[Congressional Record Volume 155, Number 121 (Wednesday, August 5, 2009)]
[Senate]
[Pages S8822-S8851]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF SONIA SOTOMAYOR TO BE AN ASSOCIATE JUSTICE OF THE SUPREME
COURT OF THE UNITED STATES--Continued
The PRESIDING OFFICER. Under the previous order, the Senate will
resume the 1-hour alternating blocks of time with the Republicans
controlling the first hour.
The Senator from Oklahoma.
Mr. COBURN. I ask unanimous consent that the Republican time for the
next hour be allocated as follows: Myself, 15 minutes; Senator Snowe,
30 minutes; and Senator Brownback, 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COBURN. Mr. President, I rise today to discuss the nomination of
Judge Sonia Sotomayor to be a Justice on the U.S. Supreme Court. Judge
Sotomayor comes to the Senate with a compelling personal story and
notable professional accomplishments. She has worked as a prosecutor, a
corporate attorney, and then as a Federal district court and circuit
court judge. And, after meeting with Judge Sotomayor and visiting with
her, I like her. She is a very kind and affable person.
Certainly Judge Sotomayor has an impressive resume; however, the
Senate's inquiry into her suitability for a seat on the Supreme Court
does not end with her professional accomplishments. Equally important
to our providing ``consent'' on this nomination is our determination
that Judge Sotomayor has the appropriate judicial philosophy for the
Supreme Court. Judge Sotomayor needed to prove to the Senate that she
will adhere to the
[[Page S8823]]
proper role of a judge and only base her opinions on the plain language
of the U.S. Constitution and statutes. She needed to demonstrate that
she will strictly interpret the Constitution and our laws and will not
be swayed by her personal biases or political preferences. As Alexander
Hamilton stated in Federalist Paper No. 78 ``the interpretation of the
law is the proper and peculiar province of the courts. The constitution
. . . must be regarded by the judges as a fundamental law.'' Hamilton
further stated that it was ``indispensable in the courts of justice''
that judges have an ``inflexible and uniform adherence to the rights of
the Constitution.'' A nominee who does not adhere to these standards
necessarily rejects the role of a judge as dictated by the Constitution
and should not be confirmed.
With regard to judicial philosophy, the burden of proof always rests
on the nominee. But, in Judge Sotomayor's case, that burden was
exacerbated by her prior speeches and statements. President Obama
promised to nominate someone ``who's got the heart, the empathy, to
recognize what it's like to be a young teenage mom. The empathy to
understand what it's like to be poor, or African-American, or gay, or
disabled, or old.'' Senator Obama referred to his empathy standard when
he voted against Chief Justice John Roberts. He stated that the tough
cases ``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.'' She meets his standard
but not mine. The President's ``empathy'' standard is antithetical to
the proper role of a judge. The American people expect a judge to be a
neutral arbiter who treats all litigants equally. There is a reason why
Lady Justice is always depicted blindfolded and why Aristotle defined
law as ``reason free from passion.'' The judicial oath succinctly
expresses this ideal by requiring judges to swear that they ``will
administer justice without respect to persons, and do equal right to
the poor and to the rich, and . . . will faithfully and impartially
discharge and perform all the duties incumbent upon them under the
Constitution and laws of the United States.''
During her hearing, I was pleased to hear Judge Sotomayor disavow
this empathy standard. In response to a question asking whether empathy
should play a role in a judge's decision, Judge Sotomayor responded,
``We apply law to facts. We don't apply feelings to facts.'' She
further stated that she ``wouldn't approach the issue of judging in the
way the President does. . . . judges can't rely on what's in their
heart. They don't determine the law. Congress makes the laws. The job
of a judge is to apply the law. And so it's not the heart that compels
conclusions in cases. It's the law.'' While I was encouraged to hear
Judge Sotomayor's testimony, I am concerned that these statements and
her other testimony were a dramatic departure from her earlier
statements. So, I am left wondering: Which Judge Sotomayor are we
getting?
I believe a person speaks from their heart when they discuss matters
that are most important to them. On numerous occasions, most notably
when she was teaching and guiding law students and bar associations,
Judge Sotomayor made some impassioned statements about the role of a
judge, which contradict her testimony at the hearing. Speaking in 2002,
Judge Sotomayor said: ``I wonder whether achieving that goal--of
transcending personal sympathies and prejudices and aspiring to achieve
a greater degree of fairness and integrity based on the reason of law--
is possible in all or even in most cases. And I wonder whether by
ignoring our differences as women or men of color we do a disservice
both to the law and society.'' This statement is of extraordinary
concern to me. Not only does Judge Sotomayor's statement indicate that
she cannot set aside her personal sympathies and prejudices ``in most
cases,'' but she does not appear to believe that this goal is even an
admirable one.
Even more concerning, Judge Sotomayor stated prior to her hearing
that ``[p]ersonal experiences affect the facts that judges choose to
see'' and ``our gender and national origins may and will make a
difference in our judging.'' It seems to me, and I think to most
Americans, that the facts of a case are pretty clear and, if a judge is
picking and choosing the facts they see based on their personal
experiences, then they cannot possibly be impartial arbiters. I believe
President Adams said it best when he stated: ``Facts are stubborn
things . . . and whatever may be our wishes, our inclinations, or the
dictums of our passions, they cannot alter the state of facts and
evidence.'' I am disturbed that Judge Sotomayor does not agree with
President Adams's assessment.
Prior to her hearing testimony, she also stated that ``court of
appeals is where policy is made.'' This statement is in stark contrast
to her hearing testimony, and that contradiction is deeply disturbing
to me. I think Judge Sotomayor believes what she said previously in her
speeches, and when you believe in something, I think you should stand
up and defend it. You should explain why you can still be a good judge
even though you made those statements. That is what I wanted and
expected to hear from her during her hearing. I was disappointed that
she chose to dodge questions and obfuscate her record.
I was even more concerned that Judge Sotomayor reversed herself when
discussing her judicial philosophy on the use of foreign law by U.S.
judges. Results-oriented, activist judges who seek to rule based on
their personal sympathies and prejudices often look to foreign law when
interpreting our statutes and the Constitution in order to reach their
desired outcome, and so I was deeply troubled by some of Judge
Sotomayor's earlier statements that endorsed the use of foreign law by
U.S. judges. Justice Scalia succinctly articulated the problem with
using foreign law in his dissent from a recent Supreme Court opinion,
Roper v. Simmons. The majority decision in Roper cited the worldwide
``evolving standards of decency'' to strike down a statute that allowed
judges to impose capital punishment for juveniles, even for the most
heinous crimes. In his dissent, Justice Scalia asserted that the
practice of relying on foreign law inevitably leads to judicial
activism. He argued that ``[w]hat these foreign sources `affirm,'
rather than repudiate, is the Justices' own notion of how the world
ought to be, and their diktat that it shall be so henceforth in
America.''
I agree with Justice Scalia's assessment. Unfortunately, judging by
her statements, Judge Sotomayor does not. During her hearing, I asked
Judge Sotomayor about a recent speech she gave in which she stated that
prohibiting the use of foreign law would mean judges would have to
``close their minds to good ideas'' and that it is her ``hope'' that
judges will continue to consult foreign law when interpreting our
Constitution and statutes. In that speech, she condemned Justices
Scalia and Thomas for their criticism of the use of foreign law in
Supreme Court decisions stating: ``The nature of the criticism comes
from . . . a 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 extensively criticizing the use of foreign
and international law in Supreme Court decisions. . . . But, I share
more the ideas of Justice Ginsburg in thinking, . . . in believing that
unless American courts are more open to discussing the ideas raised by
foreign cases, and by international cases, that we are going to lose
influence in the world.'' In her speech, Judge Sotomayor then
specifically cited Roper v. Simmons--ruling unconstitutional a statute
permitting imposing the death penalty for juveniles--and Lawrence v.
Texas--overturning a law against same-sex sodomy--as examples of cases
where the Supreme Court used foreign law appropriately to strike down
State criminal laws.
I asked Judge Sotomayor about her statements disagreeing with
Justices Scalia and Thomas's criticism of the Court's use of foreign
law in cases such as Roper and Lawrence, and she reversed her earlier
statement saying she ``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.'' Clearly, her
hearing testimony was either inaccurate or designed to be misleading
[[Page S8824]]
since she previously said she shared ``more the ideas of Justice
Ginsburg'' who has endorsed the Court's use of foreign law in cases
such as Roper and Lawrence.
I then asked Judge Sotomayor to affirm that she would refrain from
using foreign law in making her decisions and writing her opinions,
outside of where she was directed to do so through statute or through
treaty. She stated unequivocally that she would ``not use foreign law
to interpret the Constitution or American statutes'' and she would
``not utilize foreign law in terms of making decisions.'' I was
reassured by these statements.
Regrettably, my reassurance did not last long. In her responses to
written questions following the hearing, Judge Sotomayor reverted back
to her former stated judicial philosophy regarding foreign law. She
wrote: ``In some 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.''
She further stated: ``decisions of foreign courts can be a source of
ideas informing our understanding of our own constitutional rights. To
the extent that the decisions of foreign courts contain ideas that are
helpful to that task, American courts may wish to consider those
ideas.'' This reversion is extremely troubling to me because it
suggests that Judge Sotomayor was either misleading or simply
disingenuous in her hearing testimony. Equally troubling is Judge
Sotomayor's continued concern with world opinion of American law. Prior
to her hearing she asserted 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.'' She echoed
this concern after her hearing writing: ``To the extent that American
courts categorically refuse to consider the ideas expressed in the
decisions of foreign courts, it may be that foreign courts will be less
likely to look to American law as a source of ideas.'' A judge's job is
not to consider what the rest of the world thinks about us, it is to
interpret the Constitution.
Her judicial philosophy with regard to the use of foreign law is
extremely important because it suggests that she will not strictly
interpret our Constitution. If Judge Sotomayor believes it is
appropriate to consult foreign law in some cases, where will she draw
the line? During her hearing testimony, Judge Sotomayor stated that the
right to bear arms is ``settled law''; however, the recent Supreme
Court decision in District of Columbia v. Heller left many questions
unanswered. One critical unanswered question is whether the right will
be incorporated on to the States--meaning that the States will not have
the right to outlaw the use of firearms. If confirmed, would Justice
Sotomayor be receptive to arguments that foreign countries impose
greater restrictions on gun rights and, therefore, be persuaded that
some excessive State and Federal restrictions are constitutional? As
she noted in her recent second circuit opinion holding that there is no
fundamental right to bear arms, there are very few Supreme Court cases
addressing the right to bear arms. If confirmed, would she fill in the
gaps with foreign law?
Unfortunately, I believe my fears were confirmed by her answers to
written questions following the hearing when she refused to pledge that
she would not consider foreign law when considering second amendment
cases. She stated: ``Because cases raising Second Amendment questions
are currently pending before the Court, I would not comment on how I
would decide those cases if I am confirmed.'' Her refusal to answer
that should give pause to those who, like me, cherish the fundamental
right to bear arms.
The concern that Judge Sotomayor may use foreign law to interpret the
Second Amendment is further exacerbated by her judicial record on the
bench and her hearing testimony, which demonstrates a clear hostility
to gun rights. In Maloney v. Cuomo, decided January 29, 2009--post-
Heller--Judge Sotomayor joined a cursory unsigned opinion holding that
the second amendment is not a fundamental right and also that the
amendment does not apply to the States. In Maloney, Judge Sotomayor
incorrectly relied on an 1886 case--Presser--which did not use the
modern Due Process incorporation analysis, a fact Judge Sotomayor
failed to note in her opinion. When asked at her hearing to discuss the
holding in Presser, she responded that she had not ``read it recently
enough to remember exactly'' what it said even though she had relied on
it in a decision issued a mere 7 months previously. Her disturbing lack
of familiarity with the case suggests that she did not give great
weight to the constitutional right at issue in Maloney. If Judge
Sotomayor's ruling in Maloney is upheld by the Supreme Court, States
could ban all guns and other weapons for practically any reason.
During her oral and written testimony, she also refused to
acknowledge the fundamental right to self-defense, which predates the
Constitution, and stated that she did not recall a case that addressed
the right to self-defense, despite the fact that the Supreme Court
discusses the right to self-defense at length in Heller, the opinion
upon which she relied. Judge Sotomayor even refused to discuss the
legal test the Supreme Court uses to determine whether a right is
fundamental, a basic legal test.
In another notable case about which Judge Sotomayor was questioned,
she gave short shrift to a constitutional right that is vitally
important to Americans, suggesting that she does not have the
appropriate respect for the rights guaranteed by the fifth amendment.
In Didden v. Village of Port Chester, Judge Sotomayor extended the
government's power to take private property in a cursory opinion that
one property professor said was the ``worst federal court takings
decision since Kelo.'' He further stated that the opinion is ``very
extreme'' and ``is significant as a window into Judge Sotomayor's
attitudes toward private property.'' Another notable professor said the
opinion is ``a disappointment'' and is ``wrong and ill thought out''
and is ``about as naked an abuse of government power as could be
imagined.'' Those are strong criticisms from respected legal scholars
and nothing in Judge Sotomayor's testimony reassured me about her
opinion in the Didden case.
Following the hearing, I remain concerned that Judge Sotomayor's
hostility to gun rights, abortion restrictions, and property rights,
among others, stem from a ``personal prejudice'' that will influence
her decisions once she is untethered from precedent. It is true that
she has an extensive record on the bench; however, the Senate's inquiry
into Judge Sotomayor's suitability for the Supreme Court cannot merely
rest on an overview of the cases she decided when she was constrained
by precedent. Judge Sotomayor's extra judicial statements are
critically important to our examination of her fitness for a seat on
the Supreme Court because when a judge is free from the confines of
precedent--as she was in her speeches and as she will be if she is a
Supreme Court Justice--she shows her true colors and passions.
So the question remains, which Judge Sotomayor are we getting? Will
Judge Sotomayor follow in the footsteps of Justice Ginsburg or will she
adhere to her testimony during her hearing that she will strictly apply
the law to the facts? Will she revert back to the judicial philosophy
she espoused prior to the hearing, the same way she reverted back to
her prior statements on the use of foreign law by American judges?
Because I am not convinced that she can put aside her personal politics
and preferences, I regretfully must oppose her nomination.
I am pleased to come to the floor today to talk about our Supreme
Court selection process. Judge Sotomayor is the third Supreme Court
candidate I have had the privilege of getting to know, interview, and
ask rigorous questions of during the hearing. She has a miraculous and
wonderful personal story. She is very accomplished. She is to be
admired for what she has accomplished.
When we look at Supreme Court nominees, we are actually charged to do
two things. One is to look at their record of judicial behavior and
assess it, and then also to look at their record that is out there
besides their judicial decisions. We did a very thorough job in
analyzing her 15-plus years as a Federal judge and appellate judge.
There
[[Page S8825]]
were some very concerning cases that we encountered for which we
questioned her, and the record will fully show her defense of that
record and the reversal rate that she had at the U.S. Supreme Court.
It is interesting for the American public to know that a Supreme
Court Justice is much different than an appellate judge or even a
Federal circuit judge because they, in fact, are not bound by
precedent. As an appellate judge they have to follow precedent, and
when they don't they get reversed, and Federal circuit judges have to
follow precedent or they get reversed. But a Supreme Court Justice has
the freedom to change precedent, and that is why the inquiry into the
candidacy and the qualifications of a Supreme Court nominee is so
important. It is also why our Founders wrote extensively on what should
be the qualifications of a Supreme Court Justice.
Alexander Hamilton stated in Federalist Paper No. 78: ``The
interpretation of the law is the proper and peculiar province of the
courts.''
He further stated that it was ``indispensable in the courts of
justice'' that judges have an ``inflexible and uniform adherence to the
rights of the Constitution.'' A nominee who does not adhere to these
standards necessarily rejects the role of a judge as dictated by the
Constitution and should not be confirmed.
When we look at the Constitution, we are told in the Constitution how
judges are to decide cases. They are given three strict parameters. One
is they are to look at the Constitution each and every time. No. 2 is
they are to look at the statutes that have been passed by the people's
representatives, and they are to look at the facts. They are to look at
the facts in a way that will show never a bias--in other words, blind
justice--looking at those critical factors of what are the facts of the
case, what is the law, and what does the Constitution say.
You can be an appellate court justice for 50 years in this country
and still not qualify to be a Supreme Court Justice. It is tremendously
important who goes on the Supreme Court. The reason it is important is
because we have had a tendency in the last three decades to abandon
those three principles and use other principles.
Let me mention two of them. One is that we consider foreign law, that
we can become enlightened with foreign law. I don't doubt that we can
become enlightened with what other people in the world think about law,
but the fact is our Founders said: This is our law. The Constitution is
our law. And we have a way of setting law which comes through the
Congress. That is what we shall look at with one exception, and that is
on trade and treaties where we have to consider the agreements and
foreign laws related to those treaties.
The other tendency which has been espoused by our President is an
empathy standard, that we can somehow--other than looking at the three
main parameters of which our Founders told us we must use in deciding
cases at the Supreme Court. Well, I will tell you that a standard other
than looking at the facts and looking at the law and looking at the
Constitution doesn't meet the test of our Founders nor does it meet the
test of our Constitution as it is spelled out in our Constitution.
I wish to say as an American citizen, I think we should all be proud
of this nomination: a Hispanic female coming to the Supreme Court. But
that is not a good enough reason to say somebody should become a
Justice. So I go back to those three founding principles of who should
qualify. And who should qualify is somebody who is going to strictly
adhere to what our Founders said was the job of a Supreme Court
Justice, not with parameters that have been discussed as maybe to be OK
or parameters that fall outside of what our Founders said.
During my questioning and my visits with Judge Sotomayor, I found
some very disturbing things. I asked her specifically in the hearing:
Do individuals have a fundamental right to self defense? She wouldn't
answer yes to that question. Now, a fundamental right to self-defense
predates our Constitution. That is what liberty is all about. That is
one of the bedrocks of our liberty. And the fact that she will not
agree that we as U.S. citizens have a fundamental right to self-defense
is extremely troubling.
The reason that fundamental right is so important, and it is
guaranteed in the Constitution, is because on that rests the second
amendment for which I find her somewhat less than comfortable in
accepting what our Founders said in the second amendment, adopted
almost 200-and-some-odd years ago.
The second area I have concern with is in the area of property
rights. It is very explicitly stated, and it is clear except in two
cases in this country in the Supreme Court, which I hope that someday
will be reversed, that our right to property is a real right. There was
a Kelo decision that has markedly limited American citizens' rights to
property. On both her cases and her comments and her written testimony,
I believe that right of Americans is at risk. I believe judges are
going to decide we don't have that fundamental right. I believe she
believes, based on what she has ruled and what she has written and what
she has said, that, in fact, there are times when judges can decide
whether we have that right. That is inherently wrong and 180 degrees
against what our Constitution guarantees us as individual citizens.
The final area has to do with the use of foreign law. In her speeches
and statements she was highly critical of people who were critical of
the use of foreign law. Upon questioning in the committee, she
retracted and moved away from those statements. I specifically asked
her if she would assure the committee that she would, in fact, never
use foreign law to decide U.S. cases. I got her to say yes.
The only problem with that is, in the answer to questions following
the hearing, she backtracked 180 degrees from that statement which
matched her previous statements in speeches and writings which caused
me to ask the question in the first place. So in the area of property
rights, in the area of the second amendment and the fundamental right
to self-defense, and in the area of foreign law, I believe her
viewpoint is something other than what I see in the Constitution.
Regrettably, I believe that disqualifies her from being a Justice of
the Supreme Court. That when, in fact, we look at the constitutional
basis of how judges are instructed to make law and to decide law--
because every decision makes law; it sets precedent--that when we
extract from that the fundamental right of self-defense, the written,
specific right to the second amendment, the written specific right of
property ownership and due process associated with that, and then we
lay on top of that the idea that it is more important for us to look
good in our decisions to foreign governments than it is to follow the
oath, to follow the Constitution of the United States--make no mistake,
I believe this is a wonderful woman, and I think she has done a fairly
good job as a judge on the appellate court, but she has been
constrained--as we measure her writings and her words with her
decisions on cases, what we find is a conflict for those who would
strictly follow what the Constitution tells us.
I want our grandchildren to endure and to accept and hold the same
freedoms we have. A U.S. Supreme Court Justice will determine that;
just one can determine that. So I regretfully announce and state that I
will not be able to vote for this very fine woman. But I would also
state that we need to be very concerned and very vigilant as we see the
Supreme Court make decisions, whether they are sitting Justices today
or Justices to come, who violate both the intent, instruction, and the
spirit of the U.S. Constitution.
With that, I yield the floor and note the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Ms. SNOWE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Ms. SNOWE. Mr. President, I rise to speak to the nomination of Judge
Sonia Sotomayor to be the next Associate Justice of the Supreme Court
of the United States.
After a careful and considerate review of her testimony before the
Senate Judiciary Committee and her overall record, her distinguished
judicial background, and a personal meeting
[[Page S8826]]
with her in June, I have concluded she should be confirmed as the next
Associate Justice of the Supreme Court.
I have not arrived at my decision lightly. It has been said that, of
all the entities in government, the Supreme Court is the most closely
identified with the Constitution--and that no other branch or agency
has as great an opportunity to speak directly to the rational and moral
side of the American character; to bring the power and moral authority
of government to bear directly upon the citizenry.
The Supreme Court passes final legal judgment on the most profound
social issues of our time. The Court is uniquely designed to accept
only those cases that present a substantial and compelling question of
federal law; cases for which the Court's ultimate resolution will not
be applied merely to a single, isolated dispute--but, rather, will
guide legislatures, executives, and all other courts in their broader
development and interpretation of law and policy.
In the end, ours is a government of both liberty and order, State and
Federal authority, and checks and balances. The remarkable challenge of
calibrating these fundamental balance points is entrusted ultimately to
the nine Justices of the Supreme Court of the United States.
To help meet this extraordinary challenge, any nominee for the Court
must, as I stated during the confirmations of Chief Justice John
Roberts and Associate Justice Sam Alito, have a powerful intellect, a
principled understanding of the Court's role, and a sound commitment to
judicial method. A nominee must have the capacity to engender respect
among the other justices in order to facilitate the consensus of a
majority. And to warrant Senate confirmation, the nominee must have a
keen understanding of, and a disciplined respect for, the tremendous
body of law that precedes her.
It is with these high standards that we should evaluate the record of
Judge Sonia Sotomayor. Reviewing her professional credentials, it is
clear that Judge Sotomayor is well qualified. She has served for nearly
11 years on the U.S. Court of Appeals for the Second Circuit where she
has participated in over 3,100 cases. The judge also previously served
on the U.S. District Court for the Southern District of New York for
six years where she decided over 400 additional cases. She also worked
for 8 years in private practice and 4 years in the highly respected
office of the district attorney for the County of New York. According
to the White House, if confirmed, Judge Sotomayor would bring more
Federal judicial experience to the Supreme Court than any Justice in
100 years, and more overall judicial experience than anyone confirmed
for the Court in the past 70 years. So I applaud the President for
selecting an individual who clearly possesses the professional
credentials to serve on the Court.
In reviewing her personal credentials, Judge Sotomayor's
accomplishments are equally noteworthy. If confirmed, she will become
the first Hispanic and only the third woman ever to serve on our
Nation's highest Court. Along the way, she has ascended from modest
means to excel in our country's most prestigious schools and our
judiciary's highest offices. In doing so, she now stands as a model for
others to follow in summoning their own courage to break barriers and
pursue dreams. And she does so with a personal manner that I find to be
refreshingly candid and forthright.
This brings us to the more particular factors we must consider when
providing our consent on a President's nominee for Associate Justice--
judicial temperament, methodology, integrity and philosophy. By their
very nature, these attributes are often challenging to measure, but
they can be ascertained through a careful analysis of a nominee's
complete record.
With regard to the first consideration, judicial temperament, we all
agree that it is absolutely essential that a judge be fair, open-
minded, and respectful. Our citizens simply must have confidence that a
judge who weighs their legal claims does so with an even temperament. A
judge must be truly committed to providing a full and fair day in
court, while projecting a sincere equanimity and respect for the law.
When these attributes are not clearly present in our judges, the public
justifiably begins to lose faith in the integrity of our courts.
This issue has been rightly explored and satisfactorily answered with
Judge Sotomayor. For example, both the New York City and American Bar
Associations who reviewed the nominee on all key criteria gave the
judge their highest ratings. Robert Morgenthau, the judge's former
employer and highly regarded district attorney of New York County since
1975, testified that the judge is ``fair,'' ``non-political,'' and
``highly qualified for any position in which a first-rate intellect,
common sense, collegiality and good character would be assets.'' And
former Federal judge, colleague, and FBI Director Louis Freeh, has
called Judge Sotomayor ``fair, neutral, nonpartisan [and] open-minded .
. .'' And, indeed, I believe that the Judge's professional manner was
in evidence during all aspects of her 4-day appearance before the
Judiciary Committee.
We look next at the nominee's judicial methodology which directly
reflects her commitment to the essential tenets of care, discipline and
fairness. Here, the judge was very clear and direct in our June
meeting. Her approach to all cases is to carefully identify the facts--
what she characterized as a prized skill that she learned as a
successful young prosecutor--and then follow the law: What it says;
what end was meant to be accomplished; what legislative intent it was
meant to advance; and how, if at all, other courts have answered those
questions.
As the judge elaborated, she believes that the law can and should
develop, but that such development should occur only ``incrementally''
through the measured development of analogous cases. And when I asked
her which opinions best reflect her judicial method, Judge Sotomayor
candidly replied, ``Read any of my opinions and you will see my
structure.'' And the record supports that assertion--the structure of
her opinions shows a consistent, methodical and careful approach to
deciding cases.
As she testified at her hearing, her methodology is to ``apply the
law to the facts at hand'' and keep a ``rigorous commitment to
interpreting the Constitution according to its terms; interpreting
statutes according to their terms and Congress's intent; and hewing
faithfully to precedents . . .'' She stated further her view that the
``process of judging is enhanced when the arguments and concerns of the
parties to the litigation are understood and acknowledged. . . . That
is why,'' she explained, ``I generally structure my opinions by setting
out what the law requires and then by explaining why a contrary
position, sympathetic or not, is accepted or rejected. That is how I
seek to strengthen both the rule of law and faith in the impartiality
of our justice system.''
Indeed, the integrity of the judge's methodology can be measured in a
variety of ways. First, the judge has a low reversal rate. Research on
Judge Sotomayor's performance on the trial court demonstrates she was
overruled in only 6 of her over 400 trial bench decisions. Westlaw
reports that, in her 11 years on the appellate court, the judge has
participated--as I referenced earlier--in over 3,100 cases and, of
those cases, the White House reports that the Judge has only been
reversed another six times. In each of those circuit cases she was part
of a unanimous three-judge panel, and the cases involved the
interpretation--not of important constitutional provisions--but of very
technical statutes that, in several instances, had created clear
divisions of opinion among several of the circuit courts.
Moreover, three of the six circuit cases created 5-4 opinions in the
Supreme Court, one created a 6-3 split, and one produced this unusual
alignment: Justices Ginsburg and Scalia together in the majority, and
Justices Breyer and Alito together in dissent. These facts combine to
show the relative difficulty of, and the reasonable room for debate in,
these appellate cases.
Next, there is the measurement of the judge's concurrence and dissent
rates. There, the data demonstrate that the judge's method of deciding
cases is consistent with that of her colleagues on the Second Circuit.
For example, research sources indicate that, despite the thousands of
her appellate opinions, Judge Sotomayor has only dissented in 21 cases,
and has written
[[Page S8827]]
separate concurring opinions in only 22 others.
Finally, there is the degree to which other courts and scholars find
the judge's method of decision worthy of citation. There, data compiled
by law professors and students from three universities reveal that,
between 1999 and 2001, the judge's opinions were cited by other courts
and scholars at meaningful rates--4.4 court citations and 4.6 law
review citations per opinion. And between 2004 and 2006, those rates
rose to 8.5 court citations and 4.8 law review citations per opinion.
These more recent rates are not only higher than the percentage of
citation rates for other distinguished Federal appellate judges, they
underscore the increasing respect that Judge Sotomayor's work is
garnering.
I turn now to the third qualification: judicial integrity. Here,
there are those who have suggested that the judge will use her office
to engage in ``judicial activism'' and advance a certain social or
political agenda that suits her personal preferences. Principally,
these critics point to the New Haven firefighters' case and her
Berkeley and Duke speeches as examples of such activism, and I believe
these instances have warranted strict scrutiny.
At the outset, it bears noting the White House report that, in her 11
years on the Second Circuit, Judge Sotomayor has agreed with the result
favored by the Republican appointees in 95 percent of the published
panel decisions where the panel included at least one judge appointed
by a Republican president. This statistic is evidence of a nonpartisan
or nonideological approach to judging.
At the same time, I have shared the concerns expressed specifically
about the New Haven firefighters' case--as many have voiced opposition
to both her decision as well as the curt and summary opinion that was
used to dismiss the complaint. I sympathize with the plaintiffs, who
were told the rules for qualifying for a promotion, who believed they
were participating in a fixed process for determining their future
career advancement, who did what was asked of them, and then, when it
was all over, were informed that what they had done wasn't good enough.
So I understand the frustration.
I approached Judge Sotomayor's handling of this case by looking at
both the merits--that is, what was decided in the case, as well as the
process, or how, the case was decided. As regards the process, as we
all well know, the panel that included Judge Sotomayor wrote only a
three-paragraph opinion concluding that, ``We affirm, for the reasons
stated in the thorough, thoughtful, and well-reasoned opinion of the
court below.''
Now, it may well be that the district judge's opinion was ``thorough,
thoughtful, and well-reasoned.'' But the confidence of the litigants
and public alike in any court relies on their opportunity to explore a
judge's rationale. And the panel's summary affirmance, albeit adopting
verbatim the long opinion of the court below, simply failed to meet
that expectation.
When I asked Judge Sotomayor in our June conversation--and when she
was queried before the Judiciary Committee--she stated that she and her
colleagues gave the case their full attention and review, and that only
after that full and fair consideration did they determine that their
own written opinion was not necessary, given the district court's
exhaustive 48-page opinion applying the seemingly clear ``four-fifths
rule'' of the EEOC regulations and the seemingly settled precedent of
what the Judge referred to in her testimony as the Bushy line of
cases--this is Bushy v. New York State Civil Service Commission,
Kirkland v. New York State Department of Correctional Services, and
Hayden v. County of Nassau. In reviewing a petition for rehearing in
Ricci, six of the Judge's own colleagues were not persuaded by that
argument. Yet, another six of her colleagues were so persuaded.
Additionally, the judge testified before the Judiciary Committee that
``the practice is that about 75 percent of circuit decisions are
decided by summary order, in part because we can't handle the volume of
our work if we were writing long decisions in every case; but more
importantly, because not every case requires a long opinion if a
district court opinion has been clear and thorough on an issue . . .''
Yet, the bottom line is, in my view, this particular case was simply
too sensitive and complex--with significant societal implications--to
leave to a summary order. And, therefore, the three-judge panel should
have issued its own, comprehensive opinion and explanation.
On the matter of the merits of the case, Judge Sotomayor ruled that
the city acted lawfully in trying to meet its obligations under Federal
employment discrimination law to avoid disparate impact discrimination
when making certain employment promotions. And I understand some
believe this decision evinces the judge's predisposition to rule for
minority litigants. One well-respected DC law firm, however, has found
that the judge has decided nearly 100 race-related cases in her 11
years on the Second Circuit, and has effectively rejected such race-
related claims by a margin of ``roughly eight to one.''
Others have suggested that the Supreme Court's reversal of the Second
Circuit raises questions of the judge's qualifications to serve. In
evaluating that possibility, I have taken into account that the Supreme
Court took this action with a 5-4 vote, with four complex and nuanced
opinions, as well as an admission from Justice Scalia that the
underlying question presented by the case--when affirmative action
becomes unlawful discrimination--is ``not an easy one.''
And I have considered that the High Court reached its decision only
by identifying and applying an entirely new standard. Indeed, both the
trial and Sotomayor courts applied the then-existing ``four-fifths
rule'' of the EEOC title VII regulations and the seemingly settled
circuit precedent of the ``Bushy line of cases'' in determining that a
significant disparity in the results of an employment test is itself
adequate evidence of unlawful disparate impact discrimination.
On appeal, the Supreme Court changed the rule, saying in essence that
such a significant disparity in test results is no longer itself
adequate evidence. Importing anew from 14th amendment jurisprudence,
the Court said that the new rule for interpreting the title VII statute
demands a ``strong[er] basis in evidence,'' such as evidence that the
test was ``not job related and consistent with business necessity, or
if there existed an equally valid, less discriminatory alternative that
served the city's needs but that the city refused to adopt.''
Therefore, based on the record, it would appear the district and
circuit judges fulfilled their assigned job of applying existing
precedent to the existing rule. And in weighing all of the facts, given
Judge Sotomayor's assurance to me and the committee that she gave the
case her full consideration, given her established reputation for
careful decision-making, and given the daily reality of the Second
Circuit's burgeoning caseload, particularly with the surge of post-
September 11 immigration cases, I cannot conclude that the decision in
Ricci should itself disqualify this nominee.
Mr. President, I was also concerned--like many Americans--by Judge
Sotomayor's speech at Berkeley in 2001, and specifically by the
following line that appears to suggest that the judge decides cases
more by personal identity than by fidelity to the law:
I would hope that a wise Latina woman . . . would more
often than not reach a better conclusion than a white male. .
. .
To thoroughly examine this question with regard to the judge's
qualifications, I believed it was necessary to review both the entirety
of her speech, as well as her testimony before the Senate Judiciary
Committee, to understand to the fullest extent possible her intention
behind those comments, because I agree that they are disconcerting.
In that light, I note that the judge, in answering a question from
the committee, offered that it is the job of a judge to apply the law,
and that it is the law, rather than one's own sympathies, that
``compels conclusions in cases.''
I also recall the judge's response when I asked her specifically
about this speech during our opportunity to meet one-on-one. I said
that commentators had criticized that portion of her speech because it
suggested that gender and ethnicity enable her to make ``better''
decisions than a male judge of a different ethnicity. Judge
[[Page S8828]]
Sotomayor, in replying, suggested that those who have concerns must
``read the whole speech;'' that she was only trying to say--she admits
now inartfully--that ``judges are human beings and they necessarily
will be affected by who they are. But this only makes them attuned to
certain case aspects; it does not replace following the law.''
In evaluating these responses, I recalled prominent judges in our
history who also raised this issue.
Indeed, this was the subject to which Justice Felix Frankfurter
referred to when he said, long ago, that one of the greatest challenges
for all judges, because they are all human, is to recognize their own
personal views and develop the patience, insights and discipline to
compensate for them. When I raised Justice Frankfurter's comments
personally with Judge Sotomayor, she agreed and asserted that was
``exactly'' the point she was attempting to communicate in her Berkeley
speech.
She also asserted in our meeting, and reaffirmed in her committee
testimony that, ``no racial or ethnic group has a market on sound
judgment.'' She explained that some judges, like many lay people, have
``tin ears'' on certain matters, and that is why the collegial
decision-making is so vital--because sharing different perspectives and
blending them into consensus opinions serves as both a ``spotlight and
a filter.'' She spoke of how judges, like all people, are inescapably
affected by their own life experiences, but that those experiences only
affect how ``attuned'' judges are to certain aspects of cases. They do
not replace the requirement to follow and apply the law consistent with
the limited role and specific oath of their office.
A review of Judge Sotomayor's decisions and her resulting affinity,
dissent and reversal rates that I described earlier bolster the judge's
statements that she understands this imperative--and that she decides
cases based not on personal identities or classifications, but by
``fidelity to the law.''
A final question about the judge's judicial integrity has been raised
from her remark in 2005 at Duke University that the ``Court of Appeals
is where policy is made.'' This comment has understandably raised the
specter of a commitment to judicial activism, and is therefore a
legitimate cause for examination. When I raised this issue with the
judge she responded that she was referring to the educational
difference between trial and appellate court clerkships--how a trial
court clerkship focuses primarily on resolving limited factual disputes
and how an appellate court clerkship focuses primarily on cases
involving broader questions of how the law ought to be interpreted.
An essential component of weighing the competing interpretations
proffered by appellate advocates is for the court to understand the
practical effect of the advocates' competing arguments. It is this
understanding that defines the scope and reach of the possible
interpretations. I believe it is therefore legitimate to read and
understand her comments within this context. It has also been argued
that--as the Supreme Court only accepts and decides about 80 of
approximately 8,000 cases per year, Federal circuit courts of appeal
often do, as the judge noted in her testimony effectively become the
final decisionmaker on what the law--and by necessary extension, the
policy it advances--is.
Given all of these factors, again, in considering the entirety of her
record, it is fair to conclude that the Duke University speech is not
evidence that Judge Sotomayor would practice judicial activism on the
Supreme Court.
Finally, we have a fourth and final qualification--judicial
philosophy, judge's sense of limits and horizons and great promises of
our Constitution and the nominee's view of the proper role of the
Supreme Court in deciding whether to take cases and, once taken, the
underlying philosophy used to rule upon them.
On this point, I note first the judge's answer when asked whether she
subscribes to one or another school of constitutional interpretation.
She said: ``I don't use labels.'' I also recall the study by the New
York University Law School's Brennan Center for Justice which analyzed
over 1,100 constitutional cases decided during Judge Sotomayor's tenure
on the second circuit and found as an appellate judge, she voted with
the majority in over 98 percent of constitutional cases and that 94
percent of her constitutional decisions have been unanimous. Such
figures argue strongly that the judge's constitutional approach is
squarely in the mainstream.
The inquiry into any nominee's judicial philosophy is particularly
significant for those of us who value the Court's landmark rulings.
Decisions protecting the rights of privacy, civil rights, and women
seeking equal protection in the workplace--to name a few--comprise a
crucial and settled body of the Court's case law. Entire generations of
Americans have come to live their lives in reliance upon the Court's
rulings in these key areas, and overruling these precedents would
simply roll back decades of societal advancement and impose substantial
disruption and harm.
Therefore, central to the question of this nominee's judicial
philosophy are her views on one of the cornerstones of jurisprudence,
and that is judicial precedent.
In our June meeting, I asked whether she agreed with Chief Justice
Rehnquist's observation in Dickerson v. United States which upheld the
famous decision Miranda v. Arizona. There, the Chief Justice wrote
there are situations where constitutional precedent--that a Justice
might have believed had been wrongly decided--should nevertheless be
upheld because the people have accepted the principle of the decision
as an ``embedded . . . part of our national culture.'' Judge Sotomayor
agreed with that position.
This expressed adherence to applying precedent has achieved
significance in many passionately contested areas of the law, such as
the second amendment, which brings me to the concerns raised with
respect to Judge Sotomayor's decision in Maloney v. Cuomo. I happen to
be a strong, long-time defender of second amendment rights, as
evidenced by my amicus support for Mr. Heller in his recent case before
the Supreme Court, in District of Columbia v. Heller. Accordingly, I am
very well aware the issue of whether second amendment protections are
to be construed as incorporated against acts of a State government--as
opposed to the Federal Government--has assumed renewed importance and
visibility since the Court's recent landmark decision ruling in Heller.
I also understand that several longstanding Court precedents have
been widely construed by State and Federal courts around the country,
including the Maine Supreme Judicial Court, not to incorporate the
second amendment. Judge Sotomayor in Maloney v. Cuomo, and her two
panelists, have stated that those consistent interpretations of the
Supreme Court's precedent were binding upon them. And while a panel in
the ninth circuit in Nordyke v. King bypassed such precedent, a seventh
circuit panel, led by Judge Shakley, sharply criticized the Nordyke
decision for doing so, and instead in NRA v. City of Chicago agreed
with Judge Sotomayor's opinion because they, too, concluded that the
Supreme Court's precedent was binding upon them. Last week, the full
ninth circuit itself agreed to reconsider its decision in the Nordyke
decision.
The Supreme Court may well revisit this issue soon. But the issue
before us in the Senate right now is whether the judge has
demonstrated, as she describes, ``fidelity to the law'' and precedent
as we would expect--because several longstanding Supreme Court
precedents have been widely construed by State and Federal courts alike
not to incorporate the second amendment, and because the Supreme Court
in footnote 23 of the Heller majority opinion expressly said the Court
was not deciding the incorporation question. Moreover, given her
demonstrated adherence to stare decisis, while no one can predict the
future with certainty, it is reasonable to conclude she will continue
to follow precedent, as also evidenced by her testimony to the
Judiciary Committee in which she stated:
The Supreme Court did hold that there is in the second
amendment an individual right to bear arms. And that is its
holding, and that is the Court's decision. I fully accept
that.
Finally, what a powerful and profound message it will send to have
Judge Sonia Sotomayor join with Justice Ruth Bader Ginsburg on the
highest Court in the land. The fact is, it
[[Page S8829]]
does make a difference who women and girls see at the pinnacles of
government, just as it matters in all fields of endeavor. As Justice
Ginsburg has said recently:
My base concern about being all alone was the public got
the wrong perception of the Court. It just doesn't look right
in the year 2009 . . . It matters for women to be here at the
conference table to be doing everything that the Court does .
. . Women belong in all places where decisions are being
made.
Given the totality of the record before us, I have concluded from
Judge Sotomayor's testimony regarding both her judicial methodology and
her judicial philosophy that she is not predisposed to overturning
settled precedent. Obviously, none of us can know with certainty how
Judge Sotomayor would vote on any particular case. But we can assess
her methodology and analysis in approaching cases by reviewing her
responses to the committee and to other Members throughout this
process.
In that light, in evaluating the essential qualifications as I have
outlined them, and reviewing the entire judicial record of Judge
Sotomayor, I find a fairminded judge with a deep respect for the rule
of law and the independence of the courts, and a judicial method
committed to stability in the law. It is, therefore, my conclusion that
based on the totality of the record and her distinctive qualifications,
Judge Sonia Sotomayor has earned the distinction of serving as the next
Associate Justice of the Supreme Court.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. I ask the Presiding Officer to inform me when 2
minutes is left of my time.
Mr. President, I rise today to discuss the nomination of Judge Sonia
Sotomayor to be a Justice of the U.S. Supreme Court. Ultimately, the
core of this debate, I believe, is over the proper role of the Court.
Our side tends to believe that the Court does not make policy and must
stay within the written text of the Constitution. The other side sees
the Constitution more often as a living document and that its meaning
changes along with the attitudes of society.
When the courts improperly assume the power to decide issues more
political than legal in nature, the people naturally focus less on the
law and more on the lawyers who are chosen to administer it. Some are
key to impose their policy agendas through the judicial process. Others
want judges who will stick to interpreting the law rather than making
it. It is beyond dispute that the Constitution and its Framers intended
for judges to satisfy the latter criteria; that is, to stay within the
law rather than making it.
President Obama has voiced his support for judges looking to the
Constitution as a living document malleable to the times. He has said
he will pick judges who will look to empathy rather than written law
when deciding cases. When then-Senator Obama voted against the
confirmation of Chief Justice John Roberts, he said this:
[W]hile adherence to legal precedent and rules of statutory
or constitutional construction will dispose of 95 percent of
the cases that come before a court, so that both a Scalia and
a 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 rules of
construction and interpretation 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.
I don't dispute that there is a small percentage of cases that are
truly difficult. But the question is: Do we want these cases decided by
what the law says or by a judge's own personal empathies? I reject the
idea that these cases cannot be resolved by staying faithful to the
text of the Constitution, and it is dangerous to the rule of law to
suggest otherwise.
In June, I came to the floor and stated my opposition to Judge
Sotomayor's nomination based on numerous past statements she made
embracing an activist judiciary and endorsing the idea that judges
should look to areas outside of the law when deciding cases. However,
when Judge Sotomayor appeared before the Judiciary Committee last
month, she consistently took positions contrary to her past writings
and, in many cases, did a complete 180. This leads me to ask which
Sotomayor are we voting to confirm--the liberal activist or the modest
judge who believes in strictly applying the law as written?
Judge Sotomayor attempted to assure Senators that the real Sotomayor
is reflected in her 17-year record on the bench. I find this argument
interesting but unpersuasive, because as a judge on the court of
appeals, Judge Sotomayor has been constrained by Supreme Court
precedent. That is the position she held. Her judicial record tells us
very little about who the real Sotomayor will be when on the Supreme
Court. It is in her speeches and writings where she is unrestrained
that we find the real views on the fundamental questions that she will
decide as a Justice on the Supreme Court.
When asked at her confirmation hearing to summarize her judicial
philosophy, she said: ``Fidelity to the law.'' I completely agree with
this philosophy, but I have difficulty reconciling the words she chose
at her confirmation hearing with the statement she made in 1996 at
Suffolk University Law School when she stated: ``The law that lawyers
practice and judges declare is not a definitive capital `L' law that
many would like to think exists.'' The only reasonable interpretation
to that is that she pledges fidelity to whatever she says the law is.
In a 2001 famous speech she gave to Berkeley Law School, which was
later published in the Berkeley La Raza Law Journal, she dismissed the
idea that ``judges must transcend their personal sympathies and
prejudices and aspire to achieve a greater degree of fairness and
integrity based on the reason of law,'' saying that ``by ignoring our
differences as women or men of color, we do a disservice both to the
law and society.'' This certainly doesn't sound like a judge who
believes in fidelity to the law.
In the same speech, Judge Sotomayor famously said:
Justice O'Connor has often been cited as saying that a wise
old man and a wise old woman will reach the same conclusion
in deciding cases. I am not so sure that 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.
When asked about this statement at her confirmation hearing, Judge
Sotomayor said:
The words I used, I used agreeing with the sentiment that
Justice Sandra Day O'Connor was attempting to convey.
Really? Are we really supposed to believe that each time Judge
Sotomayor said, ``I'm not so sure I agree with that statement,'' she
actually meant ``I agree with that statement''? Judge Sotomayor's
explanation requires some suspension of disbelief.
Also at Berkeley, Judge Sotomayor said:
Whether born from experience or inherent physiological or
cultural differences, our gender and national origins may and
will make a difference in our judging.
At her hearing, she said:
I do not believe that any ethnic, racial, or gender group
has an advantage in sound judging.
Again, are we being asked to believe that Judge Sotomayor is either a
very poor communicator or her past statements have been continually
taken out of context and misinterpreted? I don't think she is a bad
communicator at all.
In her writings, Judge Sotomayor has repeatedly rejected the
principle of impartiality and embraced the novel idea that a judge's
personal life story should come into play in the courtroom. But when
she was in front of the Senate Judiciary Committee, with the Nation
watching, she suddenly embraced the judicial philosophy of Chief
Justice Roberts.
The past positions simply cannot be reconciled with what she said
before the Judiciary Committee. We do not know what she actually
believes.
In a 2005 appearance at Duke University Law School, she said, ``The
court of appeals is where policy is made.'' During her confirmation
hearing, she said, ``Judges don't make law'' and they ``look at the
Constitution and see what it says.''
Even some of Judge Sotomayor's defenders have criticized her flip-
flopping on her views. Georgetown Law Center professor Louis Michael
Seidman, a liberal constitutional law scholar, said:
[[Page S8830]]
I was completely disgusted by Judge Sotomayor's testimony
today. If she was not perjuring herself, she is
intellectually unqualified to be on the Supreme Court. If she
was perjuring herself, she is morally unqualified.
There was never any doubt that this President would nominate liberal
judges who shared his views. He won the election. Judge Sotomayor's
record on the bench has been fairly typical of a liberal judge.
However, there have been some notable exceptions.
After the Supreme Court ruled that individuals have a
constitutionally protected right to gun ownership in the case of
District of Columbia v. Heller, Maloney v. Cuomo, another second
amendment case, was argued in front of the Second Circuit. In a per
curiam opinion issued by a panel that included Judge Sotomayor, the
Second Circuit ruled that ``the Second Amendment applies only to
limitations the Federal Government seeks to impose on this right.''
They also said:
Legislative acts that do not interfere with fundamental
rights or single out suspect classifications carry with them
a strong presumption of constitutionality and must be upheld
if rationally related to a legitimate state interest.
In other words, the second amendment does not protect a fundamental
right. I believe the second amendment protects a fundamental right,
just as the first amendment protects a fundamental right. The Supreme
Court agrees it protects a fundamental right, and the Founders most
certainly believed there was a fundamental right to keep and to bear
arms.
In a high-profile racial discrimination case, Judge Sotomayor's panel
issued an unpublished summary order denying a group of firefighters a
promotion they had earned because the promotion exam had a disparate
impact on minorities. Sotomayor and her two colleagues' actions were
troubling because by issuing an unpublished summary order, they avoided
bringing the case to the attention of other judges on the Second
Circuit. It was only after another judge of the circuit read about the
case in a New Haven newspaper and requested that the full Second
Circuit rehear the case that Sotomayor's actions came to light. The
case was eventually appealed to the Supreme Court, and in a 5-to-4
opinion, the Court reversed the Second Circuit. Perhaps even more
importantly, the Court was unanimous--unanimous--in rejecting
Sotomayor's opinion that simply having a disparate racial impact was
justification to void the test. The dissenters at the Supreme Court
believed a jury trial should have been granted to examine the evidence
and determine whether the test was job related. Sotomayor clearly erred
in her decision.
Judge Sotomayor was nominated by a President who said judges should
have ``the empathy to recognize what it's like to be a young teenaged
mom; the empathy to understand what it's like to be poor or African-
American or gay or disabled or old,'' and that difficult cases should
be decided by ``what is in the justice's heart.''
When asked about President Obama's empathy standard by Senator Kyl,
Judge Sotomayor said this:
I wouldn't approach the issue of judging in the way the
President does. He has to explain what he meant by judging. I
can only explain what I think judges should do, which is
judges can't rely on what is in their heart.
Are we really to believe the President chose a nominee who outright
rejects his view of justice? I am concerned that the President has, in
fact, nominated an individual who shares his view that the Constitution
is a living document, and that is why I will be voting against her
confirmation.
After watching her performance in front of the Judiciary Committee
last month and observing that performance, I learned something I have
long suspected: Judge Sotomayor had no choice but to reverse many of
her past statements. A judge who openly embraces an activist judiciary,
using empathy to pick winners and losers, using his or her own race and
gender to decide the outcome of cases, using foreign law, who does not
believe the second amendment is a fundamental right and sees judges as
policymakers--all those things--is a judge who cannot be confirmed by
this body despite 60 Members belonging to the party of the President.
I hope President Obama has learned that important lesson as well,
that the people of the country want a Justice on the Supreme Court to
be a justice and not a policymaker; to be a judge and not somebody who
goes with the sympathies in their heart; someone who sticks with the
Constitution and does not try to rewrite it. If the President realizes
that, it will be a victory for the rule of law. And that is what this
is about.
Mr. President, I yield the floor, and I 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. CARDIN. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARDIN. I ask unanimous consent that the time in this hour be
divided in the following manner: Senator Cardin, 15 minutes; Senator
Baucus, 15 minutes; Senator Merkley, 10 minutes; Senator Akaka, 10
minutes; and Senator Lieberman, 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARDIN. Mr. President, the confirmation of Judge Sonia Sotomayor
to be Associate Justice to the Supreme Court will be my first Justice
confirmation vote as a Senator. It is an honor for me to represent the
people of Maryland in the Senate and to serve on the Judiciary
Committee. I particularly thank Chairman Leahy and Ranking Member
Sessions for the dignified manner in which the committee handled the
nomination process of Judge Sotomayor. Each Senator on our committee
had ample time to review Judge Sotomayor's background and ask questions
of the nominee. Her answers were as responsive as possible and gave me
confidence that she understood the appropriate role of a judge in
applying the law.
The Supreme Court, our Nation's highest Court, holds a tremendous
responsibility in deciding cases of fundamental issues that have real
impacts on the lives of Americans. In recent years, we have seen less
of a consensus on the Court, with many 5-to-4 decisions. Regrettably,
too many of these decisions have been at times when the Court has
ignored congressional intent and precedent to instead move forward with
its own agenda. It has been the so-called conservative Justices who
have been the most active in ignoring the intent of Congress in
protecting individual rights. For example, in the Ledbetter decision,
the Court denied women a remedy against employer discrimination pay
equity cases, thus eliminating protection intended by Congress. In the
Riverkeeper and Rapanos decisions, the Supreme Court narrowed the
congressional protections for clean water. In the Northwest Austin
Municipal Utility District decision, the Court challenged congressional
authority to extend the Voting Rights Act. In each of these cases, the
Supreme Court actively ruled to restrict laws passed by Congress to
protect individual rights. I want the next Justice to respect legal
precedent and congressional intent and advance, not restrict,
individual rights.
In determining whether to support Judge Sotomayor for this lifetime
appointment, I looked at several factors. First, I believe judicial
nominees must have an appreciation for the Constitution and the
protections it provides to each and every American. I also believe each
nominee must embrace a judicial philosophy that reflects mainstream
American values, not narrow ideological interests. I believe a judicial
nominee must respect the role and responsibility of each branch of
government. I look for a strong commitment and passion for continued
progress in civil rights protections.
I understand there is a careful balance to be found. Our next Justice
should advance the protections found in the Constitution but not
disregard important precedents that have made society stronger by
embracing our civil liberties. I believe Judge Sotomayor understands
this balance and will apply these principles appropriately.
During the hearing, we all learned more about Judge Sotomayor's
approach to the law and to judging. She clearly outlined for us her
fidelity to the law, respect for precedent, and due deference to the
intent of Congress. With each question, our committee and the American
public gained a greater
[[Page S8831]]
appreciation of Judge Sotomayor's knowledge of and commitment to the
rule of law. Her command of legal precedent and her ability to
challenge attorneys in their arguments will bode well for reaching the
right decisions in the Supreme Court. She is mainstream in her judicial
decisions and opinions, and she possesses a correct sense of the role
of a judge in deciding a case based on sound legal precedent and the
facts, giving due deference to congressional intent.
Over the past few months, our committee has had time to thoroughly
review Judge Sotomayor's record. From the moment she was nominated by
President Obama, we knew Judge Sotomayor had a strong background,
including extensive experience as a prosecutor, trial judge, and
appellate judge. She grew up in modest circumstances, worked hard to
attend two of our Nation's most prestigious universities, Princeton and
Yale Law School, and she excelled at the highest levels in each
institution. Judge Sotomayor's lifelong work has been recognized by
both Democratic and Republican Presidents who nominated her for Senate-
confirmed judicial appointments, and for 17 years she has served as a
distinguished jurist.
Judge Sotomayor is an example of a highly competent and experienced
nominee. She has more Federal judicial experience than any Supreme
Court nominee in the last 100 years. She was rated ``well qualified''
by the American Bar Association, which is the highest rating given by
the ABA. She has been supported by the National Fraternal Order of
Police, the NAACP, the U.S. Chamber of Commerce, the National
Association of Women Legislators, the Brennan Center for Justice, the
Lawyers Committee for Civil Rights Under Law, and many more.
The nine Justices of the Supreme Court have a tremendous
responsibility of safeguarding the Framers' intent and the fundamental
values of our Constitution, while ensuring the protection of rights
found in that very Constitution are applied and are relevant to the
issues of the day. It is my belief that the Constitution and Bill of
Rights were created to be timeless documents that stand together as the
foundation for the rule of law in our Nation. Were it not possible for
the Supreme Court to apply the basic tenets of the Constitution to
changing times, moving beyond popular sentiment, our Nation would never
have made the progress it has, improving society for the better. When
the Constitution was written, African Americans were considered
property and counted only as three-fifths of a person. Non-Whites and
women were not allowed to vote. Individuals were restricted by race as
to whom they could marry.
Decisions by the Supreme Court undeniably have moved the country
forward, continuing the progression of constitutional protections. I
believe Judge Sotomayor's record and background demonstrate that she
understands these principles and that she will apply sound legal
precedent to contemporary challenges advancing individual rights.
During the confirmation hearing, I spent the majority of my time
questioning Judge Sotomayor on the topic of civil rights. We discussed
the right to vote, women's rights, minority rights, including race and
gender issues, the environment, and the importance of diversity of the
courts throughout society. While difficult questions will continue to
come before the Court, for me, it bears repeating how important it is
to have Justices on the Supreme Court who will apply established
precedents and are not tempted to turn back the clock on landmark court
decisions that protect individual constitutional rights.
I gained great confidence in Judge Sotomayor after listening to her
answers to questions I posed. I wished to mention a few of the key
cases decided by Judge Sotomayor that we discussed at the hearing.
Judge Sotomayor has protected the civil rights of all Americans,
advanced equal opportunity, and promoted racial justice.
In the Gant case, she protected the rights of a young African-
American student who was treated differently than his fellow White
classmates. In the Boyton case, she looked at the facts presented and
reversed and remanded the case because the facts did present a
plausible claim of disparate treatment in a housing application
process. Judge Sotomayor has also shown an understanding of privacy
rights. While we do not have cases to review that she participated in,
her responses to questions gave me great confidence that she will
respect legal precedent while applying privacy protections to the
challenges in the 21st century.
I have confidence that Judge Sotomayor understands the importance of
protecting the freedom of speech based on the decisions she reached in
the Pappas case, where an off-duty police officer used speech that was
repugnant, but her ruling showed an understanding of the importance of
constitutional protections, even when the speech is unpopular and
hateful.
I have confidence Judge Sotomayor will protect religious freedom
based on her decision in the Ford case, where she protected the rights
of a Muslim prison inmate. I was particularly impressed by Judge
Sotomayor's record on voting rights. In the Hayden case, she wrote in a
dissent:
The duty of a judge is to follow the law, not to question
its plain terms. I do not believe that Congress wishes us to
disregard the plain language of a statute or to invent
exceptions in the statutes it has created.
Her commitment on voting rights was reinforced at the hearing when
she responded to a question I posed. She acknowledged, unequivocally,
that the right to vote is a fundamental right for all Americans. With
current Justices on the Court ready to question Congress's right to
extend the basic voting protections of the Voting Rights Act, it is
refreshing to hear Judge Sotomayor say in the Hayden case: ``I trust
that Congress would prefer to make any needed changes itself rather
than have the court do so for it.''
I have great confidence that Judge Sotomayor understands the
importance of civil rights and the importance of protecting those
rights for the American people.
I believe Judge Sotomayor will defend Congress's intent with the
passage of the Clean Water Act, the Clean Air Act, and many others,
based on her decision in the Riverkeeper case. In this case, she wrote
for a unanimous panel and held that under the Clean Water Act, the EPA
could not engage in a cost-benefit analysis. Allowing cost-benefit
analysis would undermine congressional protections, when determining
what constitutes the ``best technology available for minimizing the
adverse environmental impact.'' She concluded, instead, the test for
compliance should consider ``what technology can be reasonably borne by
the industry and could engage in cost-effectiveness analysis in
determining the [best technology available].''
In addition to her impressive legal background, Judge Sotomayor is on
the verge of becoming the first Latino and only the third woman to
serve on the Supreme Court. Her story of personal success is an
inspiration for young Latinos, women, and for all Americans. She is
prepared and ready to serve our Nation on the Court, where I am
confident she will continue to build upon the outstanding record she
has already achieved as a distinguished jurist. For all these reasons
and many more, I will vote to confirm Judge Sotomayor to be the next
Associate Justice of the U.S. Supreme Court. I urge my colleagues to
join in support of her confirmation.
I ask unanimous consent to have printed in the Record the following
letters of support: The Lawyers Committee for Civil Rights Under Law, a
joint letter with more than 25 disability rights organizations in
support of Judge Sotomayor's confirmation; and letters of support
signed by more than 80 civil rights and labor organizations in support
of her nomination to be the next Supreme Court Justice.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Confirm Judge Sonia Sotomayor to the U.S. Supreme Court
August 4, 2009
Dear Senator: On behalf of the undersigned organizations,
we write to express our support for the confirmation of Judge
Sonia Sotomayor as associate justice of the Supreme Court of
the United States. In her 17 years of service to date as a
federal trial and appellate judge, and throughout the course
of her entire career, Judge Sotomayor has strongly
distinguished herself through her outstanding intellectual
credentials and her deep respect for the rule of law,
establishing
[[Page S8832]]
herself beyond question as fully qualified and ready to serve
on the Supreme Court.
Judge Sotomayor will be an impartial, thoughtful, and
highly respected addition to the Supreme Court. Her unique
personal background is compelling, and will be both a
tremendous asset to her on the Court and a historic
inspiration to others. Her legal career further demonstrates
her qualifications to serve on our nation's highest court.
After graduating from Yale Law School, where she served as an
editor of the Yale Law Journal, Judge Sotomayor spent five
years as a criminal prosecutor in Manhattan. She then spent
eight years as a corporate litigator with the firm of Pavia &
Harcourt, where she gained expertise in a wide range of civil
law areas such as contracts and intellectual property. In
1992, on the bipartisan recommendation of her home-state
senators, President George H.W. Bush appointed her district
judge for the Southern District of New York. In recognition
of her outstanding record as a trial judge, President Bill
Clinton elevated her to the U.S. Court of Appeals in 1998.
During her long tenure on the federal judiciary, Judge
Sotomayor has participated in thousands of cases, and has
authored approximately 400 opinions at the appellate level.
She has demonstrated a thorough understanding of a wide range
of highly complicated legal issues, and has a strong
reputation for deciding cases based upon the careful
application of the law to the facts of cases. Her record and
her inspiring personal story indicate that she understands
the judiciary's role in protecting the rights of all
Americans, in ensuring equal justice, and in respecting our
constitutional values--all within the confines of the law.
Moreover, her well-reasoned and pragmatic approach to cases
will allow litigants to feel, regardless of the outcome, that
they were given a fair day in court.
Given her stellar record and her reputation for fairness,
Judge Sotomayor has garnered broad support across partisan
and ideological lines, earning glowing praise from colleagues
in the judiciary, law enforcement community, academia, and
legal profession who know her best. Her Second Circuit
colleague (and also her former law professor) Judge Guido
Calabresi describes her as ``a marvelous, powerful,
profoundly decent person. Very popular on the court because
she listens, convinces and can be convinced--always by good
legal argument. She's changed my mind, not an insignificant
number of times.'' Judge Calabresi also discredited concerns
about Judge Sotomayor's bench manner, explaining that he
compared the substance and tone of her questions with those
of his male colleagues and his own questions: ``And I must
say I found no difference at all.'' Judge Sotomayor's
colleague Judge Roger Miner, speaking of her ideology, argued
that ``I don't think I'd go as far as to classify her in one
camp or another. I think she just deserves the classification
of outstanding judge.'' And New York District Attorney Robert
Morgenthau, her first employer out of law school, hailed her
for possessing ``the wisdom, intelligence, collegiality, and
good character needed to fill the position for which she has
been nominated.''
The undersigned organizations urge you not to be swayed by
the efforts of a small number of ideological extremists to
tarnish Judge Sotomayor's outstanding reputation as a jurist.
These efforts have included blatant mischaracterizations of a
handful of her rulings, as well as efforts to smear her as a
racist based largely on one line in a speech that critics
have taken out of context from the rest of her remarks. The
simple fact is that after serving 17 years on the federal
judiciary to date, she has not exhibited any credible
evidence whatsoever of having an ideological agenda, and
certainly not a racist one. We hope that you will strongly
reject the efforts at character assassination that have taken
place since her nomination.
In short, Judge Sotomayor has an incredibly compelling
personal story and a deep respect for the Constitution and
the rule of law. Her long and rich experiences as a
prosecutor, litigator, and judge match or even exceed those
of any of the justices currently sitting on the Court.
Furthermore, she is fair-minded and ethical, and delivers
thoughtful rulings in cases that are based upon their merits.
For these reasons, the undersigned organizations strongly
urge you to vote to confirm Judge Sotomayor. If you have any
questions, please feel free to contact Leadership Conference
on Civil Rights (LCCR) Counsel Rob Randhava at (202) 466-
6058, or LCCR Executive Vice President Nancy Zirkin at (202)
263-2880.
Sincerely,
80 signatures in support of Judge Sotomayor's confirmation.
____
American Association
of People With Disabilities,
Washington, DC, July 7, 2009.
Hon. Patrick Leahy,
Chair, Judiciary Committee,
U.S. Senate, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Senators Leahy and Sessions: On behalf of the
undersigned national advocacy organizations representing the
interests of millions of people with disabilities, we write
to express our strong support for the confirmation of Judge
Sonia Sotomayor as Associate Justice of the Supreme Court of
the United States. We have reviewed hundreds of Judge
Sotomayor's decisions, including her disability rights
decisions, from her career as a trial judge and appeals court
judge, along with her public statements in speeches and in
interviews. Based on her sterling judicial record, and on her
valuable life experience, we strongly believe that Judge
Sotomayor will adequately and fairly protect the rights of
all Americans, including people with disabilities. As such,
we ask that you vote to confirm her nomination.
Judge Sotomayor's decisions under our seminal civil rights
law, the Americans with Disabilities Act (ADA), have
demonstrated a good understanding of--and healthy respect
for--the rights of persons with disabilities. In important
ADA cases concerning the definition of ``disability''--an
area of the law subject over the years to many
inappropriately narrowing judicial interpretations, so much
so that last year Congress amended the ADA to restore its
broad reach--Judge Sotomayor has often combed through
voluminous or technical testimony to determine whether the
plaintiff was protected by the law. Similarly, her
understanding of the importance of accommodations to help
workers with disabilities maintain employment is reflected in
her thoughtful decisions in workplace accommodation cases.
She has not been afraid to dissent from a decision finding
that plaintiffs did not have disabilities. Nor has she
been afraid to overturn a jury verdict where incorrect
instructions to the jury impeded a plaintiff's ability to
obtain relief under the ADA.
In her ADA decisions, and in other cases, Judge Sotomayor
has demonstrated great sensitivity to the needs of, and
challenges facing, people with disabilities in this country.
For example, her analysis of special education issues arising
under the Individuals with Disabilities Education Act (IDEA)
reflects--and language from her decisions explicitly states--
a keen awareness of the importance of timely special
education services to students with disabilities and their
families, She has been vigilant in reviewing administrative
decisions denying Social Security benefits, especially where
applicants are not represented by attorneys. In a notable
dissent, Judge Sotomayor argued forcefully that the
appointment of a guardian ad litem violated the
constitutional rights of a plaintiff who had received
psychiatric treatments, because she was not properly notified
that she would have no control over her case once the
guardian was appointed.
Given her record of balanced and thoughtful decisionmaking,
we believe that Judge Sotomayor understands and appreciates
Congress's role in enacting important disability rights
protections, in enacting the ADA and other disability rights
laws, Congress carefully considered the history of people
with disabilities in the United States, and acknowledged that
many people with disabilities have been ostracized from their
families and communities--that they have been prevented from
going to school in their neighborhood schools, from working
at jobs for which they were qualified, and from participating
fully in all aspects of community life. The care that Judge
Sotomayor has taken in her disability rights decisions
indicates a respect for Congress's intent that these laws
have a broad remedial effect on the relationships between
individuals with disabilities and covered entities such as
employers, schools, state agencies, and public
accommodations. For this reason, we expect that she would
accord Congress appropriate deference in this area.
It is our belief that Judge Sotomayor will bring her fair,
thorough approach to disability rights cases to her work on
the Supreme Court, Judge Sotomayor understands the language
and purpose of the ADA and other disability rights laws.
Further, she understands that the decisions of judges,
including Supreme Court justices, that interpret these laws
have consequences for people with disabilities. Admirably,
she has been unafraid to take strong positions on issues
where she believes her reading of the law and facts is
correct. Based on her record and her experience--including
the fact that she has publicly acknowledged her own insulin-
treated diabetes--we strongly urge you to confirm Judge
Sotomayor for the Supreme Court.
Thank you for your important work on Judge Sotomayor's
nomination. Should you have questions about this letter,
please feel free to contact Andrew lmparato of the American
Association of People with Disabilities, Jim Ward of ADA
Watch/National Coalition for Disability Rights or Jennifer
Mathis or Lewis Bossing of the Judge David L Bazelon Center
for Mental Health Law.
Sincerely,
Alexander Graham Bell Association for the Deaf and Hard of
Hearing.
American Association for Affirmative Action.
American Association on Health & Disability.
American Association of People with Disabilities.
American Diabetes Association.
ADA Watch/National Coalition for Disability Rights.
Association of Programs for Rural Independent Living.
Autism Society of America.
Burton Blatt Institute.
Disability Rights Education and Defense Fund.
Empowerment for the Arts International.
Epilepsy Foundation.
Higher Education Consortium for Special Education.
Judge David L. Bazelon Center for Mental Health Law.
[[Page S8833]]
MindFreedam International.
National Association of the Physically Handicapped.
National Association of Social Workers.
National Association of State Head Injury Administrators.
National Center for Environmental Health Strategies, Inc.
National Center for Learning Disabilities.
National Council on Independent Living.
National Disability Institute.
National Disability Rights Network.
National Down Syndrome Society.
National Spinal Cord Injury Association.
Teacher Education Division of the Council for Exceptional
Children.
United Church of Christ Disabilities Ministries Board of
Directors.
United Spinal Association.
____
June 30, 2009.
Hon. Patrick Leahy, Chairman,
U.S. Senate Judiciary Committee, Washington, DC.
Hon. Jeff Sessions,
Ranking Member, U.S. Senate Judiciary Committee, Washington,
DC.
Dear Senators Leahy and Sessions: As professors of
Disability Law, Disability Rights Law, and Special Education
Law from across the country, we write to express our support
for the confirmation of Judge Sonia Sotomayor for appointment
to the United States Supreme Court.
A review of Judge Sotomayor's record on disability law
issues indicates that she has an excellent understanding of
the various laws' application to people with disabilities in
various contexts, including disability civil rights,
employment, special education, Social Security, Medicaid, and
guardianship.
Judge Sotomayor's record shows that she takes a balanced,
thoughtful approach to disability issues. Her analysis is
consistently thorough, practical and respectful of individual
rights. In close cases, she does not appear to follow any
particular ideology or activist agenda.
Definition of Disability
With the passage of the Americans with Disabilities
Amendments Act of 2008, Congress repudiated much of the way
that the Supreme Court has interpreted the Americans with
Disabilities Act's definition of disability. Notwithstanding
this flux In the law, Judge Sotomayor's opinions in this area
stand out as being careful and reasoned, as she has engaged
in searching inquiries into the nature of plaintiffs'
impairments to determine whether they meet the functional and
legal definition of disability. (See Bartlett v. New York
State Board of Law Examiners, 2001 WI 930792 (S.D.N.Y, 2001).
Judge Sotomayor has not been reluctant to dissent in cases
where the law was being applied overly narrowly, particularly
on the Issue of coverage based on an employer's perceptions
of disability (``regarded as''). (See EEOC v. J.B. Hunt
Transp., Inc., 321 F.3d 69, 78 (2d Cir. 2003) (Sotomayor
dissenting)). After the passage of the ADA Amendments Act,
Judge Sotomayor's interpretation of the ``regarded as'' prong
of disability now has been adopted as consistent with
congressional intent.
Discrimination
Judge Sotomayor has authored decisions holding, as a matter
of first impression in the Second Circuit, that ``mixed
motive'' analysis (allowing discrimination claims where there
are both discriminatory and non-discriminatory motives for a
challenged action) applies in ADA employment discrimination
claims (See Parker v. Columbia Pictures Industries, 204 F.3d
326 (2d Cir, 2000)). Her opinion fully analyzed, and was
consistent with, precedents in other jurisdictions and the
demonstrated intent of Congress.
Reasonable Accommodation
Judge Sotomayor has participated in several cases reversing
grants of summary judgment for ADA defendants where there
were questions of fact regarding whether plaintiffs requested
accommodations were reasonable. Judge Sotomayor wrote a
decision reversing a jury verdict against the plaintiff for
failure to give a jury instruction indicating that, in
determining whether reassignment to a vacant position is a
reasonable accommodation, an offer of an inferior position is
not reasonable when a comparable, or lateral, position is
available, (See Norville v. Staten Is. Univ. Hosp., 196 F.3d
89 (2d Cir. 1999)).
Education
Judge Sotomayor's education opinions reflect an appropriate
concern for parents' procedural rights, recognizing that,
only by ensuring parents' rights to hearings and records can
their children's substantive educational rights be ensured,
while also balancing states' rights under the ``cooperative
federalism'' envisioned by the Individuals with Disabilities
Education Act (IDEA). (See Taylor v. Vermont Dep't of Educ.,
313 F.3d 768 (2d Cir, 2002). She has also written opinions
recognizing that the IDEA exhaustion requirement is not so
inflexible as to require parents to engage in futile efforts.
(See Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 297
F.3d 195 (2d Cir. 2002)).
Constitutionality of Federal Civil Rights Legislation
Judge Sotomayor has resisted judicial attempts to
artificially limit federal legislative authority to
articulate and enforce individual rights. While demonstrating
respect for precedent, she has not interpreted the
Constitution to prevent Congress from recognizing individual
and civil rights. (See Hayden v. Pataki, 449 F.3d 305 (2d
Cir. 2006) (Sotomayor joining dissent from en bane decision);
Connecticut v. Cahill, 217 F.3d 93 (2d Cir. 2000) (Sotomayor
dissenting)). Her opinions reflect a deference to Congress
and to the plain language of the Constitution.
The Supreme Court is the guardian of our rights and
freedoms. As such, we recognize the importance of each
nomination to the Court. Based on her record as a district
court judge and as a Judge on the Second Circuit Court of
Appeals, we believe Judge Sotomayor has demonstrated
appropriate respect for the rule of law and the importance of
individual rights, Therefore, we urge you to confirm the
nomination of Judge Sonia Sotomayor to the U.S. Supreme
Court.
23 signatures in support of Judge Sotomayor's confirmation.
Mr. CARDIN. I yield the floor.
The PRESIDING OFFICER (Mr. Bennet). The Senator from Montana.
Mr. BAUCUS. Mr. President, it is with great honor that I rise to
express my support for the nomination of Judge Sonia Sotomayor to be an
Associate Justice of the U.S. Supreme Court.
In the Federalist Papers, explaining our great Constitution and the
role of the judiciary, Alexander Hamilton quoted Montesquieu to say:
There is no liberty, if the power of judging be not
separated from the legislative and executive power.
We Americans should take a moment to recognize that few other nations
in the world possess such a strong emphasis on individual rights and
liberties--something we cherish greatly. Too often we take it for
granted. We can, in large part, point to this Nation's independent
judiciary as the reason for this emphasis on individual rights and
liberties. Sure, they are enshrined in the Constitution, but the
independent judiciary, framed in the Constitution, helps make all that
possible. Justice Sandra Day O'Connor stated, for example:
The Framers of the Constitution were so clear in the
Federalist Papers and elsewhere that they felt an independent
judiciary was critical to the success of the nation.
Our Founding Fathers were wise in setting up three separate branches
of government, including a strong and independent judiciary. The
pinnacle of this system and its independence is the U.S. Supreme Court,
the highest Court in the land.
Our Constitution embodies this independence in the separation of
powers and checks and balances throughout this great document. This is
the case in the structure of appointing our Supreme Court Justices. The
Constitution provides of the President, for example, that:
He shall nominate, and by and with the advice and consent
of the Senate, shall . . . appoint judges of the Supreme
Court.
Let me repeat, the Constitution says: the President ``shall nominate,
and by and with the advice and consent of the Senate, shall appoint . .
. judges of the Supreme Court.''
The Senate's role is of utmost importance in defending the
independence of the Supreme Court. The Senate's active advice and
consent role in the confirmation of Supreme Court Justices helps to
ensure that nominees have the support of a broad political consensus.
Of the many responsibilities the Constitution grants to the Senate,
few are more critical than the Senate's role in the confirmation
process for Supreme Court Justice nominees.
I take--and I know each of us in the Senate does--this constitutional
responsibility very seriously. Throughout my time in the Senate, I have
established three criteria I use to examine nominees. These three
criteria are: professional competency, personal integrity, and a view
of important issues within the mainstream of contemporary judicial
thought. Those are the three. They are the criteria I use. I have
analyzed past Supreme Court nominees using these three criteria,
including Chief Justice Roberts and Justice Alito. I will review my
criteria.
First, professional competency. The Supreme Court must not be the
testing ground for the development of a jurist's basic values. We do
not have time for that. A Justice cannot learn on the job, nor should
she require further training. The stakes are simply too high. She must
be professionally competent on day one.
Second, personal integrity. Nominees to our Nation's highest Court
must be of the highest caliber.
[[Page S8834]]
And, third, the nominee should fall within the mainstream of
contemporary judicial thought. The next Justice must possess the
requisite judicial philosophy to be entrusted with the Court's sweeping
constitutional powers.
I believe that in the case of Judge Sonia Sotomayor, the answer to
all three questions is a resounding ``yes.''
Judge Sotomayor is the embodiment of the American dream--rising from
a Bronx public housing project to a place among the judicial elite. She
attended Princeton, where she graduated among the top of her class, and
she was editor of the Law Journal at Yale Law School.
Judge Sotomayor's work history is diverse and rich with experience.
Judge Sotomayor began her legal career as assistant district attorney
for New York County in 1979. She then worked as a litigator at Pavia &
Harcourt, a small firm in Manhattan, where she handled commercial
cases.
Judge Sotomayor's 17 years on the bench, first as a district court
judge, then on the second circuit, have yielded an enormous yet
consistent body of work. Her opinions show thorough and thoughtful
analysis, an eye for detail, and, in her own words, fidelity to the
law.
I have no doubt that Judge Sotomayor has the professional competency
that the American people require of Supreme Court Justices.
Judge Sotomayor's life experiences also convey the personal integrity
essential to a Supreme Court Justice. She has given back her time,
energy, and expertise to the community that helped shape who she is.
She has worked hard throughout her career, inspiring students across
the country to pursue study of the law.
For her service, Judge Sotomayor has received many honorary degrees--
many--countless awards, and accolades from her colleagues, clerks, and
the academic community. Judge Sotomayor has also made personal
sacrifices. She recognizes the personal sacrifices she must make in
order to serve as a Justice on the Supreme Court.
My third criteria--that is, a nominee who falls within the mainstream
of contemporary judicial thought--is met, again, by reviewing Judge
Sotomayor's lengthy judicial record. Some of my colleagues want to
paint her as a judicial activist with leftwing leanings.
In fact, in constitutional cases that came before the second circuit,
Judge Sotomayor voted with the majority 98 percent of the time--hardly
a leftwing activist. In the rare cases where she held a government
action unconstitutional, the decision was so clear that it was
unanimous. Judges appointed by Republican Presidents have agreed with
Judge Sotomayor 90 percent of the time--hardly a leftwing activist.
This is not the actions of an activist judge. In fact, this is a
judge who can be relied on to produce a decision that most people can
agree with.
I strongly believe Judge Sotomayor has met the three criteria I view
essential to a Supreme Court Justice, and this was even more evident
during her confirmation hearing.
Over the 4 days of hearings on the nomination of Judge Sotomayor,
what did we see? We saw a composed, intelligent, and thoughtful judge,
someone committed to the law, and one with a rich life story and
expansive judicial experience, whose perspective will enrich the
judgments of the U.S. Supreme Court.
In closing, I congratulate our President. I congratulate President
Obama on his historic nomination. I am confident Judge Sotomayor will
make an outstanding Justice on the U.S. Supreme Court.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. 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. REID. Mr. President, for the benefit of Members, we will have no
more votes tonight. I just completed a meeting with Senator McConnell,
and we are trying to work through when we are going to have a final
vote on the Supreme Court nomination, what we are going to do on travel
promotion, and what we are going to do for cash for clunkers. We are
trying to work through that. We hope we will have something worked out
tonight, but knowing how things work around here, we probably will not
be able to get information to Members until tomorrow. But there will be
no more votes tonight.
I have indicated the number of things we have to complete before we
leave here, and that is all dependent on the amount of cooperation we
get from the minority whether we finish tomorrow, Friday, or Saturday,
or Sunday. There is no reason we can't put in a modestly long day
tomorrow and complete everything, but we will have to see. We will do
our best to try to get notice to Members as quickly as we can.
Mr. INOUYE. Mr. President. I support the nomination of Judge Sonia
Sotomayor to the Supreme Court.
Some of my colleagues have criticized Judge Sotomayor for her views.
I welcome an independent thinker.
Some have criticized her for being a ``liberal'' in certain cases.
What is wrong with being a liberal? Do all Supreme Court Justices have
to qualify as being conservatives?
I welcome the nomination of Judge Sotomayor to the Court because she,
unlike most members of the Supreme Court, has lived through the
experiences of many of our citizens. She knows what it is to be poor.
She knows what it is to have grown up in public housing.
I wish her the very best.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. AKAKA. Mr. President, I rise today in support of the confirmation
of Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme
Court. She has received support from many parts of the community. The
Judiciary Committee has received many letters of support for Judge
Sotomayor's nomination, from current and former public officials,
including the National Association of Latino Elected and Appointed
Officials, the Congressional Asian Pacific American Caucus, former
President Bill Clinton, as well as former Judge Advocates General.
These letters of support continue to come.
Judge Sotomayor is well qualified, with significant judicial
experience. After graduating from Yale Law School, she worked in the
New York County District Attorney's Office prosecuting criminal cases
such as homicides and robberies, child pornography, police misconduct,
and fraud cases. She then spent over 7 years in private practice
working with large corporations on international business issues.
In 1992, Judge Sotomayor was appointed by President George H.W. Bush
to the Southern District Court of New York. Six years later she was
appointed by President Clinton to the Second Circuit Court of Appeals
where she has served for more than 10 years.
Throughout her career, Judge Sotomayor has displayed a keen intellect
and an understanding of the world around her. She knows the law and
knows firsthand how it affects Americans' daily lives.
If confirmed, Judge Sotomayor will be the first Hispanic Justice and
the third female Justice to sit on the Supreme Court. Her confirmation
would make the Supreme Court more reflective of our great and diverse
Nation.
She brings a rich background and a wealth of experience and
understanding of American life that will have an impact on the cases
before the Court. As other Justices have noted, the unique personal
story of each Supreme Court Justice allows them to better understand
the parties before them and to better apply the law to the facts at
hand. She has a deep understanding of the real lives of Americans--how
her decisions can affect not only the parties before her but society at
large.
In June, I had the pleasure to meet with Judge Sotomayor. During our
meeting we talked about Hawaii, its history, and its culture. We talked
about how being an island State forces us to work together to resolve
challenges and how our diverse culture helps us find unique solutions.
Judge Sotomayor understands that. She knows our diversity ultimately
makes America stronger.
Her commonsense approach to the law gives Americans reason to believe
that she will be an unbiased and fair-minded Supreme Court Justice. In
fact,
[[Page S8835]]
Judge Sotomayor's record demonstrates her realistic approach to
deciding cases and her fair treatment of the parties before her. She
has a long record of judicial restraint and respect for our
constitutional freedoms, established precedent, and the other branches
of the government, including the lawmaking role of Congress.
Last month we watched as she handled her confirmation hearing with
poise and composure. She addressed the committee members' questions
with thoughtfulness and respect. She demonstrated that she is up to the
challenge and the great responsibility of serving on the Supreme Court.
I am confident, based on her experience and background, that she will
make an excellent addition to the U.S. Supreme Court.
I urge my colleagues to focus on her qualifications, her life
experience, and her judgment and join me in supporting Judge
Sotomayor's confirmation.
Mr. President, I ask unanimous consent that the letters I mentioned
at the beginning of my remarks be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Association of Latino
Elected and Appointed Officials,
Los Angeles, CA, July 10, 2009.
Hon. Patrick J. Leahy,
Chairman, Senate Committee on the Judiciary, Washington, DC.
Hon. Jess Sessions,
Ranking Member, Senate Committee on the Judiciary,
Washington, DC.
Dear Senator Leahy and Senator Sessions: On behalf of the
National Association of Latino Elected and Appointed
Officials (NALEO), I am writing to express our strong support
for the swift confirmation of Judge Sonia Sotomayor to serve
as Association Justice of the U.S. Supreme Court. NALEO is
the leadership organization of the nation's more than 6,000
Latino elected and appointed officials.
Judge Sotomayor is an exceptionally accomplished jurist who
has demonstrated a deep commitment to equal justice for all
Americans. She has excelled as a prosecutor, a corporate
litigator, a federal judge, and an appellate judge on the
Second Circuit Court of Appeals. Judge Sotomayor has more
experience in the federal judiciary than any other person
nominated to the United States Supreme Court in a hundred
years.
In addition, during her distinguished career, Judge
Sotomayor has combined a profound respect for the rule of law
with careful and thoughtful analysis of the law's impact on
the day-to-day realities of our diverse nation. Through her
extensive public service efforts, she has promoted equal
opportunity in employment and housing, and expanded access to
the electoral process.
NALEO's Board reached the decision to support Judge
Sotomayor's nomination after a thorough review of her
qualifications conducted in accordance with the Board's
principles governing the assessment of federal judiciary
nominees. This assessment involved a comprehensive evaluation
of the Judge's professional accomplishments, and her opinions
and rulings that affect equal access to civic and economic
opportunities. The Board also reviewed the Judge's record of
service to the legal profession, the judiciary, and the
public.
We believe that the confirmation of Judge Sotomayor is
particularly important, because it will help enhance the
diversity of the nation's highest court, where no Latino has
yet served. In order for our judicial system to carry out
justice effectively and interpret our laws fairly, our judges
must understand how laws affect the daily realities of the
life of our nation's diverse residents. Latinos are the
nation's second largest and fastest growing population group,
and Judge Sotomayor will bring a deep understanding of the
issues facing Latinos and all Americans to the Supreme Court.
Thus, her service as an Associate Justice will greatly enrich
the administration of justice in our nation.
NALEO believes Judge Sotomayor will be an invaluable asset
to our nation's highest court because she possesses
exceptional judicial expertise and a firm dedication to our
laws and Constitution. The full Senate must confirm the
Judge's nomination by the August Congressional recess in
order for Judge Sotomayor to participate in September when
the Court confers, and to be seated on the first Monday in
October, when the court publicly convenes. We urge the Senate
Judiciary Committee to help meet this schedule by advancing
Judge Sotomayor's nomination to the full Senate as
expeditiously as possible.
Thank you for attention to this matter. Should you have any
questions, please contact me.
Sincerely,
Arturo Vargas,
Executive Director.
____
Congressional
Asian Pacific American Caucus,
Washington, DC, July 13, 2009.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Jeff Sessions,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Chairman Leahy and Ranking Member Sessions: On behalf
of the Congressional Asian Pacific American Caucus (CAPAC), I
am writing to inform you of CAPAC's endorsement of the
nomination of Judge Sonia Sotomayor to be an Associate
Justice of the U.S. Supreme Court.
CAPAC applauds President Obama's decision to choose Judge
Sonia Sotomayor as his Supreme Court nominee A brilliant
legal mind, Judge Sotomayor has already served our country
with great distinction. Over the course of her distinguished
career, Judge Sotomayor has been a fearless guardian of the
rule of law and demonstrated integrity of the highest class,
earning her the respect of the legal community.
Despite humble beginnings from the South Bronx, Judge
Sotomayor went on to become the valedictorian of her high
school, the top undergraduate student in her class at
Princeton, and an editor of the Yale Law Journal. Her legal
career has been as dazzling as her life story, and she is
unquestionably qualified to serve as a Supreme Court Justice.
She would bring to the Supreme Court her experience in
nearly every level of our judicial system as a prosecutor,
litigator, trial court and appellate judge--offering a depth
and breadth of experience that will inform her work on our
nation's highest court. In fact, she has a wider range of
federal legal experience than any Justice sitting on today's
Court.
CAPAC extends its endorsement with pride. Members of our
caucus look forward to working with you to ensure a fair and
smooth confirmation process.
Sincerely,
Michael M. Honda,
Chair.
____
July 14, 2009.
Hon. Patrick J. Leahy,
Chairman, U.S. Senate Judiciary Committee, Washington, DC.
Dear Mr. Chairman: I write respectfully to urge the
Senate's speedy confirmation of the Honorable Sonia Sotomayor
as Associate Justice of the Supreme Court of the United
States.
I had the privilege to name Judge Sotomayor to a position
in the Federal Judiciary. On that occasion, she was a
trailblazer as the first Latina nominated to a U.S. Circuit
Court. As the first Hispanic nominee to the U.S. Supreme
Court, Judge Sotomayor once again breaks new ground. If
confirmed, Justice Sotomayor will be the second jurist in
history nominated to three judgeships by three different
Presidents. I am very proud of our nation at this auspicious
moment.
It is my hope that Judge Sotomayor will join the Supreme
Court, where she can make a unique contribution through her
experience as a state prosecutor and a trial judge. Her
compelling life story, being raised by a single mother of
modest means who instilled in her the values of hard work and
educational achievement, is the true embodiment of the
American Dream.
I congratulate President Obama for selecting an eminently
qualified nominee and encourage the Senate to recognize Judge
Sotomayor's outstanding qualifications and experiences, which
make her worthy of the honored role of Associate Justice of
the Supreme Court of the United States.
Sincerely,
Bill Clinton.
____
Hon. Patrick J. Leahy,
Chairman, U.S. Senate Committee on the Judiciary, Washington,
DC.
Hon. Jefferson B. Sessions,
Ranking Member, U.S. Senate Committee on the Judiciary,
Washington, DC.
Hon. Lindsey Graham,
Member, U.S. Senate Committee on the Judiciary, Washinton,
DC.
Dear Chairman Leahy, Ranking Member Sessions, and Senator
Graham: We, former Judge Advocates General and a general in
the Judge Advocate General's Corps, respectfully write to
support the confirmation of Judge Sonia Sotomayor as an
Associate Justice of the United States Supreme Court.
Judge Sotomayor is well-qualified for the Supreme Court and
should be confirmed. She has earned a reputation for careful,
narrowly-tailored decisions in seventeen years as a federal
judge, applying the law impartially, and faithfully honoring
precedent and the rule of law. Earlier in her career, she
impressed her colleagues as a focused and hard-working
prosecutor and corporate litigator. She has distinguished
herself in each role, displaying rigorous thinking and
careful attention to the facts before her. Judge Sotomayor
would serve the Court, and the nation, well.
[[Page S8836]]
We urge your speedy confirmation of this qualified nominee.
Sincerely,
James P. Cullen,
Brigadier General, USA (Ret.).
Donald J. Guter,
Rear Admiral, USN (Ret.).
John D. Hutson,
Rear Admiral, USN (Ret.).
Mr. AKAKA. Mr. President, I yield the floor, and I suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. MERKLEY. 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. MERKLEY. Mr. President, over the past few weeks of meetings and
hearings, both the Senate and the American people have witnessed the
intelligence, the legal understanding, and dedication to the law that
makes Judge Sonia Sotomayor well qualified to be our next Supreme Court
Justice. Today, I rise to support her nomination and share a few
thoughts on why I think Judge Sotomayor should be confirmed as the next
U.S. Supreme Court Justice.
When I was in college I took a freshman seminar on the Bill of
Rights. Each week, our professor would give us the facts of a Supreme
Court case without the opinions and would ask us to draft our opinion
of a situation. After we had prepared our opinion, we would share them
the next week, and then and only then read the official majority and
minority opinions of the Justices. It was quite an education in the
Bill of Rights.
Over the course of the semester, many of us came to identify with the
approach and viewpoints of one Justice or another. It was very helpful
in gaining insight into my own thinking and that of our Supreme Court.
So when I met Judge Sotomayor, I posed a question to her: Which judge
do you most identify with? Her answer was Justice Benjamin Cardozo.
Let me tell my colleagues a little bit about Benjamin Cardozo. A
native of New York, he served on the New York Court of Appeals, the
highest State court in New York, from 1914 to 1932, and then on the
U.S. Supreme Court from 1932 to 1938. Cardozo was descended from
Portuguese Jewish immigrants who long ago had fled the Spanish
Inquisition, and Cardozo was the first Jewish person to serve on the
New York Court of Appeals. His careful, brilliant opinions on New York
law earned him wide recognition as one of our Nation's most outstanding
judges.
When he was nominated to the Supreme Court in 1932, he was confirmed
by the Senate by a unanimous voice vote. I can see many reasons why
Judge Sotomayor, as a native New Yorker, as a child of Spanish-speaking
immigrants from Puerto Rico, and as a longtime judge in New York might
identify with Justice Cardozo. I am sure Judge Sotomayor would love to
extend the parallel to Cardozo's unanimous Senate confirmation vote.
But Judge Sotomayor cited none of these reasons. Rather, she pointed to
his particular approach to judging--the careful, fact-intensive
approach that was Cardozo's hallmark.
Let me put that observation in context. Cardozo served as a judge
during the industrializing early 20th century. Because of the rapidly
changing times in which he lived, he was faced with a wide range of
cases that raised new and difficult issues. His opinions became
recognized for drawing deeply on the facts of individual cases and
relied heavily on the development of the law that came before him. He
was innovating and forward-looking but also deeply respectful of
careful development of the law. He described his style as one of
steady, hard work. Justice Cardozo and Judge Sotomayor share a love for
steady, hard work--the steady, careful development of law that comes
from fact-intensive, careful judging. These are approaches to law that
will serve the judge well as our next Supreme Court Justice.
Interpreting the Constitution is, of course, a challenge. Our
Constitution is mostly written in broad, general directives. For
example, our first amendment says Congress shall pass no law
``abridging the freedom of speech.'' Our fourth amendment ensures
persons shall be free in their homes from ``unreasonable searches and
seizures.'' The fourteenth amendment declares that no State shall
``deny to any person within its jurisdiction the equal protection of
the laws.''
Those broad phrases do not provide easy answers to complicated cases.
When is a search or seizure unreasonable? When does a practice or law
abridge freedom of speech? When does a practice or law abridge equal
protection under the law?
Our first Chief Justice, John Marshall, correctly noted it is the
responsibility of the judicial branch to provide answers. How should a
Supreme Court Justice go about providing these answers?
Judge Sotomayor's background and record offer a model for how it
should be done. First, she brings to her work extraordinary academic
and experiential qualifications. She graduated at the top of her class
from Princeton University and from Yale Law School. She brings valuable
life experience from growing up in public housing in the Bronx, from
serving as a prosecutor in New York City, and from working as an
attorney in private practice. In 1992, she was appointed to the Federal
bench by President George Herbert Walker Bush. During the following 17
years, including 11 on the U.S. Court of Appeals for the Second
Circuit, she weighed in on over 3,000 panel decisions and authored
about 400 published opinions.
What this body of work shows, more than anything else, is that Judge
Sotomayor is diligent and prudent in her approach to hearing and
deciding cases. She thoroughly weighs the facts and carefully adapts
the principles expounded by previous courts to reach a just result in
each new set of circumstances. In fact, the reason many find it
difficult to pin a label on her--be it conservative or liberal--is
because her decisions do not follow ideological lines. Rather, they
emerge from close readings of previous cases and careful thought about
the implications of the particular facts. Clearly, the judge's respect
for Justice Cardozo isn't just an off-the-cuff remark. Hers is record a
judicial record that Benjamin Cardozo would be proud of.
Just as Cardozo faced the challenge of interpreting the Constitution
in a newly industrialized state, so, too, do we face the challenge of
interpreting the Constitution in a high-tech, globally interconnected
world. The answers to tomorrow's constitutional questions will not be
easy. But if we follow Judge Sotomayor's approach, our constitutional
interpretations will be built on the wise interpretations of the past.
We will, with this approach, have confidence that our Supreme Court
will stay true to the body of principles of justice and freedom that
are at the heart of our constitutional tradition.
Let me summarize. Judge Sotomayor has a stellar academic background.
She brings diverse and valuable life experiences. She has a
distinguished record on the bench, and she will bring a carefully
measured judicial approach and valuable insights to our Supreme Court.
Moreover, the value of the diversity that Sotomayor would bring to
the Court, as a woman, as an American of Puerto Rican descent, cannot
be overstated. We often talk about government by and for the people.
That is a cherished part of our tradition. We often talk about it in
terms of the diversity of those who serve in the executive branch. We
often talk about it being important in the diversity of those who serve
in the legislature, so we can bring valuable insights to bear. But
government by and for the people extends to the judicial branch as
well. We need to have the insights that flow from having judges with
many different life experiences.
I am confident Sonia Sotomayor will be a wise guardian of our
Constitution. Therefore, I urge my colleagues to join me in casting
their votes to confirm Judge Sonia Sotomayor as an Associate Justice of
the U.S. Supreme Court.
I yield the floor.
Mr. FEINGOLD. Mr. President, I want to say a few words about Judge
Sotomayor and about the hearing process we have just been through.
First, I commend Chairman Leahy and his staff for a remarkably well-
run proceeding in the Judiciary Committee. I think anyone who saw the 4
days of hearings would agree that the
[[Page S8837]]
process was scrupulously fair. Everyone got a chance to ask all the
questions they wanted to ask. They had the time they needed for follow
up questions, and for follow ups to those follow ups. No stone was left
unturned, even if the answers the Judge gave weren't always what the
questioner hoped to hear.
What the public doesn't see is the work that is done behind the
scenes to get us to that point. Not just the setup of the room and all
the complex preparations that go into the smooth running of the hearing
itself, but also the enormous effort to make all of the background
information that came to the Judiciary Committee available online
virtually immediately--all of Judge Sotomayor's speeches and articles,
over 100 letters and reports from people who know her, or organizations
that wished to express their views on her nomination, as well as all of
the materials received from the PRLDEF organization in response to the
Judiciary Committee's request. Chairman Leahy has set a new standard
for transparency and public access to Supreme Court nomination
proceedings, and I truly commend him for that, and I also thank him and
his staff for the tremendous work they have done over the last several
weeks.
The scrutiny to be applied to a President's nominee to the Supreme
Court is the highest of any nomination. The Supreme Court, alone among
our courts, has the power to revisit and reverse its precedents, and so
I believe that anyone who sits on that Court must not have a pre-set
agenda to reverse precedents with which he or she disagrees, and must
recognize and appreciate the awesome power and responsibility of the
Court to do justice when other branches of government infringe on or
ignore the freedoms and rights of our citizens. This is the same
standard I applied to the nominations of both Chief Justice Roberts and
Justice Alito during the last administration.
What we saw over 4 days of hearings on the nomination of Judge
Sotomayor was a thoughtful, intelligent, and careful judge, a person
committed to her craft and to the law, someone whose remarkable life
story and varied experience will add diversity and perspective, which
the Court sorely needs. Not only will Judge Sotomayor become the first
Latina Justice, and only the third woman, to serve on the Court, but
she will be the only Justice who has served as a trial court judge, and
she will have more judicial experience at the outset of her service on
the Court than any of her colleagues did. There is no doubt she is
highly qualified, and I think we saw during those 4 days of hearings
that she has an admirable judicial temperament and demeanor that will
serve her well on the Court.
Judge Sotomayor's record and testimony satisfied me that she
understands the important role of the Court in protecting civil
liberties, even in a time of war. She sat on a Second Circuit panel
that struck down portions of the National Security Letter statute that
was so dramatically expanded by the Patriot Act. And when I asked her
how September 11 changed her view of the law, she gave the following
answer:
The Constitution is a timeless document. It was intended to
guide us through decades, generation after generation, to
everything that would develop in our country. It has
protected us as a nation. It has inspired our survival. That
doesn't change.
Later, when we discussed the Korematsu case, she said:
A judge should never rule from fear. A judge should rule
from law and the Constitution.
Those words give me hope that she will have the courage to defend the
liberties of the American people from an overreaching executive or
legislative branch.
At the same time, she appreciates the deference the judiciary must
give to the legislature as it seeks to solve the problems facing the
American people. I don't see in her record or in her public statements
a burning desire to overturn precedent or to remake constitutional law
in the image of her own personal preference, and I certainly don't see
bias of any kind. I was also impressed with her record and statements
during the hearing on judicial ethics. Judge Sotomayor seems to
understand that the extraordinary power she will wield as a Justice
must be accompanied by extraordinary care to guard against any apparent
conflict of interest.
All that being said, I do want to express a note of dissatisfaction.
Not with Chairman Leahy, or with my colleagues on the Judiciary
Committee, and certainly not with Judge Sotomayor, but with a
nominations process that I think fails to educate the Senate or the
public about the views of potential Justices on the Supreme Court. I
have said before that I do not understand why the only person who
cannot express an opinion on virtually anything the Supreme Court has
done in recent years is the person from whom the American public most
needs to hear. It makes no sense to me that the current Justices can
hear future cases notwithstanding the fact that we know their views on
a legal issue because they wrote or joined an opinion in a previous
case that raised a similar issue, but nominees for the Court can refuse
to tell us what they think about that previous case under the theory
that doing so would compromise their independence or their ability to
keep an open mind in a future case.
I remain unconvinced that the dodge that all nominees now use--``I
can't answer that question because the issue might come before me on
the Court''--is justified. Nomination hearings have become little more
than theater, where Senators try to ask clever questions and nominees
try to come up with cleverer ways to respond without answering. This
problem certainly did not start with these hearings or this nominee,
but perhaps it is inevitable. The chances of the Senate rejecting a
nominee who adopts this strategy are very remote, based on the recent
history of nominations. Nonetheless, I do not think it makes for
meaningful advice and consent.
So I cannot say that I learned everything about Judge Sonia Sotomayor
that I would have liked to learn. But what I did learn makes me believe
that she will serve with distinction on the Court, and that I should
vote in favor of her confirmation.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. LIEBERMAN. Mr. President, it is a privilege to rise to speak on
behalf of President Obama's nomination of Judge Sonia Sotomayor to be
an Associate Justice of the U.S. Supreme Court.
This takes me back to a time, shortly after I was privileged to be
elected to the Senate, when President George H.W. Bush nominated David
Souter to be an Associate Justice of the Supreme Court of the United
States. David Souter had, by that time, been in law enforcement as an
attorney general of New Hampshire. As a former attorney general, I felt
an instant kinship with him. He had also been a trial judge in New
Hampshire, a member of the New Hampshire Supreme Court and, ultimately,
he sat on the Federal First Circuit Court of Appeals. He was proposed
to President Bush 41 by our former colleague, Warren Rudman, a Senator
from New Hampshire, a great Senator and a great friend.
I remember when Senator Rudman brought David Souter around and
introduced him after President Bush nominated him. It has been my
privilege to have had a friendship with David Souter in the company of
former attorneys general, particularly those who gather periodically to
speak of matters past, present, and future. I wanted to speak of
Justice Souter because, of course, it is his announcement of retirement
that opens the vacancy that President Obama has asked us to fill with
Judge Sonia Sotomayor.
In the case of now-Justice Souter, I was privileged in one of my
early votes here to join 89 of my Senate colleagues in voting to
confirm Justice Souter. With his retirement this summer, after two
decades on the Court, he has become the first Justice to retire of the
six Supreme Court Justices on whose nominations I have had the
privilege and responsibility of voting.
I wish to first thank and commend Justice Souter for his decades of
public service, generally, and, specifically, for his thoughtful,
distinguished service to the highest Court of our land. I know Justice
Souter is a very honorable, straightforward man. He is--if I may say so
as a New Englander--a quintessential New Englander. He carries with him
all the great constitutional traditions of the part of our country from
which I am proud to hail. He
[[Page S8838]]
brings with him some characteristics that are best associated with a
New Englander. He is straightforward. He is not one for flowery
rhetoric. He is one who is committed to integrity in his personal life,
as well as his public life. He has a great New England sense of humor--
probably not often seen in his decisions, but I bear personal testimony
here, though I am not under oath at the moment, to that great quality
he has.
I know there are some who have become critics of Justice Souter, who
have said he isn't what they thought he would be when he was nominated.
But when he was nominated, what he presented himself as was a man of
the law who believed in our Constitution, believed in the values that
underlie it, and one who would always do what he thought was right. He
has done that in his years on the U.S. Supreme Court. I haven't agreed
with every opinion Justice Souter has ever written, but this I know:
Every time he sat to write an opinion or to join an opinion, he did so
after the most careful consideration. He is an extraordinarily hard-
working, disciplined individual and, ultimately, he reached a judgment
that he felt was right, according to the requirements of our
Constitution. I salute this great American, this quiet American, but
this profoundly patriotic American, and wish him well in the years he
has ahead of him as he returns now, by his own choice, to his beloved
New Hampshire.
The life tenure of Supreme Court Justices--a lifetime appointment for
those who choose not to step down--defines, in many ways, the
importance of the Senate's role in providing advice and consent to the
President on Supreme Court nominees. I have always felt, from the time
I first came in--and the first vote I cast was on a controversial
nomination for Secretary of Defense. It was in 1989. I spent a lot of
time looking back at the history of the advice and consent clause. To
make a long story short, I felt it wasn't for me to vote for a nominee
of the President, to advise and consent. I did not have to feel that
nominee was the person I would have chosen but just that that nominee
was within the range of being acceptable and was prepared and qualified
for that job. There is a slightly higher standard for Supreme Court
nominees because they do serve lifetime appointments.
It is with that in mind that I approach this nomination of Sonia
Sotomayor. I have met with Judge Sotomayor and have reviewed her
judicial record. I followed her confirmation hearing before the
Judiciary Committee and, based on all that, I conclude, without
question, that she possesses remarkable intellectual and legal
credentials, has a distinguished record of experience in the public and
private sector, and a deep commitment to our country and our
Constitution. I will, therefore, vote affirmatively to consent to her
nomination to the Supreme Court.
Judge Sotomayor's 17-year record as a Federal judge speaks volumes
about her qualifications to serve on the Court, and that is why I feel
she more than passes the threshold for this lifetime appointment.
During 6 years as a trial judge on the U.S. district court and 11 years
as a judge on the court of appeals, Sonia Sotomayor has shown she
possesses a superior intellect, a commendable judicial temperament, and
an admirable respect for the role of established precedent in our legal
system.
It is usually and quite naturally true that those who know people
best are those with whom they have worked most closely. Those who have
worked most closely with Judge Sotomayor are consistent, even effusive,
in their praise for her personal attributes, her professional
qualifications, and her fairness. Chief Judge Dennis Jacobs of the
Second Circuit Court of Appeals, said:
Sonia Sotomayor is a well-loved colleague on our court--
everybody from every point of view knows that she is fair and
decent in all her dealings.
Another colleague on the Second Circuit, Senior Judge Roger Miner,
said:
I don't think I'd go so far as to classify her in one camp
or another. I think she just deserves the classification of
outstanding judge.
While the most significant facts about Judge Sotomayor are her
personal qualifications and her judicial record, I also note that women
are underrepresented on the Supreme Court of the United States. I say
that not just as a matter of numbers but as a matter of qualification.
I thank the President for this historic nomination of the first
American of Hispanic descent to the Supreme Court. This nomination was
clearly made on the basis of merit, not ethnicity or gender. I think it
is consistent with her merit. But acknowledging her ethnicity, her
selection represents another barrier that has been broken in American
life. When that happens in American life, the doors open wider for
every other American.
I will be proud to vote yes to confirm Sonia Sotomayor, of New York,
to be Associate Justice of the U.S. Supreme Court.
I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mr. Warner). The Senator from Nevada.
Mr. ENSIGN. Mr. President, I ask unanimous consent that the
Republican time for the next hour be allocated as follows: Senator
Ensign, 30 minutes; Senator Murkowski, 20 minutes; and Senator
Sessions, 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ENSIGN. Mr. President, I rise to speak about Supreme Court
nominee, Judge Sonia Sotomayor.
The words ``Equal Justice Under Law'' are engraved in the stone above
the entrance to the U.S. Supreme Court. This simple phrase, ``Equal
Justice Under Law,'' carries an immense amount of weight and
responsibility.
As a Senator tasked with the monumental responsibility of confirming
a Supreme Court nominee, it is with these four words in mind that I
carefully studied this Supreme Court nominee. There is no denying that
Judge Sotomayor is impressive. Her qualifications, diverse experience,
and personal disposition make her a worthy candidate for this
nomination. The fact that this is a proud moment for our Nation has not
been lost on me. This year, America has certainly filled the history
books. On the tails of his historic election, President Obama has
chosen to nominate the Nation's first Hispanic woman to the Supreme
Court. President Obama and Judge Sotomayor have made history, but the
impact they will have on future generations is so much greater.
Although, as a child, Judge Sotomayor could do little more than
dream. She was born in the Bronx, raised by a single mother after her
father passed away when she was 9 years of age. Her mother instilled in
her a deep value for education and a strong work ethic, which paid off
with a full scholarship to Princeton University. She graduated summa
cum laude from Princeton and went on to attend Yale Law School, where
she earned her juris doctorate. She is truly an inspiration for people
across our great country.
Judge Sotomayor's humble upbringing is reminiscent of another recent
judicial nominee, also of Hispanic heritage, who rose above his meager
means in New York to attend and graduate with honors from Ivy League
schools. And the similarities do not stop there. I am referring to the
American success story of Miguel Estrada, an individual equally
deserving of our respect.
Miguel Estrada came to America as a Honduran immigrant at the age of
17. With very little English in his vocabulary, he rose to the top of
the legal profession after graduating with honors from Columbia
University and Harvard Law School. He clerked for Supreme Court Justice
Anthony Kennedy and was a former Assistant Solicitor General of the
United States. Miguel Estrada served in the administrations of both
President Bill Clinton and President George W. Bush.
In 2001, President George W. Bush recognized his talent and nominated
him to the U.S. Court of Appeals for the DC Circuit. Unfortunately,
partisan politics came into play, and Estrada's record was not judged
purely on its merits. He did not receive the fair consideration that
has been given to Judge Sotomayor. He never even made it as far as a
confirmation vote. Miguel Estrada's nomination and expected ascension
to the Supreme Court was cut short by a Democrat filibuster--as a
matter of fact, seven Democrat filibusters that helped create a new
standard for judicial nominees and the Senate's constitutional role of
``advise and consent.'' Had he been given
[[Page S8839]]
the fair consideration he deserved, the Hispanic community would have
another great role model in our judicial system.
As I have previously stated, I am impressed by Judge Sotomayor. In
our meeting, I found her very personable and easy to talk with.
Unfortunately, our discussions during that meeting did little to
alleviate the concerns I had upon reviewing her record and her public
statements, including her testimony before the Judiciary Committee.
Judge Sotomayor's record and testimony have left me with more
uncertainty and doubt instead of the assurance that she has the ability
to rule with a fair and impartial adherence to the rule of law. I fear
that Judge Sotomayor, when seated on the Supreme Court bench, will not
be a zealous advocate for ``Equal Justice Under Law.'' Many of her
responses to me and to my colleagues on the Judiciary Committee were
troubling, not necessarily because of substance, but more due to the
lack of it.
I remain concerned that we just do not know who we will be getting on
the Supreme Court. The inconsistencies in Judge Sotomayor's testimony,
judicial record, and writings make it impossible to fully understand
her commitment to how she will interpret and uphold the Constitution.
This especially concerns me because a lifetime appointment to the
Supreme Court comes without the barriers of additional judicial review
that someone has in a lower court. The restraints of precedent that she
was under as a district court and circuit court judge will not apply.
Even if I was to solely consider her judicial record, I cannot in
good conscience dismiss her cursory treatment of cases dealing with
serious and important constitutional questions. Some of her decisions
have run contrary to the Constitution, were decided in opinions lacking
analysis, and are consistent with liberal political thought.
For example, there was her 2006 private property decision that
permitted the government to take property from one developer and give
it to another.
And we have heard a lot about her 2008 Ricci decision, recently
overturned by the U.S. Supreme Court, which would have effectively
allowed employers to engage in reverse discrimination, so long as their
claims of their actions were motivated by a desire to avoid conflicts
with favored minority groups. A majority of Justices found that Judge
Sotomayor misapplied the law.
Then there was her 2009 second amendment decision in Maloney v. Cuomo
that would give States the power to ban firearms. The unsigned
decision, joined by Judge Sotomayor, held that New York's state statute
does not interfere with a fundamental right. The opinion also dismissed
the argument that a complete ban violates the Second Amendment by
citing Supreme Court cases from the 19th century holding that the
Second Amendment applies only to the Federal Government and not to the
States. To me, the Maloney ruling is an indication that Judge Sotomayor
does not view the Second Amendment as protecting a fundamental right.
This is further supported by a 2004 decision in U.S. v. Sanchez-
Villar in which she also joined a decision that flatly denied gun
possession as a fundamental right. While that decision pre-dated
Heller, the Maloney decision occurred more than six months after the
Heller decision, and yet Sotomayor again dismissed the possibility that
the second amendment protects a ``fundamental right.'' Once again in
the decision, no analysis was given as to why. Her conclusion was that,
one, the Second Amendment does not apply to the States and, two, the
Second Amendment does not protect a fundamental right.
Had Judge Sotomayor looked to the history of the Fourteenth
Amendment, the Civil Rights Act, and the Freedman Bureau's Act, she
would have recognized--or at least she should have recognized--that
they were enacted to ensure that the constitutional rights of freedmen
were protected against State infringement. This is especially true as
it relates to the Second Amendment and the practice by States and
localities that were outlawing the ownership of firearms by newly freed
slaves.
Given this information, coupled with Judge Sotomayor's record, I
believe it is reasonable to conclude that she has a bias against
firearms and our constitutional right to ``keep and bear arms.'' Should
we expect her to rule differently when the Supreme Court takes up the
Maloney case or the Ninth or Seventh Circuit cases that deal with the
question of whether the Second Amendment applies to the States?
Judge Sotomayor appears to believe that the Second Amendment is not
an individual, fundamental right. It is, in fact, a fundamental right
granted to all Americans and enshrined in our Constitution. The Second
Amendment is the cornerstone of our Bill of Rights. If it is chipped
away or infringed upon in any way, our freedom and liberties will be
compromised. It is my fear that Judge Sotomayor will threaten Second
Amendment rights for all Americans.
This was not the first time her bias and propensity to rule with
purpose-driven results impacted her judicial decision making.
Unfortunately, Judge Sotomayor's record and testimony provides more
uncertainty and doubt than a declaration to her ability to rule with a
fair and impartial adherence to the rule of law.
Presidents, Senators, judges, and Supreme Court Justices alike take
an oath to preserve, to protect, and to defend the Constitution. It is
our most solemn duty. Judges are expected to be tethered to the
Constitution and impartially apply the law to the facts. The American
people overwhelmingly reject the notion that unelected judges should
set policy or allow their social, moral, or political views to
influence the outcome of cases. I worry about her prior dismissal of
the goal of judicial impartiality as an unattainable ``aspiration.''
And I disagree that embracing her biases is a good thing.
Judge Sotomayor's views on international law are also troubling.
While the use or consideration of foreign and international law in
judicial decision-making is not new and remains a subject of
controversy, Judge Sotomayor appears to embrace using international
standards or laws to decide U.S. constitutional questions.
I asked Judge Sotomayor about her thoughts on the use of foreign law.
Her answers on this worrisome issue only confirm a contradictory
position reflected in many of her public statements and an apparent
endorsement of using foreign law as a source of creative ideas.
During the confirmation hearings, Judge Sotomayor was asked if she
agreed that ``there is no authority for a Supreme Court justice to
utilize foreign law in terms of making decisions based on the
Constitution or statutes.'' This was her response:
Unless the statute requires you or directs you to look at
foreign law . . . the answer is no. 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.
She went on to say:
I will not use foreign law to interpret the Constitution or
American statutes. I will use American law, constitutional
law to interpret those laws, except in the situations where
American law directs a court.
This seems fairly straightforward. But her answers to written
questions are contradictory, saying:
In limited circumstances, decisions of foreign courts can
be a source of ideas informing our understanding of our own
constitutional rights.
To the extent that the decisions of foreign courts contain
ideas that are helpful to that task, American courts may wish
to consider those ideas.
This was not the only time she offered support for utilizing foreign
law. On April 28, 2009, Judge Sotomayor gave a speech to the ACLU of
Puerto Rico entitled ``How Federal Judges Look to International and
Foreign Law Under Article VI of the U.S. Constitution.'' Article VI
makes the Constitution and subsequent laws the ``supreme law of the
land.'' In her April speech, she gave a broad defense of the practice
by some American judges of looking to foreign and international law as
a source of ``good ideas'' in deciding questions of American law. She
stated that U.S. courts can use foreign law to ``help us understand
whether our understanding of our own constitutional rights f[a]ll[s]
into the mainstream of human thinking.''
Apparently, the sentiments Judge Sotomayor expressed this past April
are not new. In 2007, she wrote a forward to a book on international
judges, titled ``The International Judge,''
[[Page S8840]]
where she assumed there is value to ``learn[ing] from foreign law and
the international community when interpreting our Constitution.''
I believe, and Justices Roberts, Scalia, and Thomas agree, it is
illegitimate for judges to look to foreign sources for guidance in
interpreting the Constitution and laws ratified and enacted by ``We the
People, of the United States.'' Judge Sotomayor has also specifically
criticized Justices Scalia and Thomas for their opposition to relying
on foreign law to interpret the Constitution. She has even suggested
that we will lose our influence globally if we are not open to foreign
and international law.
While Judge Sotomayor acknowledges that judges are prohibited from
treating foreign statutes or foreign court judgments as binding, she
has publicly embraced their use in formulating decisions. Judge
Sotomayor attempted to distinguish the ``use'' of foreign law to decide
American legal questions from the act of ``considering'' foreign law by
``us[ing] the ideas of foreign courts in some of our decision-making.''
According to Sotomayor, any effort to ``outlaw the use of foreign or
international law . . . would be asking American judges to . . . close
their minds to good ideas.'' She further stated, ``How can you ask a
person to close their ears? Ideas have no boundaries. Ideas are what
set our creative juices flowing.''
I agree, good ideas are important. Aren't we fortunate that our
Constitution is full of them? And our Constitution will always be the
supreme law of our land.
Unfortunately, we have already experienced the negative impact of so-
called good ideas from foreign law and how some on the Supreme Court
may be using them to erode our constitutionally protected rights. Let's
take a look at the controversial 2005 Supreme Court decision of Kelo v.
New London.
It appears the global ``good idea'' of ``Sustainable Development''
from a U.N. Earth Summit may have influenced the majority decision to
widely expand the definition of the ``Takings Clause'' and eminent
domain from its original purpose--``public use'' for bridges, roads, or
traditional government uses.
In Kelo, I believe the Court incorrectly ruled against the private
property owners, allowing the City of New London, CT, to transfer the
private property from long-time homeowners to a private developer for
what the city considered a greater ``public purpose,'' instead of
public use to increase the city's tax base.
Again, I believe this is a troubling interpretation of the
Constitution, and the Kelo decision suggests the danger of allowing
international or foreign good ideas to impact interpretation of U.S.
constitutional questions.
I further fear that she may be less restrained by the text of the
Constitution and more inclined to embrace judicial activism. Throughout
her hearing, Judge Sotomayor insisted her judicial philosophy was,
``fidelity to the rule of law,'' and that judges are required to defer
to the policy choices made by Congress. Unfortunately, she declined to
explain how she would apply that principle in practical terms.
When asked how her commitment to the ``rule of law'' would guide her
judgment on whether the Second Amendment protected a fundamental
constitutional right against encroachments from States and local
governments, Judge Sotomayor declined to answer other than to vaguely
commit to look at the Supreme Court's prior decisions. And when asked
whether she views the Constitution as a ``living, breathing, evolving
document,'' Judge Sotomayor professed that the Constitution ``is
immutable'' and ``has not changed except by amendment.''
Yet, once again, her own responses to Senators' questions adopt a
strikingly different tone. When asked to distinguish between judicial
decisions that apply a broadly-written statute to specific
circumstances based on a judge's view of ``common sense'' and a
legislative act that endorses and codifies a court's decisions, Judge
Sotomayor argued that a court's action--with precisely the same
practical effect as the action of the legislature--does not amount to
``making law'' solely because it is a judicial act.
If, as her written answers argue, Judge Sotomayor believes judges
cannot make law solely because they are judges, her repeated disavowals
of judicial law-making while sitting before TV cameras are essentially
meaningless.
In conclusion, when thinking back on the phrasing engraved in marble
above the entrance to the U.S. Supreme Court, ``Equal Justice Under
Law,'' Judge Sotomayor's record and testimony provide uncertainty and
doubt that she will rule with a fair and impartial adherence to the
rule of law. Therefore, I respectfully oppose her nomination because
she has given no assurances that the Second Amendment is an individual,
fundamental right; she has demonstrated a propensity to rule with
purpose-driven results; she has indicated a particular interest in
considering international standards or laws to decide U.S.
constitutional questions; and her televised testimony contradicted much
of her public record and professed judicial philosophy.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska.
Ms. MURKOWSKI. Mr. President, a decision as to whether to confirm a
President's nominee to the Supreme Court is one of the most significant
decisions any of us will make during our Senate careers. The precedents
that are established by the U.S. Supreme Court do not merely affect the
litigants but the entire fabric of American society, often for
centuries.
Justices of the Supreme Court enjoy life tenure. They are not
accountable to the President who appointed them or to the Senators who
voted to confirm them. They are not directly accountable to the
American people. Yet it is undeniable today, as it has been since the
founding of our Republic, that the Supreme Court is relied upon as the
last line of defense against the loss of our liberties.
It is critical that the American people have the highest confidence
in the Supreme Court and its objectivity. In a Democratic society, the
credibility of any institution relies on the consent of the governed.
Those who seek nomination to the Supreme Court must be ever vigilant in
their words and in their deeds that they do nothing to undermine that
credibility.
Mr. President, after lengthy, lengthy introspection, I rise this
evening to inform my colleagues that I am unable to support the
nomination of Judge Sotomayor to serve on the Supreme Court. This is a
difficult result for me because I like Judge Sotomayor on a personal
level. I visited with the judge for nearly an hour when she came
through to meet with Senators. She is absolutely an engaging
individual, and I left thoroughly impressed with her intellect and
certainly with her resolve. She was open to my invitation to visit
Alaska, and that invitation still stands.
The nomination of Judge Sotomayor, who would be the first woman of
Puerto Rican descent to serve on the Supreme Court, is indeed a
historic one. Many were disappointed that President Bush did not
nominate a woman to fill Justice Sandra Day O'Connor's seat on the
Supreme Court. Justice O'Connor herself underscored the importance of
placing women on the bench and in other high governmental positions in
an interview with the National Law Journal that was published on May
26, 2009. So I am pleased that President Obama has nominated a woman to
succeed Justice Souter.
Judge Sotomayor's education and experience certainly qualify her for
the position for which she was nominated--experience as a prosecutor
and in the private practice of law, 17 years service on the Federal
trial and appellate bench, a gifted and inspiring law professor.
Judge Sotomayor's rise from the South Bronx to Princeton and Yale Law
School is truly an American success story. Her excellence in practice
as a prosecutor and private practice attorney is also an American
success story. Her rise through the ranks of the Federal Court system
is an American success story. And here in America, we celebrate success
stories such as Judge Sotomayor's.
But as much as I like Judge Sotomayor and am impressed with the
obstacles she has clearly overcome, there are aspects of Judge
Sotomayor's record that make me uncomfortable. I have heard from about
1,400 Alaskans
[[Page S8841]]
who are troubled by what they know of Judge Sotomayor as well, and this
discomfort arises from Judge Sotomayor's speeches as well as her
decisions in key cases involving the second amendment and property
rights.
Alaskans, by their nature, are independent thinkers, and this
nomination has rightly engaged their attention. So let's begin with the
speeches.
In the National Law Journal interview I referred to a moment ago,
Justice O'Connor reasserted her viewpoint that ``a wise old woman and a
wise old man, at the end of the day, can reach the same conclusion.'' I
agree with that conclusion. But this is a viewpoint that Judge
Sotomayor has challenged in one form or another on some eight different
occasions.
During the confirmation hearings I was looking for a simple,
straightforward statement that Judge Sotomayor had come to appreciate
that perhaps her remarks were ill-conceived; that she would not use
those words if she were delivering those speeches today. During the
confirmation hearings Judge Sotomayor used many words to justify and to
explain her statements. She argued vigorously that she was
misunderstood. But I am still not clear she understands the impact the
plain meaning of her words had upon the American people or the impact
they potentially could have on the credibility of the Court.
Many of my constituents in the State of Alaska are not impressed with
this talk. Alaskans champion diversity. In the Anchorage school
district where my children attended elementary and middle school, more
than 90 different languages are spoken. About 20 percent of Alaskans
are of Alaska Native ancestry. Yet we reject the notion that coming
from a particular background makes you wiser than one who has a
different background. Alaskans judge each person as an individual.
Alaskans respect those who respect our lifestyle and our values--
hunting and fishing and sustaining one's self from the land,
responsible development of our natural resources, and a government that
restrains itself from intruding on the lawful choices of American
citizens.
About 63 percent of our State is owned by the Federal Government.
Alaska is constantly in Federal court defending attacks to our ability
to access Alaska's lands and develop our economy, and often these
issues end up before the Supreme Court. Many Alaskans were disappointed
recently with the outcome of the Exxon Valdez punitive damages case.
This may explain why so many Alaskans are so attuned to the objectivity
of those nominated to serve on our Supreme Court.
We are initially suspicious of those who are educated at Ivy League
schools and spend their entire careers in the Boston-Washington
corridor. Alaskans wonder whether those with this background truly
understand the slice of the American experience that we live in the
49th State, and with good reason.
I would not expect that Judge Sotomayor would devalue her own
experiences. But neither should she have suggested that the experiences
of others would lead them to decisions of lesser wisdom. One's diverse
background does not and should not diminish the value of another's
experiences.
All of this leads me to question whether Judge Sotomayor will
consider the pleas of those with experiences different from her own
with the objectivity that is demanded of a Supreme Court Justice. My
constituents are also troubled by the speech in which Judge Sotomayor
expresses her notion that the appellate courts are where policy is
made. Judge Sotomayor has subsequently explained that the point she was
trying to make is that the courts of appeal establish precedent and the
district courts do not. But there is a difference between policy and
precedent, and my constituents don't believe Judge Sotomayor would have
used the words ``make policy'' to mean ``establish precedent.''
They believe that she really did mean ``make policy.'' Alaskans get
nervous when courts make policy decisions. Particularly those policy
decisions that infringe upon our constitutional rights, as Alaskans
understand them.
And no constitutional issue concerns my constituents in Alaska more
than the second amendment. They question whether Judge Sotomayor's
experiences enable her to fully understand why people in the West fear
the creep of government regulation on their second amendment right to
bear arms. Judge Sotomayor has dealt with second amendment issues on
two occasions. Neither inspires confidence.
Let me focus on the 2009 Maloney decision. Maloney presented the
question whether the second amendment protects citizens from State
interference with their right to keep and bear arms. It was heard by a
three judge panel in the Second Circuit. Judge Sotomayor served on that
panel. Maloney was one of the first cases to construe the second
amendment following the Supreme Court's landmark 2008 decision in
Heller.
Judge Sotomayor's panel held that the second amendment did not
protect citizens from state interference. It reasoned that it was
constrained by the U.S. Supreme Court's 1866 decision in Presser v.
Illinois.
But as the Supreme Court explained in Heller, the Presser case said
nothing about the second amendment's meaning or scope, beyond the fact
that it does not prevent the prohibition of private paramilitary
organizations.
Maloney had nothing to do with private paramilitary organizations.
The sole question in Maloney was whether the State of New York could
ban the possession of a particular kind of weapon.
A three judge panel in the Ninth Circuit, a circuit which is often
regarded as one of the more ``liberal'' circuits, reached quite the
opposite conclusion from Judge Sotomayor's panel. The case was Nordyke
v. King.
It concluded that Heller left little doubt that the second amendment
is a fundamental right. Accordingly the second amendment is
incorporated into the 14th amendment and applies with equal vigor to
the States. To the Ninth Circuit panel this was not a question of
ideology or judicial activism. It was the undeniable outcome of
Heller's reasoning.
But if Judge Sotomayor and her colleagues really believed that courts
of appeals must await additional guidance from the Supreme Court before
determining whether the second amendment constrains State action they
could have stopped there. Instead, the Sotomayor panel went on to
conclude that the rights secured under the second amendment are not
fundamental rights. It was not necessary to reach any conclusion on
this issue because the panel had already decided that the second
amendment doesn't apply to the States. So why did Judge Sotomayor's
panel go out of its way to make this point?
I am also disappointed that Judge Sotomayor did not write a separate
opinion in Maloney. On a question as significant as whether the second
amendment is a fundamental right, I would have expected that Judge
Sotomayor would have written a thoughtful and scholarly opinion.
Instead she signed on to an analysis of the second amendment that is
widely regarded as superficial.
Unfortunately, this is not the first time that Judge Sotomayor failed
to write a substantial opinion on a significant constitutional issue.
Some of my colleagues have discussed their concerns with Judge
Sotomayor's handling of the New Haven firefighters' case.
I would like to take a moment to discuss the Didden case which
involves property rights and constitutional limits on the scope of
eminent domain.
The reasoning of Didden is particularly perplexing. The panel on
which Judge Sotomayor sat concluded that Didden's constitutional
challenge to the taking of his property was time barred. If a suit is
time barred there is no reason for judges to reach the merits of the
case.
Yet for reasons I cannot fathom, Judge Sotomayor's panel went on to
do just that. They performed a superficial analysis of whether the
taking of a piece of private property by a municipality for a drugstore
is a constitutionally permissible public purpose. The Supreme Court
invited lower courts to scrutinize a claim of public purpose to
determine whether it is pretextual. Judge Sotomayor's panel never
analyzed this question.
They simply concluded that Didden's constitutional rights were not
violated. This analysis was dicta. Not necessary to the outcome of the
case. But it is a most troubling piece of dicta because it
[[Page S8842]]
undermines the constitutional protection for private property. It could
be used to limit the rights of litigants in other cases.
My professional training is no different than that of the other
lawyers in this body. In law school you spend 3 years reading appellate
decisions day in and day out. Hundreds of appellate decisions--over a
3-year period. We are taught that the measure of a judge is in the
quality of her analysis.
The strength of a judge's reasoning is as important, if not more
important, than who wins and who loses. It is important because that
reasoning is part and parcel of the precedent that is used in deciding
future cases.
In three separate cases of significant constitutional import, Judge
Sotomayor's panel failed to provide the rigorous analysis we commonly
expect of future Supreme Court Justices. That troubles me deeply.
I appreciate that the decision of who to nominate to the Supreme
Court belongs to the President. However, if advice and consent is to be
meaningful the Senate cannot be a mere rubberstamp on the President's
decision.
My decision to oppose Judge Sotomayor's nomination is not based upon
partisanship, ideology or the recommendations of any outside interest
group. It is the product of reservations I have about the positions
that Judge Sotomayor has taken in speeches on multiple occasions over a
period of years. It is based on the brief and superficial treatment she
has given to important constitutional questions. Equally troubling is
the fact that about 1,400 Alaskans have arrived at the same conclusion.
This is not the conclusion I would have preferred to announce but it
is one that is compelled by Judge Sotomayor's record.
I yield the floor.
I 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. SESSIONS. Mr. President, I ask unanimous consent the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, we had a number of Members discuss the
second amendment issue that was dealt with by Judge Sotomayor in two
different cases. It is an important question and I think her nomination
raises very serious concerns about it. I would like to try as fairly as
I can to analyze the circumstances in her dealing with these issues and
why I think it is a problem that Senators rightly have objections to.
The second amendment is in the Constitution. It is the second of the
first 10 amendments. It is part of the Bill of Rights. If you remember,
the people were not so happy with the Constitution. They wanted to have
a guarantee of individual rights that they as American citizens would
possess no matter what the Federal Government or anyone else wanted to
do about it. So they passed the right not to establish a religion, free
speech, free press, the right to jury trial and other matters of that
kind in the first 10 amendments, as adopted.
The second amendment was one of those, of course. It says:
A well regulated militia being essential to the security of
a free State, the right of the people to keep and bear arms
shall not be infringed.
The right of the people to keep and bear arms shall not be infringed.
Over the years, laws have been passed that caused difficulties and
that began to overreach with respect to the second amendment right. The
American people have gotten their back up, as the Senator from Alaska
told us, Senator Murkowski. People in Alaska, people in Alabama, people
all over America are concerned about this. It is a constitutional
right. It has been there since the founding of the Republic.
I think most scholars have believed for some time that it is, in
fact, an individual right, that the first clause regarding the well-
regulated militia did not undermine the final declaratory clause which
said:
The right of the people to keep and bear arms shall not be
infringed.
But no Supreme Court case had ruled on that squarely until last year
when the Supreme Court took up the Heller case, which was in the
Federal city we are in today, DC. The Supreme Court in the Heller case
said it was an individual right and it prohibited the city of
Washington, DC, from effectively barring any citizen in the District
from having a gun.
It was an exceedingly broad ban on guns. But I would note something
that ought to be remembered: It was a 5-to-4 decision--four members of
the Supreme Court did not agree. Some people do not agree.
One of our Democratic colleagues yesterday said of the result in
Heller, that it was ``a newly minted and narrowly enacted
constitutional right.''
That is cause for concern. The Constitution, I don't think, is newly
minted. I don't think the Court created a right. I think the Court
simply declared a right that was plainly in the Constitution. So this
is part of our concern.
I would suggest that it is a fragile right, however, based on the way
some of the courts have been ruling and based on how Judge Sotomayor
ruled.
Somebody had raised the point several times that it is somehow not
right that the National Rifle Association here, at the end, after the
hearings, declared that they think that Judge Sotomayor should not be
confirmed. Certainly they were reluctant to be engaged in this debate.
But for the reasons I would note--and Senator Murkowski and others have
noted--I don't think they had much choice, because it is a critical
thing we are dealing with here, the next appointment to the U.S.
Supreme Court.
In a year after the Heller case was decided that the right to keep
and bear arms is a personal or individual right and it cannot be
abridged by the Federal Government, the case came before her as to
whether the second amendment applied to States and cities.
What if other cities were to declare that you couldn't have a gun in
the city, or a State were to declare you couldn't have a firearm, or if
a State were to place massive restrictions on the use of personal
weapons? She took that case, the first major case after Heller to deal
with this issue. Anyone who is familiar with the appellate courts in
America, as this judge would be, would know this was a big, big, big
case, a case of great importance coming on the heels of the widely
discussed Heller decision. In it, she rendered an exceedingly short
opinion. In it, she found it was ``settled law'' that the second
amendment does not apply to individual Americans in States or cities.
The city or State could completely bar them from having any kind of
gun.
In the Heller case, to be fair with her, this is what the
circumstances were. There was an old 1800s case that basically held
this way. It basically held that the second amendment did not apply to
the States. I think the judge could rightly conclude that she may have
been bound by that case. However, in the Supreme Court decision, they
put a footnote in it and said: we are not deciding the question of
whether the second amendment applies to the States because we are
deciding a case in the District of Columbia, and the law in the
District of Columbia is not city law. The law in the District of
Columbia is U.S. Government law. They put a footnote and indicated that
the incorporation doctrine was out there, but that they would review
that in the future.
My first point is this: I don't believe it would be appropriate to
say it is settled law that the second amendment does not apply to the
States after the Heller case. That troubled me that she said that.
Judge Sotomayor made a decision in the Maloney case, the first major
case after Heller. It was only eight paragraphs in a case that everyone
knew was of great importance. And only one paragraph dealt with the
question of whether the second amendment would apply to the States.
Those who have supported Judge Sotomayor have correctly noted that the
seventh circuit heard the same kind of case some months later and they
agreed with the Maloney case and Judge Sotomayor. They spent, however,
a number of pages on it. They spent 2\1/2\ pages on the question of
whether it was incorporated against the States. But they concluded that
even with the footnote in the Heller case, they concluded that the more
clear authority was still this old case that is out there in the 1800s.
[[Page S8843]]
They did not say, however, that it was settled law.
The ninth circuit took up the very same case just a few months after
Judge Sotomayor's Maloney decision. In a 19-page opinion that discussed
in great depth the important constitutional issues, the panel said,
when you read the Heller decision, when you consider the footnote of
the Supreme Court's opinion where they said they didn't explicitly
decide whether it applied to the States, they found differently. They
found the second amendment does apply to the States and cities, and the
States and cities must comply with it, and they can't ban all guns.
They found not only that it was not settled law. To the contrary, they
found that the footnote in the Supreme Court opinion ``explicitly left
open this question.'' And because they found the question was left open
by the Supreme Court, they felt they were authorized to consider the
constitutional laws and questions that are important and render a
decision that they thought was the right constitutional decision. That
is why they went forward in that fashion.
At the hearing, the judge was asked a number of questions about this.
I didn't find those questions answered very persuasive, frankly. In
some instances, I found them confusing. There was no retreat that I
heard from this untenable position. In answering questions from Senator
Hatch, the judge said that:
The Supreme Court didn't consider [the second amendment]
fundamental [in the Heller case] so as to be incorporated
against the state. . . . Well, it not only didn't decide it,
but I understood Justice Scalia to be recognizing that the
[C]ourt's precedent held that it was not fundamental.
In the course of her decision she also found a critical question,
that the second amendment is not a fundamental question. The judge was
just wrong on that in a big, big case. It is the kind of thing you
shouldn't make a mistake on. In the majority's footnote on this issue,
the Court expressly reserved the question of whether the second
amendment applies to the States. The footnote said this:
With respect to Cruikshank's
one of the old cases
--continuing validity on incorporation, a question not
presented in this case . . .
So they explicitly said that they didn't were addressing this issue.
But it is pretty clear that the doctrine that allows the Bill of
Rights, the first 10 amendments, to apply to the States. That doctrine
has developed dramatically in the 20th century, over the last 100
years. Virtually every one of the 10 amendments has been incorporated
against the States. But the Second Amendment has not yet been applied
to the States. To me, that is an odd thing in light of the doctrine of
the incorporating of the first 10 amendments as protections for
individual Americans against both the Federal Government and State and
local governments. That doctrine has developed great strength and power
over the last 100 years. Few people would want to go back. I think most
people would be awfully surprised to learn that the second amendment
would not be one of those applied to the States. It certainly, in my
opinion, is not settled law.
This case was dealt with in a most cursory manner. It dealt with a
matter of huge national importance. It is the kind of case that legal
scholars watch closely. It was an exceedingly short opinion, a few
paragraphs. It showed little respect for the seriousness of the issue.
It didn't discuss it in any depth. It incorrectly stated it was settled
law that the second amendment would not apply to the States. These are
the problems we have with it.
Judge Sotomayor now seeks to be on the Supreme Court. And with regard
to the 5-to-4 decision in Heller and to the question of whether she
should recuse herself, as asked by Senator Kyl, she indicated that if
her case came up, she would recuse herself. It could come before the
Supreme Court. It is that important. But if one of the other cases
raising exactly the same issue came up, she refused to say she would
recuse herself. Of course, if her case comes up, it is a matter of
ethics that she would have to recuse herself. I thought that since
having already clearly decided precisely the same issue the Supreme
Court would have to deal with, she ought to have indicated to us that
since she expressed her opinion on it, she wouldn't sit on the case.
But that did not happen.
I will share likewise another concern we have about the firefighters
case and how that was handled in such a short manner. The firefighters
contended that they had studied hard. They had passed a promotion exam.
They were on the road to being promoted. The city, because of political
complaints about the fact that certain groups did not pass the test in
a way that raised concerns, decided they would give up and not have the
test and wipe out the test and not follow through with the test. The
firefighters felt they had done everything possible, and they
challenged that. Indeed, later the Supreme Court held that no evidence
was ever presented that the test was not a fair and good test. Indeed,
they had taken great care to get good people to help write the test in
a way that would be neutral and fair to all groups of people and would
not have any kind of unfair advantage.
When that case came before the judge, I was very disappointed that
she and her panel treated it as a summary order. A summary order is
reserved for cases that present no real legal question. Summary orders
are not even circulated among the other judges in the circuit. Here, it
was a summary order that did not even adopt the opinion of the lower
courts that had ruled in this fashion. It just summarily dismissed the
firefighters' claim and rendered judgment in favor of the city which
had altered the plan for promotion. It was basically done because of
their race.
The equal protection clause of the Constitution says that all
American citizens are entitled to equal protection of the laws,
regardless of race. That is what their complaint was, one of the
complaints. I would note that this was not even an opinion. It was
basically a line or two summarily dismissing this.
Then one of the other judges on the court apparently found out this
opinion had been rendered in a case that struck him, apparently, as a
matter of real importance, a case that ought not to be disposed of by a
summary order, that the firefighters were at least entitled to an
opinion. And by the way, they never got a trial. Basically it was
dismissed prior to trial on motions. So after great debate within the
circuit, a little bit of a dust-up within the circuit, by a 7-to-6
margin, Judge Sotomayor casting the decisive seventh vote, they decided
not to rehear the case and any precedent that may exist in the circuit.
But at that point, I guess as part of the process of confrontation that
arose there, the panel issued an opinion that adopted the lower court
opinion, a procuring opinion. They didn't write their own opinion but
basically adopted the lower court's opinion.
It was from that decision, as a result of by chance another judge
heard about it, not through the normal processes but, according to
Stuart Taylor's article, from seeing it on television, that the case
got some attention. And the Supreme Court agreed to hear it and
reversed the case and rendered a judgment in favor of the firefighters.
I think that was not responsible. That was a huge case of major
constitutional import. It should have been written in detail. Any
person, any judge should have done that, particularly one who would be
considered for the Supreme Court.
So I will say those two opinions to me are troubling in that I think
they were wrong, No. 1. And No. 2, they were exceedingly short, too
short, when you consider the seriousness of those issues.
I yield the floor.
Mr. ENZI. Mr. President, I rise today to discuss the nomination of
Judge Sonia Sotomayor to serve as an Associate Justice of the U.S.
Supreme Court. Judge Sotomayor has a long career as a jurist with many
cases for Senators to review and determine how she may address cases
brought before the Supreme Court. Judge Sotomayor is clearly an
accomplished attorney and intelligent person who overcame many
obstacles and came from a humble beginning to rise to this nomination.
However, in that long record I have found a tendency to at times place
more emphasis on personal experience than the most fundamental parts of
our Constitution.
I must oppose Judge Sotomayor's nomination.
[[Page S8844]]
I am concerned about Judge Sotomayor's past rulings and statements
during the Senate Judiciary Committee hearings about the second
amendment as a fundamental right. The Supreme Court's ruling in 2008 in
the Heller case confirmed that the second amendment's right to keep and
bear arms includes the right of American citizens to have weapons for
personal self-defense. The Supreme Court has not yet reviewed an
incorporation case involving the second amendment, but its second
amendment opinion last year noted that a due process analysis is now
required. Earlier this year, when Judge Sotomayor and the Second
Circuit Court of Appeals ruled on Maloney v. Cuomo determining that the
second amendment is not a fundamental right, they relied on rulings
from the 1800s rather than following the 2008 Supreme Court ruling.
The second amendment of our Constitution guarantees the fundamental
right of an individual to keep and bear arms. This is clear to me and a
clear legal precedent set by the Supreme Court.
As a father and grandfather, who strongly believes in the rights of
the unborn, I am also troubled by Judge Sotomayor's past affiliation
and leadership of an organization, the Puerto Rican Defense and
Education Fund, which has taken positions on abortion that I find
unsettling. Judge Sotomayor's case record does not include direct
rulings on abortion issues, so we must look at her history with this
organization. The fund, while Judge Sotomayor served in a leadership
capacity, filed briefs with the Supreme Court not only supporting
abortion rights but in support of Federal funds for abortion services.
I could not disagree more with these positions, and I cannot help but
wonder how Judge Sotomayor would use her experiences with the fund to
rule on a possible case before the Supreme Court. Unfortunately, she
would not provide a satisfactory answer or position when my colleague
from Oklahoma, Senator Coburn, asked her direct questions during the
Judiciary Committee process.
The issue of international law is another area of concern. Judge
Sotomayor has stated that ideas have no boundaries, but we must
remember that nations do have boundaries as well as laws that govern
actions within those boundaries. The U.S. Constitution is the highest
law of our land and the basis of our Nation's sovereignty. It may be
good and well for academics to discuss international laws, or even
domestic laws of other countries, as they compare to the United States,
but when making a ruling, a member of the U.S. judicial branch must
rely on the laws of this Nation.
Finally, I would like to address the issue of judicial impartiality.
Judge Sotomayor's statements about her ability to judge cases better
than others based on her background are certainly troublesome. These
statements have been vetted in the Judiciary Committee and certainly
through the media. The statements warrant further discussion, however.
As public figures, I, and the rest of my colleagues, may be faced with
situations where a comment can be taken out of context. A comment that
is repeatedly used in prepared remarks, however, should be interpreted
as showing the true thoughts and beliefs of the speaker.
I believe the United States is a great nation because of the
foundation of our government, one element of which is an independent
judicial branch where we believe that justice is blind. This is a
critical element of our system and a part of the judicial oath. I can
agree that our personal backgrounds lead us to look at situations
differently, but I cannot agree that judges should allow their
backgrounds to determine a case. Judicial decisions must be based on
facts. When the facts or the Constitution comes into conflict with
Judge Sotomayor's feelings and past experiences, I am not confident
which side she will ultimately take.
I voted against Judge Sotomayor's nomination in 1998 to the Second
Circuit Court of Appeals. At that time, I shared the concern of many of
my colleagues about Judge Sotomayor's positions and her view of the
role of the Judiciary. While I hold Judge Sotomayor in the highest
respect, I believe my concerns then are borne out by her record now. I
have no reason to believe anything will change in the future.
I understand that Judge Sotomayor has support from many of my
colleagues, and I hope they will listen to the concerns I and others
are raising. I hope they will take the time to fully consider the
impact of Judge Sotomayor's positions on future decisions of the
Supreme Court as the Court's decisions will affect our entire Nation.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. CASEY. Mr. President, I rise tonight, as so many have, in the
last several days, especially to speak about the nomination of Judge
Sonia Sotomayor to be on the U.S. Supreme Court.
As we all know, she is a distinguished Federal jurist who has been
nominated to serve as an Associate Justice on the U.S. Supreme Court--a
critically important decision that the Senate is charged with making to
advise and consent on such nominations.
Sonia Sotomayor's life story is an authentically American story. It
is a story with which so many people in this capital and across the
country can identify. It is a story of hard work and sacrifice. It is a
story of struggle and triumph, overcoming barriers in her life that,
candidly, many in this Chamber have not had to overcome.
It is a story, like so many authentically and compelling American
stories, that starts with her family and, in particular, her parents,
not people of tremendous means or wealth. Her mother was a nurse, her
dad was a factory worker, and she, unfortunately, lost him at a very
young age. I think she was just 9 years old when her father died--a
very difficult circumstance for anyone to overcome, especially a young
girl.
When we look at her record as a student, it is also a great American
story of academic excellence, and I believe that is an understatement.
Her record as a student through high school and then going on to
Princeton and graduating with honors and going to Yale Law School and
serving on the Law Review and being such a leader and a student in both
college and law school--not only being a leader but also achieving
academic excellence--is a record we would hope every member of the U.S.
Supreme Court could bring to their nomination debate.
I was reflecting the last couple of days about my remarks tonight,
and I remembered that when our President, President Obama, was
campaigning, I had the chance to introduce him a number of times. One
of the times I introduced him, I was trying to convey the reality of
what he had overcome, and it is very difficult to put that in a few
words. But I said at the time, in one particular place in northeastern
Pennsylvania, that then-Senator Obama did not have a path cleared for
him, that he had to overcome barriers and obstacles in his life growing
up, as a public official, and all the way to the Presidency.
The same can be said of Judge Sotomayor. She had not, in her life--
and has not to this day--ever had a path cleared for her. She has had
to work and struggle and achieve to get where she is today, to the
point of being on the verge of being confirmed to serve on the Supreme
Court.
So I think it is very important to point out her life story, her
remarkable life story, her achievements, but also to speak, as we must,
and as we should, of her judicial expedience.
We hear all kinds of comparisons, when someone is nominated to the
Supreme Court, about how many years they have served as a judge, how
many years they have served as a lawyer or as an advocate or as a
public official--whatever their background is. But it just so happens
this particular nominee, Judge Sotomayor, has more judicial experience,
I am told, than anyone currently sitting on the U.S. Supreme Court--all
distinguished in their own way. But if you add up the years, I guess it
is 17--first on the district court, the trial court in New York, for
the Southern District of New York--nominated and confirmed by the
Senate--and the same when she was confirmed and served as a judge on
the U.S. Court of Appeals for the Second Circuit at the appellate
level. In both of those appointments, she gained enormous experience on
the very matters that will come before the U.S. Supreme Court.
First, she was on the district court where you have litigants coming
before
[[Page S8845]]
you, for example, in a trial or in a hearing--sometimes a criminal
matter that involves someone's liberty, involves law enforcement
issues, and all the complexities of our human condition in the context
of a criminal case. Also coming before that court are very complex
civil matters, and I know the record is replete with references to her
rulings in various cases involving civil, criminal, and other matters.
Then she went to the appeals court, working in a different court,
with a different set of issues and, candidly, a different procedure,
where someone is appealing to the Federal appeals court, in this case,
in the U.S. Court of Appeals for the Second Circuit--all the
complexities that involves, where you are not taking testimony as you
do in a trial, not making determinations of fact, you are deciding the
law, what the law should be, how to apply the law to the facts in the
record, which is already established.
Both are very different judicial responsibilities, but both are very
important to serve on the ultimate appellate court, the top court in
the land, that being the Supreme Court.
So she has had broad and unprecedented experience as a Federal judge
for 17 years. That is very important in this debate.
She also served as a prosecutor dealing with all of the complexities
and all of the difficulties that any prosecutor encounters, dealing
with victims and the impact of a crime on a victim and his or her
family, dealing with the impact of crime on a community and in a
jurisdiction, dealing with judges and witnesses and law enforcement
with whom often you work so closely--the prosecutor--to develop your
case, to marshal the evidence that a prosecutor has to put before a
judge and jury.
That experience is particularly relevant because a number of the
cases the Supreme Court will hear--and they do not hear every case;
they take a number of cases per year--some of those cases will involve
the rights of one party versus the other, will involve the rights of a
criminal defendant versus the State. There are very complex matters
that a Supreme Court Justice has to decide.
So whether you look at her experience as a prosecutor, as a Federal
district court judge, a trial judge, or her experience on the appellate
court--hearing appeals at the Federal level--all are very relevant to
and I think prepare her well for her service on the U.S. Supreme Court.
Two more sets of experiences--one as a lawyer. I think it helps when
you have been an advocate, a lawyer, to have that as part of your
experience serving on the Supreme Court, where you have had to take on
a battle for a client, to be their advocate, sometimes in very
complicated matters, sometimes matters that will affect their lives in
ways that will alter the course their life is taking when they have a
matter before a court.
Finally, her life experience. I would hope we nominate people to the
Supreme Court who have a broad life experience, who have not just been
in one area of a profession, but also have had challenges in their
lives they have had to overcome because the people who come before the
Supreme Court may be a little bit distant, but often arrive there after
months or years or longer of struggle.
I think Judge Sotomayor has a life story that indicates she not only
understands struggle and understands how difficult life can be, but
also has an appreciation for the complexities of life as well. She has
been described, as a judge and as a prosecutor, as both tough and
fair--tough and fair. That is a good description that you would want,
when you are evaluating the role and the record of a Supreme Court
Justice--someone who asks difficult questions and probing questions as
a member of the Court, but also someone who is fair, who does not seek
to gain an advantage over a lawyer in the course of an argument but is
both tough and fair.
I believe integrity is a central consideration that Senators should
weigh when we are deciding who serves on the Supreme Court after a
President nominates. We want someone with broad life experiences. We
want someone with experience in the law and often as a judge. But we
also want someone who has character.
I got a sense of that when I met with her. I also got a better sense
by reading the long list, which I will not read tonight, of all the
organizations that have endorsed her. They did not just endorse a set
of cases. They did not just endorse a resume. They endorse and give
their support to a human being, a person who has had tremendous
experience. And part of that, of course, is integrity.
I think we saw both her integrity and her temperament, which is
another very serious consideration. But we saw both of them tested in
the course of her hearings, where she was asked a lot of tough
questions by members of the Senate Judiciary Committee on both sides of
the aisle, Democratic Senators and Republican Senators--hour after hour
after hour, day after day, under very difficult circumstances, on live
television, with all of the pressure that every word, every response is
weighed and scrutinized and criticized often and examined. I think both
her integrity and her temperament were on display, and, in my
judgement, she passed both of those tests in considerations we have to
weigh, that she passed them so easily and so effectively.
I would make two more points. Inscribed over the building that houses
the courtroom where the U.S. Supreme Court meets--that historic room
where so many great cases have been decided--inscribed over the
building, above it, is the phrase we all know well: ``Equal Justice
Under Law.'' ``Equal Justice Under Law.'' That is what we expect
certainly of every judge, even lawyers, but especially someone who
becomes a U.S. Supreme Court Justice; that they would have that
philosophy in every case, but also the reality that precept entails,
that they would approach every case, every litigant, every party with
the same approach, dispensing equal justice under the law--not equal
justice under my law or equal justice under a philosophy of, in this
case, Judge Sotomayor as a Supreme Court Justice, not her definition of
what the law is, but what the law is, in fact, that she is required to
apply.
That equal justice under law is not just something inscribed above
that building. I believe, based upon her record, based upon her
experience, and based upon her character, she believes that and will be
governed by that as a member of the U.S. Supreme Court.
I conclude with this thought. When President Lincoln was speaking at
Gettysburg, PA--a place we all learned about as children and learned
about the Gettysburg Address and the meaning of it and the enduring
value of that speech--in one of the lines Lincoln used in that speech,
he was talking about the Nation being tested at a time of war, and,
unfortunately, at that time, a time of civil war, the worst of all
wars. He was posing the question about this Nation that had been
conceived not too long before he gave that speech. He said that one of
the questions he posed was whether a nation so conceived can ``long
endure,'' whether our Nation could long endure, that we were being
tested at a time of war.
I believe our Nation has been tested at other times as well, not only
in something as grave as a war, but we are tested in other ways as
well. We were tested in the Great Depression, whether we could endure
the misery and the difficulty, the joblessness of that, and all of the
problems the Depression brought to America. We have been tested in
other wars. We were tested in the battle for civil rights. We have been
tested as a nation very often--maybe not every day, maybe not every
week, but at some period of time in our lifetimes, we can see how our
Nation was tested. In some ways, we are tested when debates occur in
the Senate. We are tested in terms of appointments that a President
makes.
In this case, President Obama has nominated someone to the U.S.
Supreme Court who I believe will allow us to be able to say that as
long as we are nominating people with the experience, the character,
and the integrity of Judge Sonia Sotomayor, this Nation will long
endure. I have no doubt about that. I say that with as much confidence
as anyone could because her record demonstrates that. Her experience
demonstrates that if we have people such as Judge Sotomayor in the U.S.
Supreme Court, this Nation will not only long endure, it will indeed
thrive under that kind of judicial excellence and that kind of
experience she will bring to the bench. So I have
[[Page S8846]]
no hesitation at all in saying that I will vote for her confirmation to
be an Associate Justice of the Supreme Court. We can be proud of her
record and her experience but also her remarkable and authentically
American story.
Before I conclude my remarks, I ask unanimous consent to have printed
in the Record a letter of endorsement for Judge Sotomayor that the
Judiciary Committee received on July 15 from the National Hispanic
Christian Leadership Conference, serving approximately 16 million
Hispanic American born-again Christians and 25,434 member churches
across the country.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Jeff Sessions,
Committee on the Judiciary, U.S. Senate, Washington, DC.
Dear Chairman Leahy and Ranking Member Sessions:
America's largest Hispanic Christian Organization, The
National Hispanic Christian Leadership Conference (NHCLC),
serving approximately 16 million Hispanic American Born Again
Believers via 25,434 member churches, hereby endorses Judge
Sonia Sotomayor's nomination to the Supreme Court.
We commend President Obama's selection of Sotomayor as a
brilliant exercise in pragmatism and moderation. First, as
Hispanic Americans, we celebrate her nomination. Her journey
is our collective journey. Sotomayor stands as a model to all
our Hispanic young people throughout America that faith,
family and education can overcome the most difficult of
environments and economic circumstances.
More importantly, as Americans concerned with judicial
activism and defacto legislation from many sectors of our
judiciary, Sotomayor reflects, via her career on the bench,
the type of tempered restraint and moderation necessary for
appropriate application of the rule of law. Without a doubt,
Judge Sotomayor serves with a moderate voice without displays
of bias towards any party based on affiliation, background,
sex, color or religion. Judge Sotomayor's over 700 decisions
stand as testimony of a commitment and respect for the rule
of law, particularly the importance of stare decisis.
As an organization serving America's largest minority group
and the fastest growing religious demographic, we seek to
reconcile both the vertical and horizontal planes of the
Christian message. As we serve both matters of the soul and
community, religious liberties stand as an issue of utmost
concern for our constituents. Judge Sotomayor's rulings
affirm Constitutional safeguards for those liberties.
In conclusion, even moderate and conservative evangelicals
within our ranks find no reason to conclude that the
nomination and confirmation of Judge Sonia Sotomayor would
diminish the collective application of Constitutional rights
and freedoms to a religious community committed to Life,
Liberty and the Pursuit of Happiness. For that matter, we
encourage the support of this nominee from both sides of the
political aisle.
Jesse Miranda,
CEO, NHCLC, President of
Miranda Center for Hispanic Leadership.
Mr. CASEY. Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. FRANKEN. Mr. President, before I discuss the nomination of Judge
Sotomayor, I wish to take a moment to thank all of my colleagues here
in the Senate for their very warm welcome and hospitality. I joined
this body a little less than a month ago, but I have been humbled by
this institution, by the work that goes on here, and, most importantly,
by my colleagues. It is an honor to represent the people of Minnesota,
and it is a special privilege to do so here in the Senate.
One of my first responsibilities on joining the Senate was to
participate in the nomination hearings for Judge Sotomayor. I said at
the start of the hearings that I wanted to be a voice for the
overwhelming majority of Americans who aren't lawyers. The actions of
the Supreme Court directly affect the everyday lives of all Americans.
Whom we choose to place on the Supreme Court affects every one of us.
That is what I want to do this evening. I want to put the nomination of
Judge Sotomayor in context. I want to put it in the context of what the
Supreme Court has done these past 5 years and how that has affected the
lives of Minnesotans and of all Americans.
Our country is going through some tough times. We are experiencing
the highest unemployment in decades. Businesses are failing. Investors
are seeing their investments shrink, even disappear. Yet, despite all
of this, despite our faltering economy, in the past 5 years this
Supreme Court has restricted the rights of Americans as employees, as
small business owners, and as investors, and they have done this by
overturning longstanding precedents.
Let me put this in the context of Minnesota. Ten years ago, Minnesota
had an unemployment rate of 2.8 percent. Let me repeat that. Ten years
ago, Minnesota had an unemployment rate of 2.8 percent. Today, it is
8.4 percent. In certain counties, it hovers between 13 and 14 percent.
At the same time, Minnesota has an older workforce. The Twin Cities are
fourth in the Nation in the percentage of seniors working past the age
of 65. When businesses are making tough personnel decisions, you can
bet they are taking a good hard look at older workers who have higher
pension and health care costs.
But just last month, the Supreme Court eviscerated the one law
designed to prevent discrimination against older workers: the Age
Discrimination in Employment Act, or ADEA, as it is called. Because of
this case, the Gross case, it is not enough for a worker suing for age
discrimination to show he or she was fired improperly because of their
age. Under this new standard, an older worker must now show that age
was the single determinative reason for the firing. This is a
difficult, if not practically impossible, standard to meet. This also
breaks with the longstanding rule that the ADEA must be interpreted the
same as title VII of the Civil Rights Act which protects women and
minorities against discrimination in the workplace. Because of the
Gross case, Minnesota's older workers have fewer rights in the
workplace precisely when they need them the most.
This was the same Court that 2 years ago barred a title VII suit by
Lilly Ledbetter, a woman who was paid less than her male colleagues for
the same work for two decades. Minnesota women are paid 74 cents for
every dollar earned by men. Until Congress fixed this ruling last year
through the Lilly Ledbetter Fair Pay Act, this was yet another ruling
that limited Minnesotans' rights in the workplace.
This Supreme Court has put Minnesota's small business owners in a
similar position. Like entrepreneurs around the country, Minnesota
business owners are struggling. Business bankruptcies in our State
increased 40 percent between 2006 and 2008, and it will likely be worse
in 2009. If there were ever a time small business owners in Minnesota
needed a leg up, it is right now. But 2 years ago, this Supreme Court
overturned one of the strongest protections small business owners have
under the Sherman Act, our main antitrust law. For over 100 years, it
has been illegal for manufacturers to price-fix--to force retailers to
sell their goods at a certain price. Today, thanks to this Court's
ruling in the Leegin case, price fixing is now permitted. In fact, the
burden is now on consumers and small business owners to show, through a
complex economic analysis, that the price fixing hurts them.
This Court has been no kinder to investors. Like almost all American
investors, Minnesota investors are reeling from the trillions of
dollars in losses in the stock market. These losses were partly caused
by structural deficiencies in our finance system, but they were also
caused by speculation and by fraud, by people such as Bernie Madoff and
Tom Petters, a Minnesota financier who is in prison right now charged
with a $3.5 billion scheme that bilked stockholders in a number of
Minnesota companies. Yet, last year, the Supreme Court handed down a
decision that severely limited investors' ability to defend themselves
against securities fraud. In the Stoneridge case, the Supreme Court
said that an investor cannot sue an outside accountant or a lawyer who
worked with a company to fraudulently alter its financial records to
deliberately cook its books unless that third party somehow, for some
reason, publicly announced its involvement.
Together, the Age Discrimination in Employment Act, title VII of the
Civil Rights Act, the Sherman Act, and the Securities Exchange Act are
some of the strongest protections employees, small business owners, and
investors
[[Page S8847]]
have under American law. These laws help to level the playing field for
the less powerful in our society. Yet, in each of these cases, for each
of these laws, this Supreme Court has ignored longstanding precedent
and original congressional intent to limit the rights these laws afford
precisely when they are needed the most.
The Supreme Court's willingness to ignore longstanding precedent to
restrict individual rights is not limited to our economy. This same
Supreme Court recently overturned a 30-year rule that requires that a
woman's health be taken into account in any law regulating her right to
choose.
The Court is also poised to overturn critical protections to voters.
This Supreme Court has questioned the constitutionality of section 5 of
the Voting Rights Act, even though the 15th amendment expressly grants
Congress the power to regulate elections and even though Congress
recently voted to reauthorize those provisions for the fourth time by a
vote of 98 to 0. Talk about judicial activism. This is judicial
activism. This is the Supreme Court questioning the constitutionality
of a law passed by Congress under an explicit and exclusive grant of
power granted in the Constitution of the United States.
If she is confirmed, the first case Justice Sotomayor will hear will
reconsider the constitutionality of sections of McCain-Feingold that
the Supreme Court upheld just 6 years ago. The underlying principle in
question goes back over 100 years to the Tillman Act of 1907. For 100
years, Congress has said with increasing force that corporations should
not be spending money on Federal election campaigns. Yet this Court is
poised to contravene that 100-year-old rule and its own ruling on the
identical provision just 6 years ago. Again, I think this is judicial
activism. In fact, I think it is judicial activism in one direction:
away from longstanding protections for the individual and toward a more
friendly law for the powerful.
As I said last week, I firmly believe that in this context, with this
Supreme Court, a vote for Judge Sotomayor is a vote against judicial
activism. In a careful review of her opinions as an appellate judge,
the nonpartisan Congressional Research Service recently concluded that:
[p]erhaps the most consistent characteristic of Judge
Sotomayor's approach as an appellate judge has been an
adherence to the doctrine of stare decisis--
The upholding of past judicial precedents. Of the 230 majority
opinions Judge Sotomayor wrote as an appellate judge, the Supreme Court
has reversed only 3. That is 3 reversals out of 230 majority opinions.
But the best examples of Judge Sotomayor's inherent judicial
restraint are the two cases for which she has ironically received the
most criticism--the Ricci case and Maloney v. Cuomo, the Second
Circuit's most recent second amendment case. In both of these cases,
Judge Sotomayor simply followed the Supreme Court's own maxim that it
is the Court's--the Supreme Court's--prerogative alone to overrule one
of its precedents. When a three-judge panel in Ricci affirmed the
district court's decision, it was simply following existing title VII
law. When the three-judge panel in the Maloney case said that the
second amendment does not apply to the States, it was simply following
a 120-year-old Supreme Court precedent that said exactly that.
Moreover, a three-judge panel on the Seventh Circuit that included two
of the most prominent negligent conservative judges in the country,
Frank Easterbrook and Richard Posner, reached the same exact conclusion
unanimously.
Judge Sonia Sotomayor is a judge who follows and respects precedent.
She is a judge who does not make new law.
In fact, it seems that Judge Sotomayor's worst sin in this whole
process is her straightforward observation that our life experiences
shape who we are and what we do. This is not a new idea. Mr. President,
175 years ago, on the first page and at the most famous treatise in
American law, Oliver Wendell Holmes wrote:
The life of the law has not been logic; it has been
experience.
This isn't just an old idea either. Justices Alito, Scalia, and
Thomas each acknowledged in their own confirmation hearings that their
own life experiences--being born into an immigrant family, an exposure
to discrimination, a childhood in poverty--shaped their own approach to
judging.
But Judge Sotomayor went beyond Justices Alito, Scalia, and Thomas by
also recognizing that judges must be aware of these prejudices, and
they must not allow these prejudices to impact their approach to a
case.
Since this is a body that values its history, I thought it would be
appropriate to close by mentioning the last nominee to the Supreme
Court with a comparable amount of experience to Judge Sotomayor. That
person is Benjamin Cardozo.
Judge Cardozo was nominated to the Supreme Court in 1932, after
spending 18 years on his State's highest court. Like Judge Sotomayor,
Judge Cardozo was from New York. Like Judge Sotomayor, he had a tough
childhood, losing a parent when he was 9 years old. He had a tough
childhood like her. Like Judge Sotomayor, Cardozo was from an ethnic
minority--he was a Sephardic Jew, a descendent of Portuguese
immigrants. Like Judge Sotomayor, Cardozo was rightly proud of his
heritage. Like Judge Sotomayor, Cardozo was the most experienced
nominee to the Supreme Court in his generation.
Yet, unlike Judge Sotomayor, Judge Cardozo did not attract so much
controversy. In fact, he was unanimously confirmed to the Supreme Court
in a voice vote that lasted all of 10 seconds.
Judge Sotomayor is one of the leading jurists of our Nation. If
confirmed, she will be the only judge on the Supreme Court with trial
court experience. She would be one of the only ones with experience as
a prosecutor. As many have commented, she would be the appointee with
the most Federal court experience in a century.
We have, right now, a chance to make history. Thankfully, unlike a
lot of the important decisions we have to make that come before this
body, this is an easy one to make.
Judge Sotomayor will not only be the first Latina on the Supreme
Court; she will be the first person of Hispanic descent to reach the
pinnacle of any one of the three branches of the Federal Government.
She could not be more qualified for this position. Her appointment will
help protect the individual rights and liberties that are so necessary
for Minnesotans and for all Americans--and that this Supreme Court has
steadily, and substantially, eroded.
I am honored to cast my vote in favor of Judge Sonia Sotomayor, and I
hope my colleagues on both sides of the aisle will join me.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon is recognized.
Mr. WYDEN. Mr. President, while this is my first opportunity to vote
for a Supreme Court nominee named by a Democratic President, I don't
view the confirmation of judges through a partisan lens. Instead of
partisanship, I have developed several criteria for assessing Supreme
Court nominations. I believe these criteria are straightforward, and
they are easy to understand:
Does the nominee have extensive experience with the law and a
judicial temperament?
Has the nominee demonstrated sharp legal intelligence and sound
judgment?
Does the individual display a judicial philosophy that falls within
the mainstream of American legal thought?
Is he or she able and willing to separate their personal beliefs from
their constitutional obligations?
On each count, I rule in favor of Judge Sotomayor.
My colleagues and I have all been listening carefully to Judge
Sotomayor's testimony, and we have reviewed her record. In that record,
everything I have been able to ascertain indicates that Justice
Sotomayor will look a lot like Judge Sotomayor--an exemplary arbiter of
the law, firm but practical, tough but fair.
For these reasons, I will cast my vote to confirm her as the next
Associate Justice of the Supreme Court.
I speak from, perhaps, a unique position among Senators. I may be the
shortest serving Senator in the history on our Senate Judiciary
Committee. At the beginning of the 111th Congress, Senator Reid asked
me to serve on this extraordinarily important committee. Senator Reid
told me it would be a
[[Page S8848]]
temporary assignment, but I was still on the committee when Judge
Sotomayor was nominated to the Supreme Court. I very much enjoyed my
meeting with Judge Sotomayor, and I told her I wasn't sure how long I
would be serving on the committee. I said I felt a little bit like a
snowflake with the prospect of an Oregon rain coming in the afternoon.
In fact, the rain came just a few days before the Judiciary Committee
began the confirmation hearing for Judge Sotomayor. I did get a chance
to talk with her and discuss, at some length, her views with respect to
the key issues surrounding how a Senator evaluates a nominee to the
Supreme Court.
On the basis of that discussion and a review of her record, while I
wasn't able to cast a vote for her in committee, it is going to be,
later this week, an honor for me to vote for her on the Senate floor.
When I met with Judge Sotomayor, we discussed a number of important
issues--particularly matters relating to national security, the power
of the Commander in Chief, and we also spent some time on a matter that
I know the occupant of the chair is most interested in and that is end-
of-life health care. What struck me the most about Judge Sotomayor was
her openness, her intellectual curiosity, and her desire to make sure
she had all the facts, all the information, all the views and
background and the reading material that you have to have when you are
going to make a call not on the basis of your predisposition but on the
basis of the law and the law as it is applied to the facts.
In a number of areas we discussed with respect to end of life, Judge
Sotomayor acknowledged that these were issues she hadn't personally
considered. The occupant of the chair and I have talked at some length
about the politicized case of the late Terri Schiavo. I objected on the
floor of the Senate to the Senate considering that matter.
Of course, Judge Sotomayor could not go into how she would rule on
end-of-life cases. But we talked at some length about those issues, and
I am going to discuss them later in this statement tonight.
I wish to start my comments by saying I believe, with the young
people at home in Oregon, this nomination by President Obama is
regarded as an inspiration and a remarkable personal story. Oregonians
have told me they look at her journey as the realization of the
American dream. Oregonians have followed her testimony before the
Senate Judiciary Committee. They believe she is qualified for this job.
They are very excited about the fact that this nomination makes
history, and I commend the President for demonstrating with this
nomination how it is possible to increase the diversity, talent, and
experience on the Supreme Court with one very capable individual.
Chairman Leahy and others have done an excellent job of going through
the judge's impressive background. I do want to spend some time talking
about the issues that Judge Sotomayor and I discussed in my office most
extensively--Presidential power and end of life.
Serving on the Senate Select Committee on Intelligence, I have
followed the history with respect to a President's Commander in Chief
authority. Disagreements about this authority and how it is applied are
certainly nothing new. There have been vigorous debates about this
issue since our country was founded. But over the past several years,
there has been especially heated debate around these questions and, in
particular, the issue of whether, during times of war, the President
has the authority to ignore laws passed by the Congress. As a result,
there have been several occasions, over the past few years, where the
Supreme Court has had to rule on major national security issues and
address this question directly.
Our Court has frequently been sharply divided on this issue. At the
same time, it has consistently ruled that--in Justice Sandra Day
O'Connor's words--``a state of war is not a blank check for the
President.'' I believe this is a principle that has to be upheld.
When I raised these issues with Judge Sotomayor, I was impressed with
her thoughtfulness, her knowledge, and the experience she discussed
about dealing with these thorny issues. Her answers made me believe
that, as a Supreme Court Justice, she would apply the Constitution in a
way that struck a balance--a very careful balance--between protecting
our collective security and protecting our individual liberty.
We have always had, in the national security area, something of a
constitutional teeter-totter, where the Founding Fathers always sought
to try to ensure that there was an appropriate balance between
protecting our Nation and securing our individual liberties; and
maintaining that balance is what the Founding Fathers saw as paramount.
While Judge Sotomayor certainly gave no inkling to me in our
discussion about national security how she might rule in a particular
case, I felt very strongly that she would be able to define the reach
of the Commander in Chief's power so as to strike that appropriate
balance between collective security and individual liberty.
I must say, I don't want judges who will defer to any one President.
I want judges who are going to defer to the Constitution. I believe
Judge Sotomayor will do that in her service on the U.S. Supreme Court.
As I mentioned, I discussed with the judge the matter of end-of-life
health care. This is a very sensitive issue for millions of Americans.
What was striking about this in our discussions, when she and I met, is
she recognized it was a contentious area of the law--one that deals
with the rights of individuals and family members; and she certainly
indicated she was going to spend a lot of time trying to learn about
the history of cases in this area and the Court's judgments on end-of-
life care.
I have been very interested particularly in Justice Brandeis's
dissent in the Olmstead case. This was a 1928 case. The Supreme Court
later adopted Justice Brandeis's view in the Katz case which
essentially made it clear there is a right to be left alone, a right to
be respected in these very delicate questions.
What concerned me so much about the Terry Schiavo case--and again,
Judge Sotomayor gave no inkling about how she would rule on an end-of-
life case--I think she understood my concern, and would follow up on
it, that we cannot have elected officials, and particularly the Senate,
become something of a medical court of appeals where the Senate
essentially appoints itself the arbiter of these very difficult
tragedies.
Judge Sotomayor did not commit herself to any specific position on
end-of-life issues or any of the other issues. And, in fact, the judge
said that coming from New York where they have a very sophisticated set
of laws and legal protections to empower the individual to make their
own choices--not government--empower the individual to make these very
difficult questions, the judge said because New York had those statutes
empowering individuals that she would spend time looking at the laws
and the decisions of the Supreme Court in this area, reflecting, again,
her commitment to follow the facts, follow the law, and not bring any
predisposition of one sort or another to a very difficult and
contentious area of the law, one that is as sure as night follows the
day is going to be before the Supreme Court again--the matter of end-
of-life health care.
Let me also mention one of our colleagues talked about her respect
for precedent. I asked her about a woman's right to choose. She said
that is an area of the law that has been settled for decades.
On the second amendment, she indicated she would not try to eliminate
the right to own guns for hunting or for personal protection, again,
what amounts to a recognition of existing law.
On foreign law, she said she would not rely on international legal
decisions to interpret the Constitution.
This is a nominee who is going to be very sensitive to following
precedent, following the facts, and ensuring that those principles are
what guide her service on the U.S. Supreme Court.
Before I close, I wish to submit a letter the Senate Judiciary
Committee received in support of Judge Sotomayor from the Federal Bar
Association. They passed a resolution in support of the judge's
nomination. The Senate Judiciary Committee has also received statements
of support from the Hispanic National Bar Association, from the past
presidents of NHBA.
[[Page S8849]]
I ask unanimous consent to have printed in the Record the letter and
resolution and statement of support.
There being no objection, the material was ordered to be printed in
the Record, as follows:
June 1, 2009.
Re Nomination of Judge Sonia Sotomayor to the United States
Supreme Court.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate, Washington
DC.
Dear Chairman Leahy: On May 26, 2009, President Barack
Obama nominated Judge Sonia Sotomayor to fill the vacancy
left by Justice David H. Souter in the United States Supreme
Court.
The Hon. Raymond L. Acosta Puerto Rico Chapter of the
Federal Bar Association has issued the enclosed resolution
supporting Judge Sotomayors nomination and endorsing her as
qualified in every respect to fill this important position.
In sharing our background, please, note that the Federal
Bar Association is a professional organization for private
and government lawyers and judges that has been established
for over 80 years with a membership of about 16,000 federal
practitioners and over 900 members of the bench. The FBA is
dedicated to the advancement of the science of jurisprudence
and to promoting the welfare, interests, education and
professional development of all attorneys involved in federal
practice. The Hon, Raymond L. Acosta Puerto Rico Chapter is
one of the largest and most distinguished chapters of the
Federal Bar Association.
We greatly appreciate your consideration of our resolution,
and respectfully request that you include it in the
candidate's Senate Judiciary Committee evaluation file.
Respectfully,
Katherine Gonzalez-Valentiin,
President.
____
Resolution of the Board of Directors on President Barack Obama's
Nominee for the Current Judicial Vacancy in the United States Supreme
Court
Whereas on May 26, 2009, President Barack Obama nominated
Judge Sonia Sotomayor to fill the vacancy left by Justice
David H. Souter in the United States Supreme Court;
Whereas Judge Sotomayor has received widespread support,
and in view of this Chapter, is an exceptionally qualified
federal jurist with a stellar record of professional
achievement;
Whereas the Board of Directors of this Chapter is convinced
that the nominee will administer justice fairly and
impartially, and will faithfully and impartially discharge
and perform all the duties incumbent upon her under the
Constitution and laws of the United States; and further, will
support and defend the Constitution of the United States
against all enemies, foreign and domestic, and will bear true
allegiance to our Constitution and laws;
Whereas this Board of Directors is fully satisfied that
Judge Sotomayor possesses the necessary professional skills,
temperament, and other qualifications that are required to
perform this important judicial role with distinction;
Now, therefore, the Board of Directors of the Federal Bar
Association, Hon. Raymond L. Acosta Puerto Rico Chapter,
hereby unanimously resolves:
1. To express its unconditional satisfaction with the
qualifications of Judge Sonia Sotomayor to fill the vacancy
in the United States Supreme Court, and the Chapters
unconditional support of this important nomination;
2. To exhort the United States Senate and Its Committee on
the Judiciary to expeditiously consider and favorably act on
Judge Sonia Sotomayor's nomination, so that the United States
Supreme Court may have a full complement of Justices by the
time the Supreme Court reconvenes on October 5, 2009.
In San Juan, Puerto Rico, this 29th day of May, 2009.
Hispanic National Bar Association,
July 8, 2009.
HNBA Announces Endorsement of the Honorable Sonia Sotomayor
Washington, DC.--The Hispanic National Bar Association
(HNBA) announced today that it has formally endorsed The
Honorable Sonia M. Sotomayor to serve as Associate Justice of
the Supreme Court of the United States. The HNBA's Special
Committee on the U.S. Supreme Court has concluded its most
recent review of Judge Sotomayor's qualifications and overall
record, and found her to be `extraordinarily well-qualified'
to serve on the Nation's highest court. According to Ramona
E. Romero, HNBA National President, ``the HNBA unanimously
endorsed Judge Sotomayor after reviewing her judicial record,
professional competence, intellect, character, reputation for
integrity, temperament, commitment to equal justice and
record of service to the American public and the Hispanic
community.'' Carlos Ortiz, who co-chairs the HNBA's Supreme
Court Committee, added that ``based on our review, we are
certain that she is extraordinary well-equipped to serve on
our country's high court. We believe that she embodies all
the qualities required for service as a Justice, and are
confident that, when confirmed, she will render fair and
impartial justice for all Americans. We recommend her without
any reservation.''
This is the HNBA's fourth review of Judge Sotomayor's
record. The HNBA conducted due diligence before including
Judge Sotomayor on a short list of potential Hispanic
American nominees for the U.S. Supreme Court released in
2005. Her credentials were also reviewed by the HNBA prior to
her elevation to the Second Circuit in 1998, and when she was
nominated for the U.S. District Court. ``In each instance, we
have been impressed by her intellect, her commitment to the
rule of law and equal justice, her experience, and her
respect for all who interact with the legal system,'' said
Ms. Romero. Since the nomination of Judge Sotomayor to the
U.S. Supreme Court in late May, the HNBA has met with members
of the Senate Judiciary Committee and their staff to advocate
for a fair and expeditious confirmation hearing. The HNBA
looks forward to the opportunity to reiterate its strong
support for Judge Sotomayor during the confirmation process.
The HNBA Supreme Court Committee is co-chaired by Robert
Raben, founder and President of The Raben Group. Its members
are Michael A. Olivas, Houston, TX; HNBA Law Professor Sect
Chair Emeritus, 1987-2009; Gilbert F. Casellas, Round Rock,
TX; HNBA Past President, 1984-1985; Mark S. Gallegos, Miami,
FL; HNBA Past President, 1988-1989; Dolores S. Atencio,
Denver, CO; HNBA Past President, 1991-1992; Mary T.
Hernandez, San Jose, CA; HNBA Past President, 1994-1995;
Gregory A. Vega, San Diego, CA; HNBA Past President, 1997-
1998; Lillian R. Apodaca, Albuquerque, NM; HNBA Past
President, 1998-1999.
The Hispanic National Bar Association (HNBA) is an
incorporated, not-for-profit, national membership Association
that represents the interests of the more than 100,000
attorneys, judges, law professors, legal assistants, and law
students of Hispanic descent in the United States, its
territories and Puerto Rico. For more information about the
HNBA, please visit www.hnba.com.
____
HNBA Presidents' Statement
We the undersigned past presidents of the Hispanic National
Bar Association wholeheartedly support the nomination of
Judge Sonia Sotomayor to serve as an Associate Justice on the
United States Supreme Court. Judge Sotomayor has exceptional
academic and professional credentials. She is a summa cum
laude graduate of Princeton University and graduated from
Yale Law School, where she served as an editor of the Yale
Law Journal. Before her appointment to the federal bench,
Judge Sotomayor was a prosecutor for five years in the
Manhattan District Attorney's Office and then a commercial
litigator in a private law firm. Judge Sotomayor has been a
federal judge for 17 years, serving with distinction on both
the U.S. District Court for the Southern District of New York
and the Second Circuit Court of Appeals.
We have all long been troubled by the fact that no person
of Hispanic heritage has ever served on our nation's highest
court. During our terms as HNBA President, each and every one
of us engaged in bipartisan efforts to diversify the federal
bench and to build a pipeline of qualified Latino lawyers,
jurists and legal scholars who would be prepared to serve on
the U.S. Supreme Court with distinction. We have always been
convinced that greater diversity on the Supreme Court would
broaden and strengthen the perspective of its jurisprudence
and enhance the administration of justice for all Americans.
Words cannot adequately express the delight in our hearts
that our time has finally arrived. We urge the U.S. Senate to
confirm an exceptional jurist with extraordinary federal
judicial and legal experience, Judge Sonia Sotomayor.
Mario G. Obledo, John R. Castillo, Lorenzo Arredondo,
Gilbert F. Casellas, William Mendez, Jr., Mark S.
Gallegos, Robert J. Ruiz, Carlos G. Ortiz, Benjamin
Aranda III, Robert M. Maes, Mari Carmen Aponte, Robert
G. Mendez, Michael N. Martinez, Jimmy Gurule, Dolores
Atencio, Wilfredo Caraballo, Mary T. Hernandez, Hugo
Chaviano, Lillian G. Apodaca, Rafael A. Santiago, Duard
M. Bradshaw, Alan Varela, Jimmie V. Reyna, Jose Gaitan,
Gregory A. Vega, Alice Velazquez, Angel G. Gomez,
Carlos Singh, Nelson A. Castillo, Victor Marquez.
Mr. WYDEN. Mr. President, this organization, the Hispanic National
Bar Association is not for profit, a national membership association
that represents the interests of more than 100,000 attorneys, judges,
law professors, legal assistants, and law students of Hispanic descent
in United States, its territories, and Puerto Rico.
After a review of her qualifications and overall record, the Hispanic
National Bar Association's Special Committee on the U.S. Supreme Court
concluded that Judge Sotomayor is extraordinarily well qualified to
serve on the Nation's highest Court.
Let me close simply by saying that when we have to review a nominee
for this extraordinarily important position, one of the most important
measures for me is to know that the nominee's views are squarely in the
mainstream of American jurisprudence.
[[Page S8850]]
I came away believing that, but I hope that the Senate will not take
my word for it or any other colleague's word for it. I think we ought
to reflect on what the American Bar Association said. They gave her
their highest rating. Or listen to former FBI Director Louis Freeh who
called her an ``outstanding judge.'' Or read the dozens of endorsements
for her, including those from the American Hunters & Shooters
Association, the Chamber of Commerce, and the National Association of
Women Lawyers.
I started my statement tonight by laying out the criteria that I
believe ought to be used in evaluating a Supreme Court nominee. In
terms of those criteria, Judge Sotomayor is an individual who will
bring great credit to the Supreme Court. She will be a role model for
millions and millions of young people in our country. I hope our
colleagues will vote in a resounding fashion in favor of her nomination
to serve on the U.S. Supreme Court.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado.
Mr. BENNET. Mr. President, I, too, rise in strong support of the
President's historic nomination of Judge Sonia Sotomayor to be
Associate Justice of the U.S. Supreme Court.
The Senate has no more important responsibility than to advise and
consent on nominations to our Nation's highest Court. It will be an
honor, on behalf of the people of my State, to cast my vote to confirm
Sonia Sotomayor.
Judge Sotomayor is a distinguished lawyer with a lifetime of
experience in and out of the courtroom, as a litigator, a prosecutor, a
trial judge, and an appellate judge on one of the most prestigious
courts in the Nation.
At an early point in her career, she showed a dedication to public
service, serving 5 years as an assistant district attorney in New York
City. As a prosecutor, she focused on murder and robbery cases at a
time when violence was high in New York and law and order was
essential. And she has chosen in recent years to share her knowledge
and experience with young legal scholars as an adjunct professor at
local law schools.
Three Presidents from both parties have also agreed she merits a
prestigious lifetime judicial appointment. That is impressive
bipartisan support at our Nation's highest levels.
The question before the Senate is whether the nominee meets the high
standards we rightfully expect of our Supreme Court Justices. It is our
role to advise and consent on whether a President's nominee seeks to
apply the law and not to make or remake it. On both of these fronts,
Judge Sotomayor meets and far exceeds the mark. She is clearly a
judicial moderate and has demonstrated this through a Federal judicial
record longer than any nominee in the last 100 years.
As Federal district court judge in the Southern District of New York,
Judge Sotomayor presided over roughly 450 cases. As a member of the
Second Circuit Court of Appeals, Judge Sotomayor has participated in
over 3,000 panel decisions and authored over 400 published opinions.
Seldom does the Senate have a record as long as Judge Sotomayor's.
There is no mystery here about what kind of Justice she will be.
Since joining the second circuit, she has participated in 434
published panel decisions where the panel included at least one judge
appointed by a Republican President. In these cases, Judge Sotomayor
agreed with the result favored by the Republican appointee 95 percent
of the time. She has ruled for the government in 83 percent of
immigration cases, and 92 percent of criminal cases. She has hewed
closely to second circuit precedent. On employment cases, she has split
her decisions evenly. By all accounts, she is a mainstream moderate
nominee.
The American Bar Association unanimously found her well qualified.
She is someone with a long record of moderation and humility toward the
law. Her work is driven by a thorough application of the law to the
facts of each case. Our focus and the basis for support or opposition
should be on her qualifications and record. And on this point, she
clearly should be confirmed.
This week, we have a historic opportunity to add a mainstream,
moderate judge to our Nation's highest Court. President George H. W.
Bush saw this kind of potential in her when he nominated her to the
Federal district court, and she has fully realized his faith in her, so
much so that she stands on the brink of history after being nominated
by President Obama.
Judge Sotomayor has all the professional ingredients to make a great
Supreme Court Justice. It is on that basis she should be confirmed by
this body by an overwhelming vote.
But there is more to Judge Sotomayor than this impressive legal
career. Judge Sotomayor has also lived a truly American story. The
daughter of Puerto Rican parents, Judge Sotomayor lost her father at
the age of 9 and was raised in a housing project in the Bronx. Through
strong-willed parenting by her mother, she rose from difficult
circumstances to receive the very highest honor that Princeton awards
to an undergrad. She also went to Yale Law School where she had a much
more distinguished career than my own.
When she is confirmed as the first Hispanic and third woman ever to
be nominated to the Supreme Court, Judge Sotomayor will be an
inspirational example to all children all across the country, telling
us that regardless of where you come from, regardless of your economic
circumstances, nothing is beyond your reach in America.
Judge Sotomayor will be a role model for young Coloradans in all of
our schools, and with her on the high Court, I fully expect that
school-age girls, such as my three daughters, will have an important
role model of success to follow in their own lives.
These intangible factors make her nomination an important statement
for millions of young Americans setting out on their own paths.
I have the utmost faith in Sonia Sotomayor. The President made an
excellent nomination. Through sheer persistence, hard work,
intelligence, and integrity, she has become an inspiration to the
American people, and she is a compelling reminder that in this Nation,
everything is possible.
I am proud to commit my vote in favor of this nominee.
Mr. LEAHY. Mr. Presdient, many independent studies that have closely
examined Judge Sotomayor's record have concluded that hers is a record
of applying the law, not bias. For example, the American Bar
Association's Standing Committee on the Federal Judiciary unanimously
found Judge Sotomayor to be ``well qualified''--its highest rating--
after conducting a thorough evaluation that included an examination of
her integrity and freedom from bias. The Chair of the Standing
Committee testified, ``the committee unanimously found an absence of
any bias in the nominee's extensive work,'' and described Judge
Sotomayor's opinions as ``show[ing] an adherence to precedent and an
absence of attempts to set policy based on the judge's personal
views.''
Numerous other studies from groups such as the Congressional Research
Service, the New York City Bar Association, the Transactional Records
Access Clearinghouse, the National Association of Women Lawyers, and
the nonpartisan Brennan Center for Justice, have reached similar
conclusions. These studies were entered into the record during Judge
Sotomayor's confirmation hearings. Nothing in these studies or in her
17 year record on the bench raises a concern that Judge Sotomayor would
substitute feelings for the command of the law.
Judge Sotomayor's critics attack her by pretending that President
Obama does not respect the Constitution and the rule of law. They are
wrong. They attack him for using the word empathy to describe one of
the qualities he is looking for in a judicial nominee. He has never
said that empathy is intended to override the rule of law. It is,
nonetheless, ironic that the Senate Republican leader has criticized
Judge Sotomayor for not being more empathetic and ruling for Frank
Ricci, Ben Vargas, and the other plaintiffs despite the well-settled
law in the Second Circuit which she applied in that case.
They attack her by misconstruing what empathy means. Empathy is
understanding and awareness. That is what Justice Alito was testifying
about at his confirmation hearing. That is what Justice Thomas was
testifying about when he said that what he would bring to the Supreme
Court ``is
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an understanding and the ability to stand in the shoes of other people
across a broad spectrum of this country.'' Justice Alito and Justice
Thomas were not testifying that they would be biased. What the partisan
critics do not appreciate is that the opposite of empathy is
indifference and a lack of understanding. Empathy does not mean biased
or mean picking one side over another, it means understanding both
sides.
When she was designated by the President, Judge Sotomayor said: ``The
wealth of experiences, personal and professional, have helped me
appreciate the variety of perspectives that present themselves in every
case that I hear. It has helped me to understand, respect, and respond
to the concerns and arguments of all litigants who appear before me, as
well as to the views of my colleagues on the bench. I strive never to
forget the real-world consequences of my decisions on individuals,
businesses, and government.''
It took a Supreme Court that understood the real world to see that
the seeming fair-sounding doctrine of ``separate but equal'' was a
straightjacket of inequality. We do not need more conservative
activists second guessing Congress and who through judicial extremism
override congressional judgments intended to protect Americans' voting
rights, privacy rights and access to health care and education.
In her widely misconstrued speech at the University of California at
Berkeley, Judge Sotomayor said: ``[J]udges must transcend their
personal sympathies and prejudices and aspire to achieve a greater
degree of fairness and integrity based on the reason of law.'' That
parallels what Chief Justice Roberts said at his confirmation hearing
when he testified about ``the ideal in the American justice system''
and judges ``doing their best to interpret the law, to interpret the
Constitution, according to the rule of law'' and not substituting their
own personal agenda.
Those who spent days asking Judge Sotomayor to explain what she meant
in a partial quotation from that speech about the decisions reached by
a ``wise Latina woman with the richness of her experiences'' miss that
she begins that statement with the words, ``I would hope.'' They miss
that her statement is aspirational. She would ``hope'' that she and the
other Hispanic women judges would be ``wise'' in their decisionmaking
and that their experiences would help inform them and help provide that
wisdom. Judge Sotomayor's critics have ignored her modesty in not
claiming to be perfect, but rather in aspiring to the greatest wisdom
and fairness she can achieve.
These critics also miss that Judge Sotomayor was pointing out a path
to greater fairness and fidelity to law by acknowledging that despite
the aspiration she shares with other judges, there are imperfections of
human judging. By acknowledging rather than ignoring that while all
judges seek to set aside their personal views, they do not always
succeed, and we can be on guard against those views influencing
judicial outcomes.
Judge Sotomayor has described herself as ``an ordinary person who has
been blessed with extraordinary opportunities and experiences.'' In her
opening statement at her Supreme Court confirmation hearing she spoke
about witnessing the ``human consequences'' of judicial decisions. She
testified that her judicial decisions ``have not been made to serve the
interests of any one litigant, but always to serve the large interest
of impartial justice.''
We have a long and important tradition in the law of seeking justice
and fairness and equity. Judge Sotomayor spoke about the meaning of the
word ``justice'' a decade ago and said: ``Almost every person in our
society is moved by that one word. It is a word embodied with a spirit
that rings in the hearts of people. It is an elegant and beautiful word
that moves people to believe that the law is something special.''
In this country, the law is special, and it is special because of
what it protects and what it can do. In England there were separate law
courts and chancery courts. But, in the United States we have combined
these functions to be performed by all of our Federal judges.
We all talk about the importance of judges following the law. Yet we
should remember that the law that judges must follow includes the
reconstruction amendments and particularly the 14th amendment, which
transformed the rule of law and the role of judges and Congress in the
United States. In the aftermath of the bloody, tragic Civil War, the
14th amendment was passed to give the courts and the Congress a more
active role in defining and protecting civil rights. The complete
abolition of slavery was only a part of its grand purpose. It was
driven by a profound desire to arm the newly freed slaves--and all
Americans--with the rule of law--set forth in the grand phrasing of the
equal protection, due process, and privileges or immunities clauses--to
guarantee their equal rights against invidious governmental
discrimination.
The 14th amendment does not supplant but reinforces the historical
equitable powers of our courts to redress problems. It is not just the
statutes Congress writes, but also the precedent and interpretations of
the courts that make up the law. We have a strong common law tradition
in that regard. And we have a powerful equitable tradition that ensures
that fairness and justice are done.
We need judges who appreciate when and how to use their equitable
powers. Judges who follow the law are empowered to enjoin illegal
behavior, as the Supreme Court did in its historic series of orders
enjoining the States and others from segregating schools on the basis
of race. This does not mean that our courts have the power to remedy
every problem in America. They do not. In addition, they can abuse
their power, as I think the Supreme Court did when it intervened in the
Presidential election in 2000 and determined its outcome. But, we
should never forget that it is through its equitable powers that the
Supreme Court and most other courts in this country are able to do
justice and to ensure fairness and equity. In that regard, I believe
that the experience and wisdom Judge Sotomayor has gained from an
extraordinary life will benefit all Americans.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Begich). Without objection, it is so
ordered.
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