressed the interplay of three different disability 
     statutes, evaluated complex procedural issues, and analyzed 
     the potential liability of a parent corporation and a sister 
     corporation for employment discrimination. Her succinct 
     conclusion reinstated the employee's claim against his 
     employer, affirmed the dismissal of the claim against the 
     sister corporation, and resolved the procedural issues.


                               Conclusion

       Judge Sotomayor's jurisprudence defies easy categorization 
     because each of her decisions is characterized by careful 
     consideration of the law and the facts. Her clear and 
     compelling analyses and her fair treatment of the parties 
     epitomize the ideal qualities of a Supreme Court Justice. She 
     will bring balance and perspective to the Court and will 
     enhance the delivery of justice to all.

[[Page S8810]]

     
                                  ____
                                                       Connecticut


                                     Hispanic Bar Association,

                                      Hartford, CT, July 10, 2009.
     Senator Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy: The Connecticut Hispanic Bar 
     Association (CHBA) writes on the eve of the commencement of 
     the hearing on Judge Sonia Sotomayor's nomination to the 
     United States Supreme Court to urge you and the other members 
     of the United States Senate Judiciary Committee to treat 
     Judge Sotomayor with the respect she deserves, examine her 
     extensive record thoughtfully, and perform your 
     constitutional duty to advise and consent to her nomination 
     expeditiously and without obstruction.
       Founded in 1993, the CHBA works to enhance the visibility 
     of Hispanic lawyers throughout the state; to facilitate 
     communication and sharing of information and resources among 
     our members; to serve as mentors to new lawyers and law 
     students; and to assist the public and private sectors in 
     achieving diversity in their law firms and legal departments. 
     The CHBA also serves to address and respond to issues 
     impacting our Hispanic communities, including the issues of 
     access to the courts, judicial diversity and other social 
     challenges.
       Judge Sotomayor is a member and a long-time supporter of 
     the CHBA. In recognition of her accomplishments, the CHBA 
     honored Judge Sotomayor in 1998 with its Achievement Award at 
     its Annual Awards Dinner.
       Since being appointed to the bench, Judge Sotomayor has 
     compiled an exemplary and distinguished record. She has 
     earned a stellar reputation as a defender of the rule of law 
     and praise for her thoughtful and thorough written opinions. 
     Moreover, in her over 11 years of service with the United 
     States Second Circuit Court of Appeals, she has participated 
     in over 3,000 decisions and authored approximately 400 
     opinions on important issues of constitutional law, difficult 
     procedural matters, and complex corporate and business 
     issues.
       Additionally, as you know, her personal story is similarly 
     compelling. Judge Sotomayor grew up in a working-class family 
     in New York City. She attended Princeton University on a 
     scholarship where she graduated summa cum laude and was 
     elected Phi Beta Kappa. She went on to earn her law degree at 
     Yale Law School where she was an editor of the Yale Law 
     Journal. During most of her career, Judge Sotomayor has 
     chosen to serve the American public, first as a prosecutor in 
     Manhattan and then as a federal judge.
       The CHBA fully supports the appointment of Judge Sotomayor 
     to the United States Supreme Court and urges the United 
     States Senate Judiciary Committee to do the same.
           Sincerely,
                                            Rene Alejandro Ortega,
     President.
                                  ____



                                            New York City Bar,

                                      New York, NY, June 30, 2009.
     Re evaluation of nomination Judge Sonia Sotomayor.

     Hon. Patrick J. Leahy,
     Russell Senate Office Building,
     Washington, DC.
       Dear Senator Leahy: The Association of the Bar of the City 
     of New York reviewed and evaluated the nomination of Judge 
     Sonia Sotomayor to be a Justice of the United State Supreme 
     Court. The Association found Judge Sotomayor to be Highly 
     Qualified for that position.
       A report detailing our findings can be found at: http://
www.nycbar.org/pdf/report/11693606_3.pdf
           Sincerely,
                                                Patricia M. Hynes,
     President.
                                  ____


 The Association of the Bar of the City of New York Finds Judge Sonia 
           Sotomayor Highly Qualified for U.S. Supreme Court

       New York, June 30, 2009.--Patricia M. Hynes, President of 
     The Association of the Bar of the City of New York, announced 
     that the Association has concluded that Judge Sonia Sotomayor 
     is Highly Qualified to be a Justice of the United States 
     Supreme Court.
       The Association found that Judge Sotomayor demonstrates a 
     formidable intellect; a diligent and careful approach to 
     legal decision-making; a commitment to unbiased, thoughtful 
     administration of justice; a deep commitment to our judicial 
     system and the counsel and litigants who appear before the 
     court; and an abiding respect for the powers of the 
     legislative and the executive branches of our government.
       In conducting its evaluation, the Association reviewed and 
     analyzed information from a variety of sources: Judge 
     Sotomayor's written opinions from her seventeen years on the 
     circuit court and district court; her speeches and articles 
     over the last twenty-one years; her prior confirmation 
     testimony; comments received from the Association's members 
     and committees; press reports, blogs and commentaries; 
     interviews with her judicial colleagues and numerous 
     practitioners; and an interview with Judge Sotomayor.
       The Association determined that Judge Sotomayor possesses, 
     to an exceptionally high degree, all of the qualifications 
     enumerated in the Guidelines established by the Association 
     for considering nominees to the United States Supreme Court: 
     (1) exceptional legal ability; (2) extensive experience and 
     knowledge of the law; (3) outstanding intellectual and 
     analytical talents; (4) maturity of judgment; (5) 
     unquestionable integrity and independence; (6) a temperament 
     reflecting a willingness to search for a fair resolution of 
     each case before the court; (7) a sympathetic understanding 
     of the Court's role under the Constitution in the protection 
     of the personal rights of individuals; and (8) an 
     appreciation for the historic role of the Supreme Court as 
     the final arbiter of the meaning of the United States 
     Constitution, including a sensitivity to the respective 
     powers and reciprocal responsibilities of the Congress and 
     Executive.
       The Association has been evaluating judicial candidates for 
     nearly 140 years in a nonpartisan manner based upon the 
     nominees' competence and merit. Although the Association had 
     evaluated a number of Supreme Court candidates over the 
     course of its history, in 1987 it determined to evaluate 
     every candidate nominated to the Supreme Court.
       In 2007, the Executive Committee of the Association moved 
     from a two-tier evaluation system in which candidates were 
     found to be either ``qualified'' or ``not qualified'', to a 
     three-tier evaluation system. The ratings and the criteria 
     that accompany them are as follows:
       ``Qualified.'' The nominee possesses the legal ability, 
     experience, knowledge of the law, intellectual and analytical 
     skills, maturity of judgment, common sense, sensitivity, 
     honesty, integrity, independence, and temperament appropriate 
     to be a Justice of the United States Supreme Court. The 
     nominee also respects precedent, the independence of the 
     judiciary from the other branches of government, and 
     individual rights and liberties.
       ``Highly Qualified.'' The nominee is qualified, to an 
     exceptionally high degree, such that the nominee is likely to 
     be an outstanding Justice of the United States Supreme Court. 
     This rating should be regarded as an exception, and not the 
     norm, for United States Supreme Court nominees.
       ``Not Qualified.'' The nominee fails to meet one or more of 
     the qualifications above.
       The present review is the first time the Association has 
     utilized this three-tier system for a Supreme Court review.

  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. ROBERTS. Mr. President, I ask unanimous consent that the 
Republican time for the next hour be allocated as follows: myself for 
10 minutes, Senator Barrasso for 10 minutes, Senator Crapo for 15 
minutes, Senator Wicker for 10 minutes, and Senator Collins for 15 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROBERTS. Mr. President, I rise today to express my opposition, my 
considered opposition, to Judge Sonia Sotomayor's nomination to the 
U.S. Supreme Court.
  As Senators, I think we all know we have an obligation to ensure that 
our courts are filled with qualified and impartial judges.
  While Judge Sotomayor has an impressive resume--that is a given--I am 
concerned that her personal judgments and views will impact her 
judicial decisions. In addition, I find some of her rulings very 
troubling.
  During the Senate's debate on the nomination of Chief Justice John 
Roberts, then-Senator Obama stated:

     that while adherence to legal precedent and rules of 
     statutory or constitutional construction will dispose of 95 
     percent of the cases that come before the Court, so that both 
     a Scalia or Ginsburg will arrive at the same place most of 
     the time on those 95 percent of the cases, what matters on 
     the Supreme Court is those 5 percent of cases that are truly 
     difficult. In those cases, adherence to precedent and the 
     rules will only get you through the 25th mile of the 
     marathon. That last mile can only be determined on the basis 
     of one's deepest values, one's core concerns, one's broader 
     perspectives on how the world works, and the depth and 
     breadth of one's empathy.

  Thus the entrance of the ``empathy'' issue to this debate. I 
respectfully disagree with now-President Obama.
  Judges must decide all cases in adherence to legal precedent and 
rules of statutory or constitutional construction. It does not mean if 
they do that they do not have empathy. I agree--and I think everybody 
would agree--everybody on the Supreme Court has empathy. But the role 
of a judge is not to rule based on his or her own personal judgments 
but to adhere to the laws as they are written.
  While Judge Sotomayor stated during her confirmation hearing that 
``it is not the heart that compels conclusions in cases, it is the 
law,'' I still have concerns regarding her ability to remain impartial. 
She has made some statements in Law Review articles and speeches that 
are of serious concern. I

[[Page S8811]]

am not convinced that Judge Sotomayor will set aside her personal 
judgments and views.
  While on the Second Circuit Court of Appeals, Judge Sotomayor joined 
a four-paragraph ruling on property rights. In Didden v. Village of 
Port Chester, the appellants claimed that a developer demanded $800,000 
in order to avoid condemnation of the property by the city. When the 
appellants refused to pay the $800,000, they received a petition to 
initiate condemnation. Although the Second Circuit Court of Appeals 
dismissed the case, it was noted that relief could not be granted based 
on the U.S. Supreme Court's decision in Kelo v. City of New London. 
That four-paragraph ruling didn't even provide an in-depth analysis as 
to how the Kelo ruling applied to the facts at hand. In fact, the Kelo 
decision acknowledges that ``a city no doubt would be forbidden from 
taking land for the purpose of conferring a private benefit on a 
particular party.''
  The four-paragraph ruling in Didden is very troubling. In Kansas, 
land is gold; farmland is platinum. We have a healthy respect for 
property rights in Middle America. It also bothers me that a court 
could make a broad statement without analyzing and applying the facts 
to case law.
  Turning to firearm rights, Judge Sotomayor joined an opinion ruling 
that the second amendment is not a fundamental right and, therefore, 
does not apply to State and local governments. It is likely that at 
some point the second amendment's application to States could be argued 
before the Supreme Court. That could come very quickly. I would 
certainly hope that should this matter be argued before the Supreme 
Court, Judge Sotomayor would recuse herself. During her hearing, she 
did not indicate whether she would recuse herself in any decision. That 
was not, however, the case during the nomination hearings of Judges 
Alito and Roberts.
  I do not discount the fact that Judge Sotomayor is a very 
accomplished judge and has an extensive judicial record. However, some 
of her statements, writings, and rulings concern me. They indicate her 
personal judgments and views may impact her judicial decisions. We have 
a constitutional obligation to ensure that our judges are impartial and 
faithful to the law.
  During Chief Justice John Roberts' confirmation hearing, he noted:

       Judges and justices are servants of the law, not the other 
     way around. Judges are like umpires. Umpires don't make the 
     rules. They apply them. The role of an umpire and judge is 
     critical. They make sure everybody plays by the rules [not by 
     empathy], but it is a limited role. Nobody ever went to a 
     ball game to see the umpire.

  I am not convinced that Judge Sotomayor will be an umpire and 
consistently adhere to the rule of law as opposed to empathy.
  For these reasons and others cited by some of my colleagues, I oppose 
her nomination.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wyoming.
  Mr. BARRASSO. Mr. President, I have three criteria in evaluating an 
individual to fill a vacancy on the Supreme Court. First, select the 
best candidate for the job. Second, the Justice must be impartial and 
allow the facts and Constitution to speak. Third, a Justice's 
responsibility is to apply the law not to write it.
  I have reviewed Judge Sotomayor's record, and I met with her to learn 
more about her. I want to take a moment to share my thoughts on Judge 
Sotomayor's nomination.
  Judge Sotomayor has a compelling life story. She was raised in public 
housing projects in the Bronx. She was diagnosed with type 1 diabetes 
at age 8. Her father died when she was 9, and she was subsequently 
raised by her mother. Judge Sotomayor graduated valedictorian of 
Cardinal Spellman High School in the Bronx. She graduated summa cum 
laude from Princeton. She earned her juris doctorate from Yale Law 
School, where she was editor of the Yale Law Review. After graduating 
from law school, Judge Sotomayor worked as an assistant district 
attorney in New York City for 5 years. She then worked in private 
practice for 7 years.
  In 1991, Judge Sotomayor was nominated to the Federal bench by 
President George Herbert Walker Bush. In 1998, President Clinton 
nominated her to the Second Circuit Court of Appeals where she 
currently sits.
  I believe Judge Sotomayor has the legal experience and the skills to 
be considered for the Supreme Court. During the confirmation process, 
questions were raised about her ability to make decisions on the facts 
presented not on events and facts that became ingrained during her 
life. Judges must be impartial and allow the facts and the Constitution 
to speak not their personal experience. For America's judicial system 
to work, judges must always remain impartial.
  At her confirmation hearing, Judge Sotomayor stated that her judicial 
philosophy is ``fidelity to the law.'' This is in contrast to her 
extensive commentary over the past 15 years, a commentary that 
emphasizes personal experience over impartiality in a judge's 
decisionmaking. The contrast is especially troubling when a judge, as 
was the situation in the case of Ricci v. DeStaphano, fails to 
articulate the reasons for the decision.
  In the Ricci case, the firefighters case, an exam was used as part of 
the promotion process. The exam consisted of a written test as well as 
an oral test. It was prepared by Industrial Organizational Solutions, a 
professional testing firm. The test measured individual knowledge, 
individual skills, and individual abilities related to the specific 
position being filled.
  The highest scores on the written exam were achieved overwhelmingly 
by White firefighters. After the results were posted, the city of New 
Haven, CT, did not like the results and decided at that point to not 
use the exam. Several officers sued. They sued the city for taking this 
action.
  Who were the officers who sued? One was Frank Ricci, the lead 
plaintiff. He was a career firefighter. He is dyslexic. To study, he 
hired and paid someone to read the recommended study books onto an 
audio tape so he could listen to the tapes. He studied up to 13 hours a 
day. He gave up a second job, time with his family.
  Lt Ben Vargas was another officer who sued and testified at Judge 
Sotomayor's confirmation hearing. He also has a career as a 
firefighter. He grew up in Fair Haven, which is a neighborhood of New 
Haven. His father was a factory worker. His family spoke Spanish at 
home, making school a challenge for him. He is the father of three 
boys. One of the reasons he joined the lawsuit:

       I want them [my three sons] to have a fair shake, to get a 
     job on their merits.

  The district court ruled against the firefighters. Judge Sotomayor's 
court upheld the lower court ruling dismissing the case. Judge 
Sotomayor's court issued a one-paragraph opinion summarily dismissing 
the appeal. Her court failed to cite any precedents for this decision.
  In June of 2009, the U.S. Supreme Court reversed Judge Sotomayor's 
opinion. The Supreme Court stated:

       The City made its employment decision because of race. The 
     City rejected the test results solely because the higher 
     scoring candidates were white.

  The Supreme Court went on to say:

       The process was open and fair. The problem of course is 
     that after the tests were completed, the raw racial results 
     became the predominant rationale for the City's refusal to 
     certify the results.

  The Supreme Court's 34-page majority opinion, fully analyzing the 
facts and the legal issues, stands in stark contrast to the one-
paragraph ruling by Judge Sotomayor. The lack of a detailed explanation 
by the judge's court on an issue that the Supreme Court said was not 
settled law is one I find troubling. More importantly, it raises doubt, 
fairly or unfairly, as to why Judge Sotomayor's court ruled the way it 
did. Through her own words, Judge Sotomayor's ability to completely 
disown personal beliefs and biases to reach a decision is in question.
  I have additional concerns about the principles Judge Sotomayor will 
apply in deciding future cases involving important issues such as the 
second amendment. In a 2009 second amendment case decided by Judge 
Sotomayor's court, her court ruled that the second amendment did not 
apply to the States. The court cited Supreme Court cases from the 1800s 
as precedent. But Judge Sotomayor's court went further. They ruled that 
the second amendment right is not a fundamental right, thereby allowing

[[Page S8812]]

States and local authorities broad powers to deny individuals the right 
to bear arms. The court's ruling that the second amendment right is not 
a fundamental right can't be reconciled with recent decisions on other 
courts.
  The U.S. Supreme Court, in a 2008 case, was asked to decide whether 
the District of Columbia could deny its citizens rights afforded to 
them under the second amendment. In its ruling, which was issued before 
Judge Sotomayor's 2009 decision, the Supreme Court said the second 
amendment confers an individual's right to keep and bear arms. The 
Court rightfully overturned the laws of the District of Columbia that 
denied citizens of the District the right to own a firearm.
  In a 2009 ruling from the Ninth Circuit Court of Appeals, the court 
concluded that the series of 19th century Supreme Court cases cited by 
Judge Sotomayor were not controlling on the issue of whether the second 
amendment establishes a fundamental right. The Ninth Circuit Court 
concluded the Constitution did confer that right. The court ruled that 
the second amendment right to bear arms is a fundamental right of the 
people, and it is to be protected.
  Judge Sotomayor, if confirmed, will receive a lifetime seat on the 
highest Court of the land. Her decisions may impact Americans and 
America for generations to come. Every American has the right to know 
what standard Judge Sotomayor will apply in judging future cases--
fidelity to the law, as she stated in the hearings or, as she has 
stated in the past: ``My experience will affect the facts I choose to 
see.''
  The Senate should know with absolute certainty the standard that 
Judge Sotomayor will use before confirming her to the Supreme Court. 
Without having that certainty, I am unable to support her nomination to 
the U.S. Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Idaho.
  Mr. CRAPO. Mr. President, I rise today to discuss President Obama's 
nomination of Judge Sonia Sotomayor to serve on the U.S. Supreme Court.
  First, I want to say I appreciate the efforts of my colleagues on the 
Judiciary Committee to hold thorough hearings and to process this 
nomination.
  There is no doubt that Judge Sotomayor's resume is impressive, with 
degrees from Princeton and Yale Law School. She then worked as an 
assistant district attorney, and later in private practice before 
serving as a U.S. district court judge, and currently as a U.S. circuit 
court judge.
  It is unfortunate the Senate confirmation process has reached a point 
where nominees with such extensive backgrounds are no longer 
comfortable candidly discussing their judicial philosophy and views on 
key issues.
  To date, I have received over 1,000 letters, e-mails, and phone calls 
from Idaho constituents who are overwhelmingly opposed to Judge 
Sotomayor's nomination. Many of the concerns raised in this 
correspondence are similar to concerns I personally have about the 
nomination--concerns relating to the second amendment right to bear 
arms, concerns relating to judicial activism, concerns relating to 
whether foreign law should be utilized in interpreting U.S. statutes 
and our Constitution.
  It was my hope that through the committee hearings and my personal 
meeting with Judge Sotomayor and other evaluation of her writings and 
her judicial decisions that these concerns and those of my constituents 
could be addressed. Unfortunately, though, when it came to the key 
issues, Judge Sotomayor's testimony often lacked the substance 
necessary and was even contradictory to her own previous statements, 
rulings, and writings.
  I would like to discuss some of those areas of concern. Before I do 
so, though, I want to make it very clear that with this nomination, 
many are very rightfully proud that for the first time in our country's 
history we have a Latina nominated to our highest Court. And it must be 
noted that she is receiving and being afforded a clean up-or-down vote 
on the floor of the Senate this week.
  As I indicated at the outset, it is unfortunate the confirmation 
process in the Senate has deteriorated so much over the last few years 
that others have not received similar opportunities. I am referring in 
this example to Miguel Estrada. Like Judge Sotomayor, Judge Estrada was 
rated unanimously ``well qualified'' by the American Bar Association 
when President Bush nominated him to the U.S. Court of Appeals for the 
DC Circuit.
  The DC Circuit is often considered to be a stepping stone for Supreme 
Court nominations, and at that time many thought Judge Estrada would be 
a strong nominee, that he might be the first Latino nominated to the 
Supreme Court. Judge Estrada would have deserved such an opportunity as 
Judge Sotomayor does. Unfortunately, some on the left feared that 
scenario, and as a result there was a filibuster and Judge Estrada was 
never even allowed to have an up-or-down vote on the floor of the 
Senate.
  I make this point now just to remind us all that although there are 
many here who have concerns about some of the positions and 
philosophies Judge Sotomayor has, there has been no effort to deprive 
her of an opportunity for an up-or-down vote on the floor of the Senate 
on her nomination. It is important our country recognize this.
  Let me now turn to some of the issues I indicated earlier that are of 
concern. I know a number of my colleagues have spoken already about the 
issue of the second amendment right to keep and bear arms. That is one 
of my most significant concerns.
  On July 27, 2008, the U.S. Supreme Court ruled in District of 
Columbia v. Heller that the second amendment to the Constitution 
protects an individual's right to keep and bear arms unconnected with 
service in a militia, and to use those arms for traditionally lawful 
purposes, such as self-defense within the home.
  This ruling affirmed what common sense has told us all for a long 
time: that the second amendment was intended to ensure access to all 
law-abiding citizens for self-defense and recreation. Unfortunately, 
despite this ruling in Heller, Judge Sotomayor ruled in the Maloney 
case that the second amendment does not apply to the States.
  Even the Ninth Circuit Court of Appeals, which has jurisdiction over 
my home State of Idaho and is often considered one of the most liberal 
courts in the land, has ruled the opposite way in a similar case, 
making it clear that second amendment rights are binding on the States.
  In Nordyke v. King, the Ninth Circuit held that the right to bear 
arms is ``deeply rooted in this Nation's history and tradition.'' 
Additionally, the court found that the ``crucial role this deeply 
rooted right has played in our birth and history compels us to 
recognize that it is indeed [a] fundamental [right].''
  Furthermore, and again even after the Supreme Court's ruling in 
Heller, Judge Sotomayor held that the second amendment does not protect 
a fundamental right.
  With regard to whether the second amendment applies to States, I do 
not believe any reasonable person believes that other freedoms 
contained in the Bill of Rights do not apply to the States, such as 
freedom of religion, freedom of speech, or freedom of the press. Why is 
there a different standard or effort to try to keep the second 
amendment right to bear arms from being freely available to all 
individuals in the United States?
  The Supreme Court has held in a series of opinions that the 14th 
amendment incorporates most portions of the Bill of Rights as 
enforceable against the States. Despite that Heller addressed firearms 
laws in the District of Columbia and not in a particular State, the 
Supreme Court used State constitutional precedents for its analysis in 
Heller. In fact, the Court's ruling was based in part on its reading of 
applicable language in State constitutions adopted soon after our Bill 
of Rights itself was adopted and ratified. By doing so, the Supreme 
Court recognized that the second amendment was, in fact, a fundamental 
right guaranteed under the Constitution.
  On the issue of whether the second amendment right to bear arms is a 
fundamental right, I am extremely concerned that a nominee for the 
highest Court in our land would make such an argument. I am very 
concerned that a nominee for the highest Court in our

[[Page S8813]]

Nation could so construe the second amendment right to bear arms. This 
disregard of history and legal precedent is, to me, a clear sign of a 
penchant toward judicial activism.
  As I have said, to reach her decision in Maloney, Judge Sotomayor had 
to, and did, make a judicial finding that the second amendment right to 
bear arms is not a fundamental right. In contrast, the Ninth Circuit 
Court of Appeals, in a footnote, said it as well as I think it can be 
said. The Ninth Circuit Court said:

       The county--

  Which in this case was the defendant which was seeking to implement 
some restrictions that were an infringement on the right to bear arms--

       The county and its amici--

  Those others who have filed briefs on the county's behalf--

     point out that, however universal its earlier support, the 
     right to keep and bear arms has now become controversial.

  Again, this is the Ninth Circuit Court of Appeals speaking.

       But we do not measure the protection the Constitution--

  The Constitution--

     affords a right by the values of our own times. If 
     contemporary desuetude sufficed to read rights out of the 
     Constitution, then there would be little benefit to a written 
     statement of them. Some may disagree with the decision of 
     [our] Founders to enshrine a given right in the Constitution. 
     If so, then people can amend the document. But such 
     amendments are not for the courts to ordain.

  That is the kind of correct analysis the Supreme Court has clearly 
guided us to with regard to the second amendment right to bear arms.
  Throughout Idaho and across the United States, many millions of 
Americans believe the second amendment is a fundamental right, and I am 
one of those. Soon enough, the Supreme Court will decide whether the 
second amendment is incorporated by the 14th amendment to apply to the 
States. When that case is taken up, the Court will decide just how 
``fundamental'' the second amendment is and whether States and 
communities can take away Americans' right to bear arms any time they 
want.

  I cannot support a nominee to the Supreme Court who does not 
recognize this fundamental right in our Constitution. For this reason, 
I must oppose the nomination of Judge Sotomayor.
  In addition, with regard to the role of a judge and judicial 
activism, when it comes to her views on the proper role of a judge, 
once again Judge Sotomayor's testimony before the Senate Judiciary 
Committee appears to directly contradict her publicly stated words and 
philosophy expressed prior to her nomination.
  In 2003, when discussing her gender and heritage, Judge Sotomayor 
said:

       My experiences will affect the facts I choose to see as a 
     judge.

  In another previous speech, she said:

       Personal experiences affect the facts that judges choose to 
     see.

  This is simply shorthand for judicial activism and making policy 
rather than applying the law--exactly what the Ninth Circuit said 
courts were not to do. To defend against this very notion, however, 
justice is supposed to be blind. Indeed, Lady Justice is depicted with 
a blindfold. To judge by selectively choosing which facts to emphasize 
is akin to lowering the blindfold and taking a peek, thereby rejecting 
equal justice under the law. Those who are called to judge must adhere 
to the rule of law no matter what they personally think the law should 
be or what the outcome of a particular case should be.
  After she was nominated to the Supreme Court, Judge Sotomayor told 
the Judiciary Committee:

       My personal and professional experiences help me listen and 
     understand, with the law always commanding the result in 
     every case.

  So we are left to wonder what has caused this contradiction, and 
whether she still believes that judges may choose to see the facts they 
want to see to get the result they want to get.
  Also, I indicated I had a concern about foreign law. Another very 
puzzling contradiction in Judge Sotomayor's testimony involves the 
issue of judges looking to foreign law when deciding cases.
  In her testimony before the Judiciary Committee, Judge Sotomayor 
said:

       I have actually agreed with Justices Scalia and Thomas on 
     the point that one has to be very cautious even in using 
     foreign law with respect to the things American law permits 
     you to.

  However, in March of this year, in a speech to the ACLU of Puerto 
Rico, she did not seem to agree with Justices Scalia and Thomas when 
she said:

       And that misunderstanding is unfortunately endorsed by some 
     of our Supreme Court justices. Both Justice Scalia and 
     Justice Thomas have written extensively criticizing the use 
     of foreign and international law . . . in Supreme Court 
     decisions. How can you ask a person to close their ears? 
     Ideas have no boundaries. Ideas are what set our creative 
     juices flowing. They permit us to think, and to suggest to 
     anyone that you can outlaw the use of foreign or 
     international law is a sentiment that's based on a 
     fundamental misunderstanding. What you would be asking 
     American judges to do is to close their minds to good ideas. 
     . . .Unless American courts are more open to discussing the 
     ideas raised by foreign cases, and by international cases, we 
     are going to lose influence in the world.

  Mr. President, I do not agree. In fact, that a nominee to the highest 
Court in our land would say that our Constitution and our statutes in 
America may be interpreted by reliance on foreign law is alarming.
  The Supreme Court is charged with deciding the constitutionality of a 
law or interpreting it in the context of our American system of 
justice, not in accordance with selectively chosen foreign laws, which 
are numerous, contradictory, and often inconsistent with American 
jurisprudence. How else would a judge choose among these various 
foreign laws and precedents other than selecting those that align with 
that judge's personal opinion?
  Mr. President, I have raised three issues today that have caused me 
very significant concern: Judge Sotomayor's interpretation of the 
second amendment right to keep and bear arms, clearly written after the 
Supreme Court of the United States has given the guidance necessary for 
us to resolve the issue; her penchant toward choosing facts, enabling a 
judge or Justice, in this case, to reach the outcomes they want 
regardless of the way the law should be applied and the outcome that 
the law would otherwise require; and her willingness to allow American 
jurisprudence to be determined at the highest levels in our land by 
reliance on foreign law, foreign cases, and foreign precedent.

  For these reasons, I cannot support President Obama's nomination of 
Judge Sotomayor to the Supreme Court. When we get to the vote on it 
this week, I will cast a ``no'' vote. I recognize the likelihood is her 
nomination will proceed and be confirmed, but it is my keen hope and 
conviction the issues I have raised and that many others have raised 
today will be heard and that, regardless of the outcome of the vote in 
the Senate this week, Judge Sotomayor, if she is confirmed, and all 
Justices on the Supreme Court will continue to recognize the 
fundamental nature of our right to bear arms under the second 
amendment; that they will focus on the proper role of judges not in 
creating law but in interpreting the law, and that they will decline to 
rely on foreign law to interpret and to create American jurisprudence.
  With that, I yield the floor and note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. WICKER. 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. WICKER. Mr. President, I wish to begin by thanking the members of 
the Judiciary Committee for conducting a thorough, fair, and respectful 
confirmation hearing. Judge Sotomayor herself stated that the hearing 
was as gracious and fair as she could have hoped. I consider that 
statement to be a tribute to Senators Leahy, Sessions and the committee 
members and their staffs and I commend them.
  Article II, section 2 of the Constitution states that the President 
shall nominate--by and with the advice and consent of the Senate--
Judges of the Supreme Court. The constitutional duty of ``advice and 
consent'' given to the Senate is of profound importance, particularly 
when considering a lifetime appointment to the Nation's highest Court. 
In reviewing Judge Sotomayor's nomination, I have taken this obligation 
very seriously.

[[Page S8814]]

  Following Judge Sotomayor's nomination by the President, I, as did 
nearly all my colleagues in this Chamber, had a private, one-on-one 
meeting with her. We had a very cordial conversation, one in which I 
found Judge Sotomayor to be likeable and gracious. I appreciated 
learning more about her background. Make no mistake, Judge Sotomayor 
has a great personal and professional story to tell. She is proud of 
it, and she certainly should be. But in the instance of a Supreme Court 
nominee, the constitutional duty of advice and consent given to the 
Senate is not about personalities, likeability or life stories. It is 
about judicial philosophy and adherence to impartiality and fidelity to 
the law.
  After careful consideration of her record, I was left with a number 
of irreconcilable concerns. I am deeply troubled by what I see as Judge 
Sotomayor's aversion to impartiality. The judicial oath requires judges 
to:

       Administer justice without respect to persons, and do equal 
     right to the poor and to the rich, and . . . faithfully and 
     impartially discharge and perform all the duties incumbent 
     upon [them] under the Constitution and laws of the United 
     States.

  To be clear, the oath requires judges to be impartial with respect to 
their social, moral and political views and to apply the law to the 
facts before them. In other words, provide equal justice under the law.
  Yet Judge Sotomayor appears to believe in a legal system where 
decisions are based upon personal experiences and group preferences, 
not the letter of the law. Judge Sotomayor has 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.

  These are her own words. She has stated many times, during more than 
a decade, that her background and personal experiences will affect the 
facts she chooses to see as a judge. In our brief meeting in June, 
Judge Sotomayor stated this notion a slightly different way, by saying 
her Latina heritage caused her to ``listen a different way.'' I find 
these to be disconcerting statements which seem to conflict with the 
impartiality that I and an overwhelming majority of Americans believe 
is essential to our judicial system and even the very bedrock 
principles our Nation was founded upon.
  In looking at her rulings, I noted that the Supreme Court has 
disagreed with Judge Sotomayor in 9 out of 10 cases it has reviewed and 
affirmed her in the remaining case by a narrow 5-to-4 margin. This 
record was demonstrated most recently in the Ricci case, where a 
majority of Justices of the Supreme Court rejected Judge Sotomayor's 
panel decision. This is a case in which a group of firefighters who had 
studied for months and passed a test were denied promotion because not 
enough minority firefighters had done as well. In a one-paragraph, 
unsigned, and unpublished cursory opinion, Judge Sotomayor summarily--
almost casually--dismissed the claims of these firefighters who had 
worked hard for a promotion.
  When discussing the qualifications he would look for in replacing 
Justice Souter, President Obama said:

       I view the quality of empathy, of understanding and 
     identifying with people's homes and struggles as an essential 
     ingredient for arriving at just decisions and outcomes.

  Empathy is a great personal virtue, but there is a difference between 
empathy as a person and empathy as a judge. Judges should use the law 
and the law only, not their personal experiences or personal view or 
empathy. Personal biases and empathy have no place in reaching a just 
conclusion under the law. Ricci is an example of where Judge Sotomayor 
clearly failed this important test.
  In addition, I am deeply concerned about Judge Sotomayor's decision 
in Maloney v. Cuomo, a second amendment case that could very easily be 
decided by the Supreme Court in the next year. In last year's Heller 
decision, the Supreme Court ruled that the second amendment guarantees 
an individual right to keep and bear arms. Yet, in Maloney, Judge 
Sotomayor relied on 19th century cases, arguably superseded after 
Heller, to summarily hold that the second amendment does not apply to 
the States. If Judge Sotomayor's decision is allowed to stand, the 
States will be able to place strict prohibitions on the ownership of 
guns and other arms. In refusing to confirm that the second amendment--
a right clearly enumerated in the Bill of Rights--is a fundamental 
right that applies to all 50 States and, thus, to all Americans, Judge 
Sotomayor shows an alarming hostility to law-abiding gun owners across 
the country. That is a view that is certainly out of the mainstream in 
this Nation.
  What is perhaps even more troubling is that Maloney is another 
example where Judge Sotomayor joined an unsigned, cursory panel 
decision. If she is confirmed to the Supreme Court, Judge Sotomayor 
will routinely hear cases raising fundamental constitutional issues 
such as Maloney. Those are the types of cases the Supreme Court hears. 
That is why issues of this nature make it to the Supreme Court. Yet 
Judge Sotomayor has a record of routinely dismissing such cases with 
difficult constitutional questions of exceptional importance to 
Americans with little or no analysis.
  As an appeals court judge, Judge Sotomayor and her rulings are 
subject to a safety net: Her cases can be reviewed by the Supreme 
Court. In Ricci, the firefighters whose promotions were denied could 
appeal the decision and receive impartial justice. There is no backstop 
to the Supreme Court. Therefore, Judge Sotomayor's elevation to our 
Nation's highest Court takes on much more significance than her 
previous selection to the appeals court.
  So let me be clear: I have tremendous respect for Judge Sotomayor's 
life story and professional accomplishments. I commend her for her 
achievements, and I wish her well in the future. However, I am not 
convinced she understands the proper role of the courts in our legal 
system. Her record and her pronouncements are those of someone who sees 
the court as a place to legislate and make policy. I am not convinced 
Judge Sotomayor truly believes in the bedrock of our judicial system, 
which is impartiality under the law. Therefore, I must withhold my 
consent and vote no on her confirmation.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Maine.
  Ms. COLLINS. Mr. President, I rise in support of the nomination of 
Sonia Sotomayor to serve as an Associate Justice of the U.S. Supreme 
Court.
  The Constitution grants the President the power to nominate and 
appoint individuals to the Federal judiciary. It also gives the Senate 
the power of advice and consent to such appointments. It does not, 
however, provide any specific guidance to the Senate on how we should 
exercise this important power.
  In a democracy, discourse and disagreement are inevitable. Some, 
including myself, would say that these ingredients are not only 
expected, they are necessary for the healthy continuation of our 
vibrant, dynamic democracy.
  Given this backdrop, disputes regarding the scope of the Senate's 
power of ``advice and consent'' are not uncommon or unexpected whenever 
the President puts forth a nominee for the Supreme Court. In fact, the 
ink on our Constitution was barely dry when the Senate rejected John 
Rutledge, one of President Washington's 13 nominees to the Supreme 
Court. Some Senators suggested they had voted against Mr. Rutledge out 
of a concern that he was losing his sanity. But the main reason for 
opposition to Mr. Rutledge appears to have been the nominee's 
opposition to the Jay Treaty with Great Britain--a treaty popular with 
the federalist-controlled Senate.
  Since Mr. Rutledge's rejection by the Senate in 1795, Senators have 
continued to grapple with the criteria applicable to their evaluation 
of Supreme Court nominees and the degree of deference that should be 
accorded to the President.
  There is no easy answer to this difficult question. Some argue that 
closer scrutiny by the Senate and less deference to the President is 
required when confirming judicial nominees, not only because Federal 
judges are in a separate branch of government but also because they 
have lifetime appointments. Thus, constitutional law scholar John 
McGinnis concludes that the text of the Constitution gives the

[[Page S8815]]

Senate ``complete and final discretion in whether to accept or approve 
a nomination.''
  Many other legal scholars, however, articulate a more constrained 
role for the Senate. They argue that the Senate's power should be 
exercised narrowly, giving extraordinary deference to the President. 
Under this standard, the Senate would not reject judicial nominees 
unless they were clearly unqualified to serve.
  Citing Alexander Hamilton's Federalist 76, those who would constrain 
the Senate's review of judicial nominees explain that the ``advice and 
consent'' responsibility was only intended as a safeguard against 
incompetence, cronyism, or corruption. As Dr. John Eastman testified 
before the Judiciary Committee in 2003, the Senate's power of ``advice 
and consent'' does not give ``the Senate a coequal role in the 
appointment of Federal judges.''
  The constitutional arguments on both sides of this question of how 
much deference to give the President are enlightening. But, as is so 
often the case, my personal belief is that the truth lies between the 
two extremes. As a Senator, I have afforded considerable deference to 
both Democratic and Republican Presidents on their Supreme Court 
nominees. In considering judicial nominees, I carefully consider the 
nominee's qualifications, competency, personal integrity, judicial 
temperament, and respect for precedent. Those are the tests I have 
applied to Sonia Sotomayor. Having reviewed her record, questioned her 
personally, and listened to the Judiciary Committee hearings, I have 
concluded that Judge Sotomayor should be confirmed to our Nation's 
highest Court.
  My decision to support this nominee does not reflect agreement with 
her on all of her rulings as a judge serving on the Second Circuit 
Court of Appeals. I disagreed, for example, with the perfunctory manner 
in which Judge Sotomayor has disposed of one case of constitutional 
consequence. Her panel's cursory analysis of the complex and novel 
questions about the 14th amendment's equal protection clause and title 
VII in the Ricci case--the case involving the New Haven firefighters, 
which has been called a reverse discrimination case--was as unfortunate 
as the decision itself. Indeed, in contrast to her panel's one-
paragraph opinion, the Supreme Court, in this case, needed nearly 100 
pages to debate and resolve just the statutory question presented--
never mind the difficult constitutional questions that were set aside 
for another day.
  But my concerns about a handful of Judge Sotomayor's rulings, as well 
as some of her prior comments over the course of her 17 years on the 
Federal bench, do not warrant my opposing her confirmation. Upon 
reading some of her other decisions, talking personally with her, 
questioning her at length, and hearing her response to probing 
questions, I have concluded that she understands the proper role of a 
judge and that she is committed to applying the law impartially, 
without bias or favoritism. Specifically, in her testimony before the 
Judiciary Committee, Judge Sotomayor reaffirmed that her judicial 
philosophy is one of ``fidelity to the law.''
  She pledged ``to apply the law,'' not to make it. She testified that 
her ``personal and professional experiences'' will not influence her 
rulings.
  There is no question in my mind that Judge Sotomayor is well 
qualified to be an Associate Justice of the Supreme Court. She has 
impressive legal experience. She has excelled throughout her life, and 
she is a tremendously accomplished person. Indeed, the American Bar 
Association Standing Committee on the Federal Judiciary--after an 
exhaustive review of her professional qualifications, including more 
than 500 interviews and analyses of her opinions, speeches, and other 
writings--unanimously rated her as ``well qualified.''
  Based on my personal review--a careful review--of her record, my 
assessment of her character, and my analysis of her adherence to 
precedent, Judge Sotomayor warrants confirmation to the High Court.
  I know I will not agree with every decision Justice Sotomayor reaches 
on the Court, just as I have disagreed with some of her previous 
decisions. I believe, however, that her legal analyses will be 
thoughtful and sound and that her decisions will be based on the 
particulars of the case before her. My expectation is that Justice 
Sotomayor will adhere to Justice O'Connor's admonition that ``a wise, 
old woman and a wise, old man would eventually reach the same 
conclusion in a case.''
  Based on her responses to the Judiciary Committee, Justice Sotomayor 
will avoid the temptation to usurp the legislative authority of the 
Congress and the Executive authority of the President. As Chief Justice 
John Marshall famously wrote in Marbury v. Madison, the Court must 
``say what the law is.'' That, after all, in a nutshell, is the 
appropriate role for the Federal judiciary. For a judge to do more 
would undermine the constitutional foundations of the separate 
branches.
  I will cast my vote in favor of the confirmation of Judge Sotomayor, 
as I believe she will serve our country honorably and well on the 
Supreme Court.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SCHUMER. Mr. President, I rise today in wholehearted support of 
the historic nomination of Judge Sonia Sotomayor to become an Associate 
Justice of the U.S. Supreme Court.
  I have two words to summarize my feelings about this nomination: It's 
time. It is time we have a nominee to the Supreme Court whose record 
has proven to be truly mainstream. It is time we have a nominee with 
practical experience in all levels of the justice system, whose 
upbringing in a Bronx housing project, whose experience as a 
prosecutor, litigator, and district court judge has enabled her to see, 
as she said in her own statement, ``the human consequences'' of her 
decisions. And it is time that we have a nominee who is Hispanic, a 
member of the fastest growing population in America. Finally, it is 
time that we have a frank discussion about what is preventing so many 
colleagues on the other side of the aisle from supporting Judge 
Sotomayor.
  In short, this is the time, and it is time. It is time we have a 
moderate nominee. It is time we have someone with a great family 
history, an American family history. It is time we confirm the first 
Hispanic Justice to the U.S. Supreme Court.
  Let's start with Judge Sotomayor's record, which is most important. 
Several of my Republican colleagues said, as they cast their votes 
against her in the Judiciary Committee, that they did not know what 
kind of Supreme Court Justice they might be getting in Judge Sotomayor. 
I find this conclusion to be confounding. Judge Sotomayor is hardly a 
riddle wrapped in mystery inside an enigma. No matter what cross 
section we take of her extensive record, down to examining individual 
cases, we see someone who has never expressed any desire or intention 
to overturn existing precedent, nor have my colleagues been able to 
point to any such case.
  Instead, we see someone who lets the facts of each case guide her to 
the correct application of the law. We see someone who does not put her 
thumb on the scales of justice for either side, even if any sentient 
human being would want to reach a different result for a sympathetic 
plaintiff.
  We know more about Judge Sotomayor than we have known about any 
nominee in 100 years. The 30,000-foot view of her record, gleaned from 
numerous studies about the way she has ruled in cases for 17 years--and 
that is the best way to tell how a judge is going to be, to look at 
their previous cases--when you look at those cases, it tells plenty 
about her moderation.
  She has agreed with her Republican colleagues 95 percent of the time. 
She has ruled for the government in 83 percent of immigration cases, 
presumably against the immigrant. She has ruled for the government in 
92 percent of criminal cases, against the criminal. She has denied race 
claims in 83 percent of cases. She has split evenly in a variety of 
employment cases.
  No matter how we slice and dice these cases, we come up with the same 
conclusion about her moderation.

[[Page S8816]]

  Within the category of criminal cases she decided, she ruled for the 
government 87 percent of the time in fourth amendment cases. This is 
important because the fourth amendment is an area where decisions are 
highly fact based and judges have discretion to decide when police have 
overstepped their bounds in executing searches and seizures. But she 
has not abused this discretion. In the overwhelming number of cases, 
she sides with the government, deciding each case carefully based on 
the facts before her.
  Let's also look further at her immigration asylum cases. There she 
ruled for the government, against the petitioner for asylum, in 83 
percent of the cases. That is also telling of her modulated approach to 
judging. Asylum law, as her colleague Judge Newman has pointed out, 
gives judges a great deal of discretion to decide who can be granted 
asylum to stay in the United States. Judge Sotomayor has not abused 
this discretion a jot.
  Given her upbringing in a Hispanic neighborhood of the Bronx, we 
might expect that her personal background would make her more, to 
borrow a term, empathetic to an immigrant seeking asylum. But the cases 
show that any perceived empathy did not affect her results. In fact, 
her 83-percent record puts her right in the middle of judges in her 
circuit.
  Even in the realm of sports cases, which are always contentious and 
closely watched, Judge Sotomayor has shown her evenhandedness. She 
ruled for the professional football league in an antitrust case brought 
by a player and against Major League Baseball when she ruled for the 
players and ended the baseball strike.
  I can go on. Judge Sotomayor voted to deny the victims of TWA flight 
800 crash a more generous recovery because that was ``clearly a 
legislative policy choice, which should not be made by the courts.'' If 
you have empathy, you certainly are going to decide with the victims. I 
met some of their families. She did not. The law did not allow her.
  Judge Sotomayor ruled against an African-American couple who claimed 
they were bumped from a flight because of their race. Again, against a 
couple, a case called King, that said they were racially discriminated 
against. She did not think the facts merited their suit.
  Judge Sotomayor rejected the claims of a disabled Black woman who 
said she was unfairly denied accommodations that were provided to White 
employees.
  My Republican colleagues did not ask her about these cases. Instead, 
they looked at her speeches, not her cases, and decided that Judge 
Sotomayor believed it was the proper role of the court of appeals to 
make policy, and they condemned her roundly for this view.
  Then they criticized her for not making policy in cases where they 
disagreed with the outcome. This occurred in three cases--in Ricci, 
which involved the New Haven firefighters, a second amendment case, and 
a case involving property rights. I guess from the point of view of my 
Republican colleagues, judicial policy making is a bad thing except 
when it is not.
  In each of these three cases they criticized, where they criticized 
the short opinions which she did not even write for herself, they said 
the ruling showed she was unable or unwilling to grapple with major 
constitutional issues. But in each of these cases, Judge Sotomayor 
agreed with the other two members of her court that the second circuit 
or Supreme Court precedents squarely dictated the result. There was no 
need for a fuller explanation. In fact, second circuit rules forbade 
panels from revisiting squarely divided precedents. In other words, in 
these cases, she was avoiding making policies. The cases were governed 
by the precedents. She was bound. They were decided by settled law. It 
was just the fact my friends across the aisle do not like what the 
settled law was. So we are getting awfully close to a double standard 
here.
  In Ricci, they wanted her to overturn the second circuit 
discrimination law. And in the gun case, they wanted her to ignore a 
100-year-old precedent that governs how the second amendment is applied 
to the States.
  In the property rights case, they wanted her to ignore the law that 
governed the statute of limitations.
  My colleagues asked Judge Sotomayor about an EPA case. In that case, 
she ruled the EPA had mistakenly considered a certain factor in 
deciding whether a company had used the ``best technology available'' 
to clean water. Even though she gave deference to EPA's interpretation 
of the law, Judge Sotomayor ruled against the government.
  Yet, my friend, Senator Sessions of Alabama, stated that one of his 
reasons for opposing Judge Sotomayor is that she exhibits liberal 
progovernment ideology. It appears that being progovernment is a bad 
thing, except when it is not.
  Let's talk about her answers to questions. Some of my friends on both 
sides of the aisle have said Supreme Court nominees need to be more 
forthcoming during the confirmation process. They fear that the 
hearings have become a little more than a choreographed Kabuki dance in 
which, as Senator Specter observed some time ago, nominees answered 
just enough questions to get confirmed.
  I have shared this concern as well. It is too easy for a candidate 
who wishes to hide his or her ideology to decline to answer questions, 
to submit to cautious coaching, and to offer meaningless platitudes--
promises that they would keep an open mind, respect the law, give 
everyone an equal chance. Of course, they would.
  Candidates with little to hide, not surprisingly, have answered more 
questions than stealth nominees who have truly been outside the 
mainstream. Examples of candidates who had nothing up their sleeves and 
answered questions in a straightforward manner include Judge Stephen 
Breyer in 1994. He answered the question posed by Senator Hatch: ``Do 
you believe that Washington v. Davis is settled law; and second, do you 
believe it was correctly decided?'' And then-Judge Ruth Bader 
Ginsburg--despite criticisms that she begged off too many questions--
answered questions about abortion precedent and Casey.
  Justices Alito and Roberts, in stark contrast, declined to answer 
question after question after question. Then-Judge Roberts would not 
answer the most basic questions about settled commerce clause 
jurisprudence. Then-Judge Alito would not say whether he thought the 
constitutional right to privacy included the holding of Roe.
  I think we can see now, and I will discuss this in more detail, that 
this was part of a strategy to play an ideological shell game.
  Now we are presented with a candidate whose views are truly moderate, 
as proven through the most copious records in 100 years. Nonetheless, 
my friend, Senator Grassley, of Iowa believes that ``Judge Sotomayor's 
performance at her Judiciary Committee hearing left me with more 
questions than answers.'' I have to respectfully disagree.
  But Judge Sotomayor, again, in addition to her full and transparent 
record, proved in her answers that she is not a stealth candidate. On 
abortion and the holding of Roe, when asked by Senator Franken: ``Do 
you believe that this right to privacy includes the right to have an 
abortion?'' Judge Sotomayor answered clearly and to the point: ``The 
Court has said in many cases--and as I think has been repeated in the 
Court's jurisprudence in Casey--that there is a right to privacy that 
women have with respect to the determination of their pregnancies in 
certain situations.'' Clear. To the point.
  When then-Judge Roberts was asked this question, he replied:

       Well, I feel I need to stay away from a discussion of 
     particular cases. I'm happy to discuss the principles of 
     stare decisis, and the Court has developed a series of 
     precedents on precedent, if you will. They have a number of 
     cases talking about how this principle should be applied.

  So who spoke clearly to the question? If you don't believe Judge 
Sotomayor did, how could you vote for Judge Roberts?
  On property rights, when asked by Senator Grassley about her 
understanding of the Court's holding in Kelo, Judge Sotomayor explained 
fully her understanding of the Court's holding, and there is a quote. 
When asked about his view of Kelo, then-Judge Alito declined to discuss 
the case. There are many more examples of how Judge Sotomayor answered 
questions about existing cases in much fuller detail

[[Page S8817]]

than the past two nominees and certainly about the key cases--property 
rights and abortion--which we debate, as we should, in this body.
  As I said at the outset, it is time. It is time for a searching 
examination of why some of my colleagues are still determined to vote 
against Judge Sotomayor. She has a remarkably moderate record, she is 
highly qualified, she answers questions, and she is a historic choice 
who will expand the diversity of the Court.
  What nominee of President Obama's would my Republican colleagues vote 
for--one who would have reached out and found that the right to bear 
arms should be incorporated to apply to the States, despite 100-year-
old precedent to the contrary; one who would have ignored the Second 
Circuit precedent and prohibited the city of New Haven from trying to 
fix a promotional exam to give minorities a better chance at 
advancement; one who declined to answer questions about existing 
precedence? In other words, an activist who was intent on changing the 
law?
  Of course, we now turn to the last refuge of objection to Judge 
Sotomayor: her statements outside the courtroom. I have always been a 
strong advocate of the principle that we consider carefully each 
nominee's entire record, including speeches and other judicial 
writings. But Judge Sotomayor is different than most because she has an 
enormous judicial record to review and consider. She is not a stealth 
candidate. There is a push and pull here in terms of what is important 
to evaluate with respect to each individual nominee. With 17 years of 
judicial opinions, 30 panel opinions, and 3,000 cases in total, how 
much emphasis should we put on the three words ``wise Latina woman,'' 
whether we disagree with them or not?
  I would submit the answer should be, compared to her copious record, 
not much. Nonetheless, by my count, my colleagues on the other side of 
the aisle asked no fewer than 17 questions about her ``wise Latina 
woman'' comment. In contrast, they asked questions of about 6--6--of 
Judge Sotomayor's cases over the course of the 3 days; 6 cases out of 
3,000 in 17 years of judging.
  I don't agree with this approach to analyzing her record. 
Nonetheless, I agree with my colleague, Senator Graham--who is voting 
for her after engaging in arguably the most searching examination of 
her speeches--that we are entitled to know who we are getting as a 
nation. He is absolutely right. Certainly it is appropriate to look at 
her speeches, but let us give them proper weight and proper context.
  And let us be clear about another thing: Judge Sotomayor is no Robert 
Bork. She is no Judge Roberts or Judge Alito. She has not made comments 
outside the courtroom that indicate her strong views on abortion or her 
views that the power of Congress must be severely curtailed or that a 
substantial body of first amendment jurisprudence should be overturned. 
Again, if the standard is extrajudicial statements, my colleagues seem 
to be using a different standard for Judge Sotomayor than the standard 
they used for judges such as Roberts, Alito, and Thomas.
  But let me give my friends some reassurance. The proof is in the 
pudding. Judge Sotomayor is and always has been a moderate judge. 
Similar to many judges across the country, she has remained neutral in 
race cases, in spite of her race; in gender cases in spite of her 
gender; in first amendment cases in spite of racist and repugnant 
speakers. The scales of justice in her courtroom are not weighted.
  Let me now conclude by discussing the precedent set by past 
nominations--more broadly, where I think my colleagues are headed and 
where we ought to be going instead. In 2001, I wrote an op-ed arguing 
that we need to take ideology into account when evaluating judges. I 
wrote that op-ed because I was astounded by the nominees President 
Bush's administration was sending to the Senate.
  The conservative movement had captured Congress and the White House 
for the first time. But even though conservatives--strong 
conservatives, hard-right conservatives--controlled these two branches, 
the hard right was not able to move the country as far to the right as 
they had hoped. So they turned to the judiciary. They couldn't do it 
with the President, even though they had elected him. They couldn't do 
it with the House or the Senate, even though, again, the hard right had 
predominated. So they turned to the one unelected branch--the 
judiciary--to advance the agenda they weren't able to move through the 
democratically elected branches of government.
  The Bush administration complied with the hard right and nominated 
judges who were so far out of the mainstream it would have been 
irresponsible for us to confirm them blindly. So we asked them 
questions about their judicial philosophy and their ideology, and our 
questions were not met with thorough answers or with a demonstrated 
record of mainstream judging but with banalities or even obstinate 
silence.

  If we tried to rank the ideology of nominees on a scale of 1 to 10, 
with 1 being all the way to the right, such as Judge Thomas, and 10 
being all the way to the left, such as Justice Brennan, I think the 
Bush nominees to the Supreme Court and court of appeals were almost 
exclusively 1's and 2's--way over. If you looked at President Clinton's 
nominees, they were somewhat left of center. But not much, mainly sixes 
and sevens--prosecutors, partners in law firms--not lawyers who had 
spent their careers in activist causes.
  President Obama has taken a different approach. He is trying to 
return the Court to the middle, to the pre-Bush days, the days of 
having judges who may not be exactly what the right wants in a judge or 
even what the left--the far left--wants in a judge. We are returning to 
the days where judges were fives and sixes and sevens--maybe fours. 
They were squarely in the mainstream. We are returning to the days when 
judges put the rule of law first.
  Somehow my Republican colleagues are aghast. The only judges they 
seem to want to vote for are ones and twos--judges who are on the hard 
right. The President is not going to nominate judges who have that 
view. After all, elections do matter.
  My colleagues say they do not want activist judges. What they mean is 
they do not want judges who will put the rule of law first. They only 
want judges who will impose their own ultraconservative views. An 
activist now seems to be not someone who respects the rule of law but 
someone who is not hard right. If you are mainstream, even though you 
are interpreting the law, you are an activist because you will not turn 
the clock back.
  We must and will continue to fight for mainstream judges.
  I have heard some say this fight isn't about Judge Sotomayor, given 
her proven record of mainstream judging and fidelity to the law. These 
commentators argue that Republicans are laying down their marker for 
President Obama's next nominee. I don't know who that nominee will be, 
but I am confident it will be a qualified candidate who is 
significantly more in the mainstream, if you take the mainstream being 
the actual place where the middle of America is--more in the mainstream 
than Justices Thomas or Scalia or Roberts or Alito or some of the 
nominations we considered under the Bush administration, such as Miguel 
Estrada or Janice Rogers Brown or Charles Pickering. I am confident the 
next nominee will be consistent with the nominees President Obama has 
been sending us--moderate, mainstream, and rule of law.
  At one point, the Republican Party argued for precedent and for 
strict construction because they wanted to push back on certain new 
precedents they thought were beyond the Constitution--precedents such 
as Roe and Miranda. But things have changed. Americans have accepted 
Roe and Americans have accepted Miranda. Now my colleagues want to 
change the law, so they have changed their methodology without changing 
the nomenclature. They still call judges activist, even though they 
want to stick to established law. I think it is a shame.
  It is a shame that some of my colleagues can't put aside their own 
personal ideology and vote for a judge whom they might not have chosen 
but who is unquestionably mainstream. It is a shame we will not have 
the kind of nearly unanimous vote in favor of this nominee that judges 
on both sides of the aisle--from Justice Ginsburg to Justice Scalia--
have received in the past. I think it is a shame the debate about this 
historic nomination has

[[Page S8818]]

been distilled to disputes over snippets of speeches.
  But we are not going to let that stop the national pride we take in 
this moment. We are not going to let it stop us from confirming, by a 
broad and bipartisan margin, Judge Sonia Sotomayor to be the first 
Hispanic Justice on the U.S. Supreme Court.
  In conclusion, as John Adams said: ``We are a Nation of laws, not of 
men.'' But if the law were just words on parchment, it would never 
evolve to reflect our own changing society. ``Separate but equal'' 
would never have been understood to be ``inherently unequal.'' Equality 
for women would never have been viewed as guaranteed under the 
Constitution's promise of equal protection under law. In fact, the 
second amendment might never have been viewed to extend beyond the 
right to possess a front-loading musket to defend, in a militia, 
against an occupying force.
  With the nomination of Judge Sotomayor, we have an opportunity--a 
noble opportunity--to restore faith in the notion that the courts 
should reflect the same mainstream ideals that are embraced by America. 
Our independent judiciary has served as a beacon of justice for the 
rest of the world. Our system of checks and balances is the envy of 
every freedom-seeking nation. As I look at the arc of Judge Sotomayor's 
life, her record, and these hearings, I am confident we are getting a 
Justice who both reflects American values and who will serve them.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona is 
recognized.
  Mr. KYL. Mr. President, every American should be proud that a 
Hispanic woman has been nominated to serve on the Supreme Court. In 
fulfilling our advice and consent role, of course, Senators must 
evaluate Judge Sotomayor on her merits, not on the basis of her 
ethnicity.
  As I noted at the beginning of Judge Sotomayor's hearing, she has a 
background that creates a prima facie case for confirmation. She 
graduated from Princeton University and Yale Law School and then was an 
assistant district attorney, a corporate litigator, a district court 
judge, and a circuit court judge.
  This background led the American Bar Association to rate her ``Well 
Qualified.'' My counterpart on the Democratic side, Senator Durbin, has 
said, ``The burden of proof for a Supreme Court Justice nominee is on 
the nominee. . . . No one has a right to sit on the Supreme Court. . . 
. It is not enough for a nominee to be found well qualified by the 
American Bar Association.''
  It is obvious that the Senate cannot just rubberstamp the ABA. This 
is why we conduct our own evaluation of the nominee's background and 
record and then attempt to resolve outstanding questions at her 
hearing.
  In evaluating a nominee, it is, of course, important to look at all 
aspects of the person's career. The nominee's prior judicial opinions 
are obviously an important consideration in this process. A lower court 
judge who issues judicial opinions that are outside the mainstream 
will, in all likelihood, continue to issue opinions that are outside 
the mainstream if promoted to a higher court.
  But even judicial opinions do not tell us the entire story, 
especially when we are considering a nominee to the Supreme Court. 
District and appellate court judges operate under the restraining 
influence of judicial review. They have a strong incentive to avoid 
aberrant interpretations of the law, otherwise they risk embarrassment 
if cases are appealed to a higher authority. This check disappears, 
however, when a judge becomes a justice on the Supreme Court. There is 
no higher authority to reign in a lifetime-appointed Justice who 
decides, for whatever reason, to adopt a strained interpretation of the 
law.
  Nor will a nominee generally be very specific about how he or she may 
rule on matters that could come before the Court.
  So it is important to examine anything else in a nominee's background 
that could shed light on how the nominee really thinks about important 
issues. One source of information is a nominee's extrajudicial 
statements in speeches and writings. In these contexts, the nominee is 
not constrained by facts of particular cases, by precedents or the fear 
of appellate reprimand, but can say what he or she really thinks.
  Before Judge Sotomayor's hearing, I studied not only her cases, but 
her extrajudicial writings, and a fraction of her speeches. I say a 
``fraction'' because Judge Sotomayor was either unable or unwilling to 
provide a draft, video, or a sufficient topic description for more than 
100 of the speeches that she identified for the Judiciary Committee.
  But even with less than a full complement of her relevant materials, 
I saw a number of things in Judge Sotomayor's decisions and speeches 
that caused me to have great concern about her ability to put aside her 
biases and to impartially render a decision to the parties before her.
  As I will explain, Judge Sotomayor's appearance before the Judiciary 
Committee did little to dispel my concerns. In many cases, her 
testimony exacerbated them.
  I was and remain particularly troubled by Judge Sotomayor's speeches 
about gender and ethnicity. The speech that has garnered the most 
attention is, of course, her ``wise Latina woman'' speech, which was 
published in the Berkeley La Raza Law Journal. As it turns out, Judge 
Sotomayor delivered this same speech, with only minor variations, on 
multiple occasions over the course of several years.
  In reading these speeches in their entirety, it is inescapable that 
her purpose was not simply ``to inspire young Hispanic, Latino 
students, and lawyers,'' as she asserted at her hearing. In fact, as 
she said at the beginning of several of these speeches, her purpose was 
to talk about ``my Latina identity, where it came from, and the 
influence I perceive it has on my presence on the bench.''
  Judge Sotomayor reemphasized this theme later in her speeches. She 
said: ``The focus of my speech tonight, however, is not about the 
struggle to get us where we are and where we need to go, but instead to 
discuss . . . what . . . it will mean to have more women and people of 
color on the bench.''
  She continued: ``[N]o one can or should ignore pondering what it will 
mean or not mean in the development of the law.'' In these speeches, 
she cited statements of some who had a different point of view than 
hers. Then she came back to her overriding theme: ``I accept the 
proposition that, as Judge Resnik describes it, `to judge is an 
exercise of power,' and because as . . . Professor Martha Minnow of 
Harvard Law School states `there is no objective stance but only a 
series of perspectives--no neutrality, no escape from choice in 
judging. . . .' ''
  I believe judges must seek objective truth as found in the law of the 
case. I do not believe in judicial relativism, so I find her comment 
alarming. The essence of judging is neutrality. That is why Lady 
Justice is depicted with a blindfold. And that is why Federal judges 
are required to swear an oath to ``administer justice without respect 
to persons, and do equal right to the poor and to the rich'' and to 
``faithfully and impartially discharge all of the duties incumbent on 
[her].'' That oath makes no allowance for a judge to choose the result 
based on his or her ``perspective.'' The oath requires exactly the 
opposite: a dispassionate adherence to impartiality and the rule of 
law.
  Now, back to Judge Sotomayor's speech. After agreeing with law 
professors who say that there is no objective stance, only a series of 
perspectives, no neutrality, Judge Sotomayor then said, ``I further 
accept that our experiences as women and people of color will in some 
way affect our decisions. . . . What Professor Minnow's quote means to 
me is not all women or people of color, in all or some circumstances, 
or me in any particular case or circumstance, but enough women and 
people of color in enough cases will make a difference in the process 
of judging. Judge Sotomayor is talking here about different outcomes in 
cases based upon who the judge is. She goes on to substantiate her case 
by citing an outcome in a State court father's visitation case and two 
studies, which tended to demonstrate differences between women and men 
in making decisions in cases. She said, ``As recognized by legal 
scholars, whatever the reason, not one woman or person of color in any 
one

[[Page S8819]]

position, but as a group, we will have an effect on the development of 
law and on judging.'' She continued: ``our gender and national origins 
make and will make a difference in our judging.''

  To recap: Judge Sotomayor announced her topic, developed the theme, 
refuted the arguments of those with a different view, and substantiated 
her point of view with some evidence. Up to this point, she had made 
the case that gender or ethnicity will have an impact on the way judges 
decide cases. She had not rendered a judgment about whether this 
influence would provide better outcomes from her perspective.
  This is the context of the ``wise Latina'' comment. Judge Sotomayor 
quoted Justice O'Connor who said that a wise old woman and a wise old 
man would reach the same decisions. But, Judge Sotomayor said, ``I am 
also not sure I agree with that statement. . . . 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.''
  Judge Sotomayor concluded, in other words, that, not only will gender 
and ethnicity make a difference, but that they should make a 
difference. She then acknowledged that some White male judges had made 
some good decisions in the past, but seemed to complain that it took a 
lot of time and effort, something that not all people are willing to 
give, and so on.
  Judge Sotomayor concluded by saying, ``In short, I accept the 
proposition that a difference will be made by the presence of women and 
people of color on the bench and that my experiences will affect the 
facts that I choose to see as a judge.'' Judge Sotomayor added, ``I 
simply do not know exactly what that difference will be in my judging. 
But I accept there will be some based on gender and my Latina 
heritage.''
  Even if the point of her speech was just to inspire young people or 
even to explore the question of whether judges could be influenced by 
their background, she should not have simply ``accepted'' that result. 
To conclude that judges could not avoid being so influenced and then 
not admonish that, of course, a judge must try his or her best to avoid 
that result, to try to set aside any bias and prejudice, was to 
abdicate her role as a judge in teaching her audiences.
  Never, not once, in her speech, did she say that the biases she 
discussed were harmful to impartial judging and needed to be set aside. 
Instead, Judge Sotomayor's speeches seem to be celebrating these 
differences, these biases. The clear and unmistakable inference in her 
speeches is that she embraces the fact that minorities and women will 
reach a different outcome, indeed, a ``better'' outcome.
  Before the Judiciary Committee, Judge Sotomayor refused to recant the 
speeches or acknowledge this egregious omission. But she did try 
desperately to convince committee members that her words conveyed a 
message other than the obvious one. Indeed, according to Judge 
Sotomayor, her words conveyed the exact opposite meaning. She said: ``I 
was talking about the very important goal of the justice system is to 
ensure that the personal biases and prejudices of a judge do not 
influence the outcome of a case. What I was talking about was the 
obligation of judges to examine what they're feeling as they're 
adjudicating a case and to ensure that that's not influencing the 
outcome.'' I've read the speeches in their entirety many times, and 
have verified that that is most certainly not what she was ``talking 
about.''

  Judge Sotomayor's recharacterization of her speeches before the 
Judiciary Committee sounds like the objective, neutral approach that 
her speech explicitly dismissed. It is hard to understand how the same 
person could honestly make both statements. They are irreconcilably 
antithetical.
  Further examples abound, but for the sake of time I will offer only 
one more. When Judge Sotomayor tried to explain her disagreement with 
Justice O'Connor's statement about how a wise old man and a wise old 
woman would reach the same conclusions, she said: ``The words that I 
used, I used agreeing with the sentiment that Justice Sandra Day 
O'Connor was attempting to convey.'' That's not true. Her explanation 
strains credulity. Both as to whether she really believes judges should 
try to set aside biases, including those based on race and gender, and 
the basic element of judicial temperament, forthrightness and fidelity 
to the oath of truth she took before the Judiciary Committee, I 
conclude she did not carry the very low burden of proof.
  I also would like to discuss another of Judge Sotomayor's speeches, 
an address to the Puerto Rican ACLU on the subject of foreign law. But 
first, I should take a moment to explain why this issue is so critical.
  There is a growing school of thought among some academics, and even 
some judges, that foreign law and practices should be used as an aid to 
understanding and interpreting our own laws and Constitution. This is 
problematic for two main reasons.
  First, as Chief Justice John Roberts pointed out during his 
confirmation hearing, the consideration of foreign law by American 
judges is contrary to principles of democracy. Foreign judges and 
legislators are not accountable to the American electorate. Using 
foreign law, even as a thumb on the scale, to help decide key 
constitutional issues devalues Americans' expressions through the 
democratic process. It is simply irrelevant, except in a very few 
specific situations.
  Second, even if the use of foreign law were not inconsistent with our 
constitutional system, its use would free judges to enact their 
personal preferences under the cloak of legitimacy.
  Against this backdrop, Judge Sotomayor delivered her April 28, 2009, 
speech entitled, ``How Federal Judges Look to International and Foreign 
Law Under Article VI of the U.S. Constitution.'' From that speech, we 
begin to see how foreign law could shape Judge Sotomayor's 
jurisprudence in the future. Her comments were not casual observations, 
but directed to this specific topic, and, presumably says what she 
means.
  After conceding that judges ``don't use foreign or international 
law'' as binding precedent in a case, she nonetheless maintained that 
foreign law could, and should, be ``considered.'' In Judge Sotomayor's 
view, foreign law is a source for ``good ideas'' that can ``set our 
[i.e., judges'] creative juices flowing.'' Putting aside for a moment 
the fact that deciding an antitrust case, or a commerce clause dispute, 
or an Indian law issue, or an establishment of religion case does not 
require ``creative juices,'' Judge Sotomayor's suggestion that judges 
consider foreign law would interfere with specific rules of 
construction or application of precedent.

  Judge Sotomayor went on in this same ACLU speech to distance herself 
from two sitting justices who are critical of judges considering 
foreign law and align her views with those of Justice Ginsburg who 
recently endorsed the use of foreign law at a symposium at the Moritz 
College of Law at Ohio State University.
  Specifically, Judge Sotomayor stated that ``[t]he nature of the 
criticism comes from . . . the misunderstanding of the American use of 
that concept of using foreign law. And that misunderstanding is 
unfortunately endorsed by some of our own Supreme Court justices. Both 
Justice Scalia and Justice Thomas have written extensive criticisms of 
the use of foreign and international law in Supreme Court decisions. . 
. .''
  She continues: ``I share more the ideas of Justice Ginsburg in 
thinking . . . 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. Justice Ginsburg has 
explained very recently . . . that foreign opinions . . . can add to 
the story of knowledge relevant to the solution of a question. And 
she's right.
  Judge Sotomayor's rationale for judges looking to foreign law--so 
that the United States does not ``lose influence in he world''--is 
astonishing. Not only is such an approach irrelevant to the role of 
judges, vis-a-vis the other branches of government, and arguably 
usually irrelevant even for the President and Congress as a yardstick 
with which to measure U.S. domestic and foreign policy, it is totally 
irrelevant to the considerations for deciding any particular dispute 
between two parties.
  In response to questions from committee members concerned about these 
kinds of statements, Judge Sotomayor again tried to drastically 
recharacterize her prior statements. She testified that her speech was 
quite clear

[[Page S8820]]

that ``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.'' But 
in April of this year, Judge Sotomayor said, ``ideas are ideas, and 
whatever their source, whether they come from foreign law or 
international law, or a trial judge in Alabama, or a circuit court in 
California, or any other place, if the idea has validity, if it 
persuades you, then you are going to adopt its reasoning.'' These two 
statements cannot be squared, even though they occurred just 2\1/2\ 
months apart.
  Later in her hearing, Judge Sotomayor gave the following testimony: 
``I will not use foreign law to interpret the Constitution or American 
statues. I will use American law, constitutional law to interpret those 
laws except in the situations where American law directs the court.'' 
While this kind of declarative statement would normally provide some 
measure of comfort, it is belied by words Judge Sotomayor uttered less 
than 3 months ago, that judges were ``commanded'' to look to 
``persuasive'' sources, including foreign law, in interpreting our own 
law. And it is even inconsistent with an exchange Judge Sotomayor had 
with Senator Schumer earlier in the hearing, in which she agreed that 
foreign law could be used for the same purposes as traditional 
interpretive tools, such as dictionaries.

  It gives me great pause that Judge Sotomayor could say one thing at a 
public speech earlier this year and say the opposite while under oath 
before the Judiciary Committee, especially since she never repudiated 
her speech.
  Finally, when Judge Sotomayor had an opportunity to reflect upon her 
testimony, review the transcript, and correct the record, she reverted 
to her former position by spinning the meaning of the word ``use.''
  Specifically, as I just noted, in her hearing before the Senate 
Judiciary Committee, Judge Sotomayor testified under oath that 
``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.'' In 
written answers submitted for the record she wrote, ``In my view, 
American courts should not `use' foreign law, in the sense of relying 
on decisions of foreign courts as binding or controlling precedent, 
except when American law requires a court to do so. In limited 
circumstances, decisions of foreign courts can be a source of ideas, 
just as law review articles or treatises can be sources of ideas. 
Reading the decisions of foreign courts for ideas, however, does not 
constitute `using' those decisions to decide cases.''
  So we are back to ``considering,'' but not ``using.'' Or is it, using 
as ideas, but not binding precedent? And if so, of what use are ideas 
if not used in some way? And if used in some way, could they influence 
the decision? I am totally baffled how she could consider foreign law 
as a source of ideas consistent with her testimony that foreign law 
should not influence the outcome of cases. Effectively, immediately 
after the hearing, she rescinded her sworn testimony regarding foreign 
law.
  Judge Sotomayor's supporters argue that we should not focus on her 
speeches, but on her ``mainstream'' judicial record. They cite all 
manner of statistics that purport to show that Judge Sotomayor agreed 
with her colleagues, including Republican appointees, the vast majority 
of the time. That may be true; but, as President Obama has reminded us, 
most judges will agree in 95 percent of all cases. The hard cases are 
where differences in judicial philosophy become apparent.
  I have looked at Judge Sotomayor's record in these hard cases and 
again have found cause for concern. The U.S. Supreme Court has reviewed 
directly ten of her decisions--eight of those decisions have been 
reversed or vacated, another sharply criticized, and one upheld in a 5-
4 decision. Indeed, just in the past 4 months, the Supreme Court has 
reversed Judge Sotomayor's panels three times. That does not inspire 
confidence.
  The most recent reversal is a case in point. In Ricci v. DeStefano, a 
case where Judge Sotomayor summarily dismissed before trial the 
discrimination claims of 20 New Haven firefighters, the Supreme Court 
reversed 5-4, with all nine Justices rejecting key reasoning of Judge 
Sotomayor's court. But in my view, the most astounding thing about the 
case was not the incorrect outcome reached by Judge Sotomayor's court; 
it was that she rejected the firefighters' claims in a mere one 
paragraph opinion and that she continued to maintain in the hearings 
that she was bound by precedent that the Supreme Court said didn't 
exist.
  As the Supreme Court noted, Ricci presented a novel issue regarding 
``two provisions of Title VII to be interpreted and reconciled, with 
few, if any, precedents in the court of appeals discussing the issue.'' 
One would think that this would be precisely the kind of case that 
deserved a thorough and thoughtful analysis by an appellate court.
  But Judge Sotomayor's court instead disposed of the case in an 
unsigned and unpublished opinion that contained zero--and I do mean 
zero--analysis. This is confounding given Judge Sotomayor's Judiciary 
Committee testimony, in which she said: ``I believe my 17-year record 
on the two courts would show that in every case that I render, I first 
decide what the law requires under the facts before me, and that what I 
do is explained to litigants why the law requires a result. And whether 
their position is sympathetic or not, I explain why the result is 
commanded by law.''
  Because her initial decision was unpublished, the case--and the 
firefighters' meritorious claims--would have been swept under the rug 
and lost forever if not for fellow Second Circuit Judge Jose Cabranes, 
who read about the firefighters' case in a local newspaper, the New 
Haven Register.
  Judge Cabranes looked into the situation, recognized the importance 
of the case, and requested that the entire Second Circuit, including 
judges who were not involved in the original decision, rehear the case. 
By a vote of 7-6, the Second Circuit denied rehearing the case, with 
Judge Sotomayor providing the seventh and decisive vote to avoid 
further consideration of her panel's decision. Fortunately for the 
firefighters, Judge Cabranes wrote a blistering dissent that no doubt 
caught the attention of the Supreme Court. He charged that Judge 
Sotomayor and her panel had ``failed to grapple with the questions of 
exceptional importance raised in this appeal.''
  Some have speculated that the Judge Sotomayor's panel intentionally 
disposed of the case in a short, unsigned, and unpublished opinion in 
an effort to hide it from further scrutiny. Was the case intentionally 
kept off of her colleagues' radar? Did she have personal views on 
racial quotas that prevented her from seeing the merit in the 
firefighters' claims? Was it is merely coincidence that the standard 
adopted by Judge Sotomayor--which in the Supreme Court's words ``would 
encourage race-based action at the slightest hint of disparate impact'' 
and would lead to a ``de facto quota system''--was consistent with 
policy and legal positions advocated by the Puerto Rican Legal Defense 
and Education Fund, an organization with which she was intimately 
involved for 12 years? In repeated speeches through the years, Judge 
Sotomayor said, ``I . . . accept that our experiences as women and 
people of color affect our decisions.'' Was this such a case?
  Judge Sotomayor was asked about her Ricci decision at length during 
the confirmation hearing. Her defense was that she was just following 
``established Supreme Court and Second Circuit precedent.'' The problem 
with this answer is that Ricci presented a novel question for which 
there were no Supreme Court precedents squarely on point. Indeed, the 
Supreme Court noted that there were ``few, if any'' circuit court 
opinions addressing the issue.
  During the hearing, I pressed Judge Sotomayor to identify those 
controlling Supreme Court and Second Circuit precedents that allegedly 
dictated the outcome in Ricci. Rather than answer the question, she 
dissembled and ran out the clock. Perhaps that was because, as 
Judge Cabranes's dissent stated, the ``core issue presented by this 
case--the scope of a municipal employer's authority to disregard 
examination results based solely on the race of the successful 
applicants--is not addressed by any precedent of the Supreme Court or 
our Circuit.'' But even

[[Page S8821]]

if we accept Judge Sotomayor's contention that there was some relevant 
Second Circuit precedent, it is quite clear that such cases would not 
bind her or other judges in considering en banc review. It is telling 
that even the Obama Justice Department found her legal position 
impossible to defend. It filed a brief in the case asking the Supreme 
Court to vacate and remand the case for further proceedings, 
essentially what the dissent favored, as well.

  The truth is that we will never know the reasons that guided the 
outcome of the case. But we know, at the very least, that Judge 
Sotomayor exercised poor judgment in dismissing serious claims in an 
unsettled area of the law without engaging in an analysis of the 
issues. As Judge Cabranes wrote in dissenting from the denial of 
rehearing en banc: ``The use of per curiam opinions of this sort, 
adopting in full the reasoning of a district court without further 
elaboration, is normally reserved for cases that present straight-
forward questions that do not require explanation or elaboration by the 
Court of Appeals. The questions raised in this appeal cannot be 
classified as such, as they are indisputably complex and far from well-
settled.''
  Clearly, Judge Sotomayor did not adequately explain to the 
litigants--or the Judiciary Committee--why the law required the result 
she supported. And she cast the decisive vote to ensure that the full 
circuit court could not review the case. Is this the kind of behavior 
we should expect of a judge who is seeking a promotion to the Supreme 
Court?
  Finally, if I had been a litigant before her court and Judge 
Sotomayor had asked me the questions I asked her about Ricci, and had I 
``answered'' them as she responded to me in the hearing, she would 
rightly have told me to either sit down or start answering her 
questions. Her ``answers'' answered nothing and, in my opinion, 
violated her obligation to be forthcoming with the Judiciary Committee
  Ricci is not the only Judge Sotomayor decision that gives reason to 
question her commitment to impartial justice. I am concerned about her 
analysis--or lack thereof--in Maloney v. Cuomo, a second amendment case 
that could find its way to the Supreme Court next year. Maloney was 
decided after the Supreme Court's landmark ruling in District of 
Columbia v. Heller, which held that the right to bear arms was an 
individual right that could not be taken away by the Federal 
Government.
  In Maloney, Judge Sotomayor had the opportunity to consider whether 
that individual right could also be enforced against the States, a 
question that was not before the Heller court. In yet another unsigned 
opinion, Judge Sotomayor and two other judges held that it was not a 
right enforceable against States.
  What are the legal implications of this holding? State regulations 
limiting or prohibiting the ownership and use of firearms would be 
subject only to ``rational basis'' review. As Sandy Froman, a respected 
lawyer and former president of the National Rifle Association, said in 
her witness testimony, this is a ``very, very low threshold'' that can 
easily be met by a State or city that wishes to prohibit all gun 
ownership, even in the home. Thus, if Judge Sotomayor's decision were 
allowed to stand as precedent, then states will, ironically, be able to 
do what the Federal District of Columbia cannot--place a de facto 
prohibition on the ownership of guns and other arms.

  Some have suggested that Judge Sotomayor's decision is not cause for 
alarm. They say that she was simply following precedent and that the 
Maloney case is not necessarily indicative of what she would do if 
confirmed to the Supreme Court. And they point to a recent decision by 
the Seventh Circuit, which similarly refused to apply the second 
amendment to State regulations. Apart from the fact that her ruling is 
now binding in the States covered by the Second Circuit, there is a 
critical difference between Judge Sotomayor's decision and that of the 
Seventh Circuit.
  While the judges on the Seventh Circuit explicitly declined to decide 
what will be the key issue before the Supreme Court--whether the Second 
Amendment's right to bear arms is, in legal parlance, ``fundamental,'' 
and therefore enforceable against states as well as the Federal 
Government--Judge Sotomayor's perfunctory decision did not leave this 
question open. Her panel specifically concluded, without any 
explanation, that the right to bear arms is in fact not a 
``fundamental'' right a conclusion that, to the best of my knowledge, 
no other court has ever reached--and that, as Sandy Froman noted, 
``would rob the Second Amendment of any real meaning and would trample 
on the individual rights of America's nearly 90 million gun owners.'' 
Indeed, Judge Sotomayor's assessment stands in stark contrast to the 
Supreme Court's own opinion in Heller, which not once but twice refers 
to the right to bear arms as ``fundamental.'' It is hard, if not 
impossible, to square these facts with Judge Sotomayor's repeated 
assertions, in sworn testimony before the Judiciary Committee, that she 
was just following precedent.

  Judge Sotomayor's opinion in Maloney is extraordinary both for its 
lack of serious analysis and for reaching an unprecedented conclusion 
that was wholly unnecessary. She could have as easily chosen the path 
taken by the seventh circuit, and reserved for the Supreme Court the 
opportunity to decide in the first instance whether the right to bear 
arms is ``fundamental.'' Or, like the ninth circuit, she could have 
undertaken a thorough analysis of the issue and determined that the 
right is, indeed, fundamental. She did neither.
  As Sandy Froman stated:

       When faced with the most important question remaining after 
     Heller, whether the right to keep and bear arms is 
     fundamental and applies to the states, Judge Sotomayor 
     dismissed the issue with no substantive analysis. . . . By 
     failing to conduct a proper Fourteenth Amendment analysis, 
     the Maloney court evaded its judicial responsibilities, 
     offered no guidance to lower courts and provided no 
     assistance in framing the issue for resolution by the Supreme 
     Court. Whenever an appellate judge fails to provide 
     supporting analysis for their conclusion or address serious 
     constitutional issues presented by the case, it is legitimate 
     to ask whether the judge reached that conclusion by 
     application of the Constitution and statutes or based on a 
     political or social agenda.

  I agree. I did not expect or even want Judge Sotomayor to precommit 
to a particular reading of the second amendment. The Judiciary 
Committee did, however, have a right to receive from her an explanation 
of the Maloney decision. At the very least she could have been more 
forthcoming in response to questions regarding recusal, but she would 
not even commit to recusing herself from the Supreme Court's 
consideration of her own Maloney decision if it were taken up as part 
of a consolidated appeal.
  I think it is fair to say that Judge Sotomayor's testimony about the 
second amendment raised more questions than it answered. The issue of 
incorporation is bound to come before the Supreme Court. Those of us 
who support the right of the people to keep and bear arms should be 
very concerned about the position she has already taken and the fact 
that she has clearly reserved the option of reviewing the case on the 
Court she could be confirmed to, particularly on a matter she has 
already decided.
  As we have seen, Judge Sotomayor's testimony about her previous 
speeches and some of her decisions is difficult, if not impossible, to 
reconcile with her record. Similarly, her testimony about the extent of 
her role with the Puerto Rican Legal Defense and Education Fund is in 
tension with the evidence we have.
  At her hearing, Judge Sotomayor tried to downplay her role at PRLDEF. 
She said:

       I was not like Justice Ginsburg or Justice Marshall. I was 
     not a lawyer on the fund as they were, with respect to the 
     organizations they belonged to. I was a board member.

  In emphasizing her role as a long-time board member, Judge Sotomayor 
deflected attention from her service in litigation-focused positions, 
such as her 8 years on the litigation committee and the 4 years she 
served as that committee's chairperson. As anyone who is familiar with 
advocacy and public interest groups can attest, it is inconceivable 
that the chair of an organization's litigation committee would not have 
a significant role in shaping the organization's legal strategy.
  Moreover, Judge Sotomayor's testimony that ``it was not my practice 
and not that I know of, of any board member'' to review briefs, is 
undermined by

[[Page S8822]]

PRLDEF's own meeting minutes. For example, on October 8, 1978:

       [Litigation Committee] Chairperson Sotomayor summarized the 
     activities of the Committee over the last several months 
     which included the review of the litigation efforts of the 
     past and present. . . .

  The New York Times has detailed her active involvement, as recounted 
by former PRLDEF colleagues, who have described Judge Sotomayor as a 
``top policy maker'' who ``played an active role as the defense fund 
staked out aggressive stances.'' According to these reports, she 
``frequently met with the legal staff to review the status of cases'' 
and ``was an involved and ardent supporter of their various legal 
efforts during her time with the group.''
  What were the litigation positions advanced by PRLDEF during Judge 
Sotomayor's tenure there? Well, it argued in court briefs that 
restrictions on abortion are analogous to slavery. And it repeatedly 
represented plaintiffs challenging the validity of employment and 
promotional tests--tests similar to the one at issue in Ricci.
  I want to return to a question I raised in my opening statement of 
Judge Sotomayor's hearing: What is the traditional basis for judging in 
America?
  For 220 years, Presidents and the Senate have focused on appointing 
and confirming judges and Justices who are committed to putting aside 
their biases and prejudices and applying the law fairly and impartially 
to resolve disputes between parties.
  This principle is universally recognized and shared by judges across 
the wide ideological spectrum. For instance, Judge Richard Paez of the 
ninth circuit--with whom I disagree on a number of issues--explained 
this in the same venue where, less than 24 hours earlier, Judge 
Sotomayor made her remarks about a ``wise Latina woman'' making better 
decisions than other judges. Judge Paez described the instructions that 
he gives to jurors who are about to hear a case. ``As jurors,'' he 
said, ``recognize that you might have some bias, or prejudice. 
Recognize that it exists, and determine whether you can control it so 
that you can judge the case fairly. Because if you cannot--if you 
cannot set aside those prejudices, biases and passions--then you should 
not sit on the case.''
  And then Judge Paez said:

       The same principle applies to judges. We take an oath of 
     office. At the federal level, it is a very interesting oath. 
     It says, in part, that you promise or swear to do justice to 
     both the poor and the rich. The first time I heard this oath, 
     I was startled by its significance. I have my oath hanging on 
     the wall in the office to remind me of my obligations. And 
     so, although I am a Latino judge and there is no question 
     about that--I am viewed as a Latino judge--as I judge cases, 
     I try to judge them fairly. I try to remain faithful to my 
     oath.

  What Judge Paez said has been the standard for 220 years. It 
correctly describes the fundamental and proper role both for jurors and 
judges.
  Before the hearing, my biggest question about Judge Sotomayor was 
whether she could abide by that standard. We spent 3 days asking her 
questions, trying to understand what she meant in some of her 
controversial speeches and what drove her to questionable conclusions 
in cases such as Ricci and Maloney.
  Judge Sotomayor did not dispel my concerns. Her sworn testimony was 
evasive, lacking in substance, and, in several instances, incredibly 
misleading.
  Her dissembling was widely noticed. Indeed, in an editorial, the 
Washington Post criticized Judge Sotomayor's testimony about her ``wise 
Latina'' statement. Here is what the Washington Post said:

       Judge Sotomayor's attempts to explain away and distance 
     herself from that 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.

  Until now, Judge Sotomayor has been operating under the restraining 
influence of a higher authority--the Supreme Court. If confirmed, there 
would be no such restraint that would prevent Judge Sotomayor from--to 
paraphrase President Obama--deciding cases based on her heartfelt 
views.
  If the burden is on the nominee to prove herself worthy of a lifetime 
appointment to the Nation's highest Court, she must do more than avoid 
a ``meltdown'' in her testimony. She must be able to rationalize 
contradictory statements--assuming she does not repudiate one or the 
other--such as the differences between her speeches and her committee 
testimony. Her failure to do that has left me unpersuaded that Judge 
Sotomayor is absolutely committed to setting aside her biases and 
impartially deciding cases based upon the rule of law.

  Judge Sotomayor is obviously intelligent, experienced, and talented. 
She represents one of the greatest things about America--the 
opportunity to become whatever you want with your God-given abilities. 
She is a role model for young women, as well as minorities, 
specifically. She is personable and, apparently, hard working. I 
respect the views of those who regard her well.
  Moreover, I appreciate her many declarations during the hearing that 
judges must decide cases solely on the basis of the facts and the law; 
and especially her disagreement with the President's erroneous, I 
believe, formulations that, in the hard cases, a judge should rely on 
empathy and what is in his or her heart.
  It may have been possible to vote to confirm her notwithstanding her 
decisions in Ricci, Maloney, and some other questionable cases. What I 
cannot abide, however, is her unwillingness to forthrightly confront 
the contradictions among her many statements, so as to give us 
confidence that her Judiciary Committee testimony represents what she 
believes and what she will do. Instead, she would have us believe that 
there is no contradiction, that she can hold onto what she said before 
in speeches and decisions--for example, that she merely followed 
Supreme Court and circuit precedent in Maloney, and that the dissenters 
in Ricci did not disagree with her reasoning--and also her testimony.
  I cannot ignore her unwillingness to answer Senators' questions 
straightforwardly--for instance, her insistence that as chair of 
PRLDEF's litigation committee, she had little to do with the 
organization's legal positions. She has not carried her burden of proof 
and, therefore, regrettably, I cannot vote to confirm her.

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