[Congressional Record (Bound Edition), Volume 155 (2009), Part 11]
[Senate]
[Pages 14296-14301]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. SESSIONS. Mr. President, I thank Senator McConnell for his 
leadership in so many ways but in particular the concern he has shown 
repeatedly on the U.S. judiciary. He is on the Judiciary Committee, and 
he takes these issues seriously. I think it is important that we all do 
so.
  I have to say I am disappointed that this morning we learned from 
media reports--I did--that the chairman of the Judiciary Committee, 
Senator Leahy, announced we would begin the hearings on July 13 on 
Judge Sotomayor. I believe that is too early. I don't believe it is 
necessary. It is far more important that we do this matter right than 
do it quick. When the announcement was made, President Obama said the 
time we should look to is October 1, when the new Supreme Court term 
starts. I think that always was an achievable goal, and it is something 
I said I believe we could achieve and still do it in the right way.
  The question is, Can we get all this done in this rush-rush fashion? 
It will be the shortest confirmation time of any recent nominee. It is 
a time well shorter than that of Justice Roberts--now Chief Justice--
and we had a need to move that a bit because he was confirmed, as it 
turned out, on September 29, a couple of days before the new term 
began. He was going to be Chief Justice. But the last nominee, whose 
record was much like this nominee, Justice Alito, was coming up in late 
December, and the Democratic leader then on the Judiciary Committee, 
Senator Leahy, asked that it be put off until after Christmas. The 
Republican chairman at that time, Senator Specter, despite President 
Bush's desire that it move forward, said: No, I think that is a 
reasonable request, and so we put it off. It was 90-some-odd days 
before that confirmation occurred. It was well over 70 days before the 
hearings began.
  Mr. President, first and foremost, we are committed to giving this 
nominee a fair, good, just hearing. But to do so requires that we have 
an opportunity to examine her record of probably more than 4,000 cases. 
In addition to that, she has given a lot of speeches and written law 
review articles, which need to be analyzed.
  Make no mistake about it, this is the only time, the only opportunity 
this Congress and the American people have to play a role in what will 
turn out to be a lifetime appointment, an appointment to a Federal 
bench of independence and unaccountability for the rest of their lives. 
I think it is important that we do this right.
  I thank Senator McConnell for his leadership in trying to insist that 
we do it right. I believe, from what I know today, the timeframe set 
forth is unrealistic. More than that, it is not necessary. Let's do 
this right, take our time, and do it in a way that I hope--as I have 
said repeatedly, this would be what people could say is the finest 
confirmation process we have ever had.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. McCONNELL. Mr. President, I thank my good friend from Alabama for 
his observation about this nomination. He and I have been involved in a 
number of these confirmation proceedings over the years. In every one 
of them, I think there is a sense of fairness that can be reached on a 
bipartisan basis so that the nominee is adequately and appropriately 
vetted. That is what the Senator from Alabama is looking for as we go 
forward on the Judiciary Committee.
  Frankly, I was surprised to learn that the majority decided 
unilaterally, basically, that the schedule would involve hearings 
beginning on that specific date, July 13, to which Senator Sessions 
referred.
  During the Senate's consideration of both the Roberts and Alito 
nominations, we heard a lot from our Democratic colleagues about how 
the Senate wasn't a rubberstamp and about how it was more important to 
do it right than to do it fast. If that was the standard, I suggest to 
our colleagues, just a few years ago, why wouldn't it be a good

[[Page 14297]]

standard today? If that was the standard when the Republicans were in 
the majority, why wouldn't it be a good standard when the Democrats are 
in the majority? We are talking about the same Supreme Court, the same 
lifetime appointment to which Senator Sessions referred.
  The chairman of the Judiciary Committee, today, said back then that 
``We need to consider this nomination as thoroughly and carefully as 
the American people deserve. It is going to take time.'' That was 
Senator Leahy then. He also said, ``It makes sense that we take time to 
do it right.'' I think the American people deserve nothing less. He 
also said that we want to do it right, we don't want to do it fast. 
Again, if that was the standard a few years ago when Republicans were 
in the majority, I don't know why it wouldn't be the standard today.
  I don't know what our friends in the majority are fearful of. This 
nominee certainly has already been confirmed by the Senate twice. She 
has an extensive record, and it takes a while to go through 3,600 
cases. In the case of the Chief Justice, there were only 327 cases. He 
had only been on the circuit court for a couple of years. She has been 
on one court or another for 17 years. It is a larger record. I am 
confident, and our ranking member, Senator Sessions, confirms that the 
staff is working rapidly to try to work their way through this lengthy 
number of cases. But a way to look at it is the committee had to review 
an average of six cases a day in order to be prepared for Judge 
Roberts' hearings--six cases a day. The committee will now have to 
review an average of 76 cases--76 cases--per day in order to be ready 
by the time the majority has proposed for the Sotomayor hearing.
  The Senate functions on comity and cooperation, and the majority 
leader and I are a big part of that every day, trying to respect each 
other's needs and trying to make the Senate function appropriately. 
Here the Democratic majority is proceeding, in my view, in a heavy-
handed fashion, completely unnecessary, and is basically being 
dismissive of the minority's legitimate concerns of a fair and thorough 
process. There is no point in this. It serves no purpose, other than to 
run the risk of destroying the kind of comity and cooperation that we 
expect of each other in the Senate, all of which was granted in the 
case of Chief Justice Roberts and Justice Alito.
  Let me be clear. Because of what our Democratic colleagues are doing 
and the way they are doing it, it will now be much more difficult to 
achieve the kind of comity and cooperation on this and other matters 
that we need and expect around here as we try to deal with the Nation's 
business.
  I hope they will reconsider their decision and work with us on a 
bipartisan basis to allow a thorough review of this lengthy record that 
the nominee possesses.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I wish to join the ranking member of the 
committee on which I sit, as well as the distinguished minority leader, 
in asking the question of why we have to set a date right now on the 
hearing for Judge Sotomayor. There is no reason for us to do that 
because there is no way to know at this point whether we will have our 
work done by that time.
  Historically--and it is for good reason--you want to have the review 
completed before you question the witness about the matters under 
review. That makes sense. So there is no reason to set that date today, 
and that is troublesome. We don't know if we will be ready by July 13, 
but there is a lot of history to suggest it is going to be very 
difficult to be ready by that time.
  The leader just pointed out the fact that if you compare the work 
required to consider the nomination of the now-Chief Justice John 
Roberts as opposed to this nominee, you have more than 10 times as many 
cases to look at with Judge Sotomayor as you had with Justice Roberts. 
That takes a lot of time. And even with 20-some staffers reading these 
4,000-plus decisions, it is not just a matter of reading the cases; it 
is a matter of then looking to see what the precedents cited were to 
determine whether you think the judge was right in the decision that 
was rendered, to look at the other references in the case to see how 
closely this followed existing law, and whether it appears the judge 
might be trying to make law as opposed to deciding law.
  That is important in this particular case because of the standard the 
President laid down for his nominees which strongly suggests something 
beyond deciding the law. In 5 percent of the cases, as he said, there 
is no precedent, there is no legal mechanism for deciding how the case 
should come out. You have to base it on other factors. Everybody is 
well aware of some of the factors this particular nominee has talked 
about and the President has talked about--the empathy, the background, 
the experience in other matters.
  The question is, in reading these opinions, do you find a trend of 
deciding cases on something other than the law, potentially the making 
of law in this particular case? And even if, as the leader said, you 
have to review 76 cases a day, that is only the decisions she has 
participated in or the opinions she has written or joined in.
  How about the other writings--her law review writings, her speeches 
she has given, the FBI report, the ABA report, which we do not have 
yet, the questionnaire which has not been completed; in other words, a 
variety of things that have been reviewed and read. And then you 
discuss the nomination with witnesses to say this matter has been 
raised, this matter has been raised, what do you think about that?
  She will have a variety of people who will be writing to the 
committee on her behalf. We will receive reams of letters and comments 
from people who think she is a good nominee, and we will receive a lot 
of comments, I suspect, from people who think she is not a good 
nominee. We need to go through all of that. When people write to us 
about these nominees, for or against, we don't ignore what they say; we 
take it to heart. That is part of our job. All of this takes a great 
deal of time and effort.
  Final point, Mr. President. We don't want to leave this to staff. We 
are going to read those opinions. I have instructed my staff on the 
opinions I want to read. I am used to reading court opinions, but not 
everybody has done that fairly recently in their career, and that takes 
a lot of time as well, considering all the other work we have to do.
  To do this right, to conduct the kind of fair and thorough hearing 
that Senator Sessions talked about, and to follow the kind of 
precedents and tradition that the minority leader talked about, I think 
it is important for us to do it right, to get it right, to take the 
time that requires. And if that means going beyond July 13, then do 
that.
  Senator Specter, when he was chairman of the committee, worked in a 
bipartisan way with Senator Leahy. Senator Leahy can certainly work in 
a bipartisan way with us to ensure there is an adequate amount of time.
  At the end of the day, what we want is a hearing that everyone can 
say was fair, was thorough, resulted in a good decision and, hopefully 
and presumably, will allow this nominee, if she is confirmed, to take 
her position prior to the beginning of the October term. Justice 
Roberts was confirmed, I believe, on the 29th of September, and that 
was 4 days ahead of the time, I think--or 2 days. The Court reconvenes 
on October 5. Therefore, I see no reason why, if we do this right, we 
cannot have the nominee--if this nominee is confirmed--confirmed by the 
time the October term begins.
  I say to my colleagues, let's do this right and not try to push 
things beyond the point that is appropriate under the circumstances.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank Senator Kyl for his leadership 
on this committee. He is one of the Senate's great lawyers. I 
appreciate his insights, as we all do.
  I note that I think this rush is ill advised. In truth, the White 
House was determined to get the nominee's questionnaire to the Senate 
in a hurry.

[[Page 14298]]

There were a number of cameras and crews and press releases that went 
out when boxes were delivered. In many ways, the questionnaire was 
incomplete, the result, I think, of that kind of rush. In others, the 
nominee failed to provide sufficient details that are required by the 
questionnaire.
  For example, the judge did not include a troubling recommendation to 
the Puerto Rican Legal Defense Fund to lobby against a New York State 
law that would reinstate the death penalty, and it had quite a bit of 
intemperate rhetoric in it. After that was noted, she admitted she had 
failed to include but got that document in. But I suggest perhaps if 
somebody had not been aware of that omission, maybe we would not have 
received that document at all. What else might she have failed to 
include that might be an important bit of information as our committee 
does its oversight work?
  In addition, the nominee was supposed to provide opinions and filings 
for cases going to verdict, judgment, or final decision. For three 
cases, she indicates that the District Attorney's Office is searching 
its records for information on this case, and she did not provide 
those.
  In 14 cases, she noted that she tried, the record is incomplete and 
not provided. So we don't have any documents related to these cases.
  As another example, the nominee is supposed to list speeches, 
remarks, and lectures she gave and, in the absence of having a prepared 
text, to provide outlines, notes, and then a summary of the subject 
matter.
  Several of the entries lacked any subject matter descriptions or are 
so vague as to be utterly uninformative, including these quotes I will 
note for the record, and we have had some problems with her speeches. A 
lot of speeches she has given she has no text for.
  I note this is on her questionnaire: ``I spoke on Second Circuit 
employee discrimination cases.'' She did not indicate what or give any 
summary of that.
  Another one: ``I spoke at a federal court externship class on `Access 
to Justice.''' It is not clear what that was in any way, and no summary 
and certainly no text.
  ``I participated in a panel entitled `Sexual Harassment: How to 
Practice Safe Employment.''' Similarly, no additional explanation.
  Next: ``I spoke on the United States judicial system.''
  Next: ``I spoke on the topic `Lawyering for Social Justice.' I 
discussed my life experiences and the role of minority bar 
organizations.''
  ``I participated in a symposium on post-conviction relief. I spoke on 
the execution of judgments of conviction.''
  ``I spoke on the implementation of the Hague Convention in the United 
States and abroad.''
  ``I participated in an ACS panel discussion on the sentencing 
guidelines.''
  ``I participated in a roundtable discussion and reception on `The Art 
of Judging' at this event.''
  It would be nice to know what she thought about the art of judging.
  ``I contributed to the panel, `The Future of Judicial Review: The 
View from the Bench' at the 2004 National Convention. The official 
theme was `Liberty and Equality in the 21st Century.'''
  Those are some of the things that I think are inadequate responses to 
the questionnaire's requirements. This questionnaire is one we have 
used for nominees of both parties for a number of years.
  The chairman justifies this rushed schedule because of the need, he 
says, to allow the nominee to respond to unfair criticisms of her 
record. But the chairman and all our Democratic colleagues know that 
the Republican Senators who will actually be voting on this nominee, I 
am confident and certain, have been nothing but extremely fair and 
courteous and respectful of the nominee. Even when she made mistakes, 
such as omitting several things from her questionnaire, we have not 
criticized her for that. So in return for this courtesy, I am 
disappointed that we are being rushed to complete this process in a 
time based on what I know now is not a wise approach. I don't think it 
is a good way to begin the proceedings.
  I look forward to working with my colleagues on this date. Perhaps we 
can do better as we move forward. It is an important process. It is the 
public's only opportunity to understand what this is about. I think we 
ought to do it right. As Senator Leahy has said, do not rush it.
  I yield the floor.
  Mr. REID. 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, let me say a few words regarding the 
excellent work of the Judiciary Committee, the work that has been done 
by Chairman Leahy. He has informed me that Senator Sessions has been 
most cooperative during the entire time Senator Sessions has had this 
new assignment.
  Senator McConnell asked me one day last week to delay a floor vote on 
Judge Sotomayor until after the August recess, and he sent me a letter, 
which I was happy to receive, making his case for this delay. I 
indicated to him this morning--he, Senator McConnell--that I had a 
telephone call scheduled with the chairman of the Judiciary Committee 
and the President to go over the content of Senator McConnell's well-
written letter.
  We had quite a long conversation with the President. Time? I don't 
know, 15 minutes, 10 minutes. But it was certainly enough to learn very 
quickly that the President was well versed on this nomination.
  After having spoken with the President and the chairman of the 
committee this morning, I had an obligation to convey to Senator 
McConnell my conclusion based on my conversation with the President.
  What I wish to do now, Mr. President, is read into the Record a 
letter I had delivered this morning to Leader McConnell:

       Dear Mitch:
       Thank you for your letter regarding the process for 
     considering the nomination of Judge Sotomayor to the United 
     States Supreme Court. I have taken your concerns into 
     consideration and have discussed the confirmation process 
     with the President and the Chairman of the Judiciary 
     Committee.
       Judge Sotomayor's judicial record is largely public and has 
     been undergoing extensive review by all interested parties at 
     least since the President announced her nomination on May 26. 
     In addition, she has returned her questionnaire, including 
     available records of her speeches and writings, in record 
     time. Her record for review is now essentially complete.
       In contrast, both Judge Roberts and Judge Alito had spent 
     significant time in the executive branch and much of their 
     record was not public or available for review following their 
     nominations. Numerous executive branch documents were not 
     included with their questionnaires, and much staff 
     preparation time was devoted to extensive negotiations over 
     document production with both nominations.
       In 2005, Senator Leahy agreed to a September 6 hearing date 
     for the Roberts nomination before Judge Roberts had submitted 
     his questionnaire, and before more than 75,000 pages of 
     documents, primarily from the Reagan Library and the National 
     Archives, came in throughout August and before the hearing 
     began in September. Indeed, on the eve of the planned start 
     of the hearing, on August 30, the Archives notified the 
     Judiciary Committee they had found a new set of documents 
     consisting of about 15,000 pages. These were delivered 
     September 2, further complicating the hearing preparations. 
     The hearings went ahead on September 12.
       Furthermore, Hurricane Katrina hit New Orleans and Chief 
     Justice Rehnquist passed away while Judge Roberts' nomination 
     to be an Associate Justice, leading to a week-long delay in 
     his hearing after he was then nominated to be the new Chief 
     Justice.
       Despite these obstacles, Judge Roberts was confirmed 72 
     days after President Bush named him as a nominee to the 
     Supreme Court. If Judge Sotomayor is confirmed before the 
     Senate recess in August, she will have been confirmed on a 
     virtually identical timetable. If, however, she is not 
     confirmed until the beginning of the Court's term in October, 
     consideration of her nomination will have lasted nearly twice 
     as long as that of Judge Roberts.
       Confirming Judge Sotomayor before the August recess would 
     give her time to prepare

[[Page 14299]]

     adequately for the Court's fall term, including the review of 
     hundreds of petitions for certiorari for the Court's first 
     conference and preparation for merits arguments. It would 
     also allow her time to move and hire law clerks. I do not 
     believe it is fair to delay Judge Sotomayor's confirmation if 
     it is not absolutely necessary.
       I appreciate that Senate Republicans are committed to a 
     fair and respectful confirmation process for Judge Sotomayor. 
     I believe it is important that Senators be permitted the 
     opportunity to thoroughly review Judge Sotomayor's record and 
     to fulfill our constitutional duty to provide advice and 
     consent. I believe our proposed schedule for hearings and a 
     floor vote on her confirmation will do so.

  I signed that letter Harry Reid.
  The hearing date is just 48 days after Judge Sotomayor was selected 
and is consistent with the 51-day average time between announcement of 
a Presidential selection and the start of their hearings. It has been 
that way for the past nine Court nominees who were confirmed.
  The proposed alternative, that the hearings be held after the August 
recess, or the first Tuesday after Labor Day, Tuesday, September 8, 
would subject Judge Sotomayor to the longest delay between selection 
and her confirmation hearing of any Supreme Court nominee in history, 
so far as we can tell. We stopped checking, frankly, when we got back 
to 1960. The GOP plan would delay her hearing until the 107th day after 
her selection. Robert Bork, the current record holder, waited 76 days. 
Thomas and Alito waited 64 and 67 days, respectively.
  We are doing our utmost to have this nominee have a fair hearing. We 
want to make sure the Republicans have all the time they need, but 
history doesn't lie, and history suggests we are being overly generous 
with this good woman. She will be a wonderful addition to the Court, 
and I would hope we can move forward and have this matter resolved 
quietly, respectfully, and fairly.
  Mr. LEAHY. Mr. President, if the Senator would yield. I might add to 
that. When I met with the distinguished Senator from Alabama last week, 
I had originally suggested it would be well within the appropriate 
timeframe of the other Justices--including Justice Roberts--that we 
have the hearing the week we came back from our week-long break of the 
Fourth of July. He had expressed--and I will let him speak for 
himself--some concern about that week after, and so I said: OK, we will 
put it a week later.
  He, obviously, wanted to speak with his leadership, and that is fine. 
I had originally intended to speak about it on Friday, but I understood 
that the Republican leader had sent a letter to the majority leader 
because the majority leader had told me about that, and we are all 
aware of the date. There was never a question about what date I 
intended to start. I had known that for some time. But this morning I 
told him by telephone I was going to do that date. I talked to the 
President, and I so advised Judge Sotomayor.
  The fact is, we are not doing something where we have problems with 
tens of thousands of pages just days before the hearing. We have all 
the material. I can't speak for other Senators, but we have a lot of 
work to do. We are paid well, and we have big staffs. I had hoped to 
take some vacation time during the Fourth of July week--I will not. I 
will spend that time preparing for it in my farmhouse in Vermont. I 
would suggest Senators may have to spend some time doing that. I know a 
lot of our staffs--both Republican and Democratic staffs--are going to 
have to plan to take time off. They are going to be working hard.
  We have a responsibility to the American people. Certainly, we have a 
responsibility to have a Justice have time enough to get a place to 
live down here, hire law clerks, and get going.
  Mr. REID. Will my friend yield for a moment?
  Mr. LEAHY. Sure.
  Mr. REID. It is also true, is it not, the announcement was made that 
during the 5 weeks we are in session during July we are going to be 
working Mondays through Fridays, and you have informed the members of 
the Judiciary Committee--Democrats and Republicans--that would be the 
case? That is why--it is my understanding from the distinguished 
chair--you had announced the hearing was going to start on a Monday?
  Mr. LEAHY. We are going to be in anyway. I would also note this gives 
us plenty of time.
  We get elected in November, most of us--the first week in November--
and when we are new Senators, we find it difficult to put everything 
together in 2 months, to go into the Senate in January. We should at 
least give the same courtesy to a Justice of the Supreme Court that we 
expect the American voters and taxpayers to give us.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I wish to confirm and agree with most of 
what the majority leader and our chairman have said. The bottom line 
is, this is a nomination that should be easy to study up on. The record 
is public. The record has been available from the day she was 
nominated. There are not thousands and thousands of pages given to us 
at the end of the days, as I know my colleague, the chairman, has said.
  I would like to make one other point. I know my colleague, our 
ranking minority member, Mr. Sessions, said Alito took some 90 days. 
That is true. But that included both the Thanksgiving and Christmas 
breaks. If you look at the actual working days, it was much shorter, as 
it has been for every other Justice. Let me repeat. If we were to do 
what the minority leader asks, and not vote on this nomination until 
well after the September break, it would be the longest nomination 
proceeding we have had for the most publicly available and most concise 
record.
  This is not somebody whom we have to dig and find out things about, 
because she has had 17 years--17 years--of Federal decisions at the 
district and at the court of appeals level, more than any other nominee 
to the Supreme Court in 100 years--in 70 years, excuse me. No, in 100 
years for Federal and in 70 years for Federal and State because Justice 
Cardozo had 29 years on the State bench. The record is ample and the 
record is public. Given the staff that I know the Judiciary minority 
has, as chairman of the Rules Committee, any lawyer worth their salt 
could more easily research the whole record in less than a month. So, 
actually, Chairman Leahy has been kind of generous by delaying a week 
or two beyond that month.
  Every day, as we speak now, there are, I daresay, tens of thousands 
of lawyers who have larger research dockets to do and are doing them in 
less time. So the bottom line is very simple. One can only come to the 
conclusion that the reason for delay is delay alone, not needing time 
to study a public, ample record. So I would urge my colleagues on the 
other side to reconsider.
  I have been told, at least on my subcommittee, that no one is going 
to participate in any meetings on anything. I don't know if that is 
true--I hope it isn't--that there is going to be an attempt to close 
down the Judiciary Committee on all the important issues we face.
  Mr. KERRY. Mr. President, will the Senator yield for a question?
  Mr. SCHUMER. I will yield to the Senator.
  Mr. KERRY. Mr. President, I ask my colleague, in terms of the public 
record, is it true not only that this is the longest period of time, 
but if we were to delay it until September, that would be the longest 
period of time for consideration of any Justice for the Supreme Court 
in history?
  Mr. SCHUMER. I believe my colleague from Massachusetts is correct.
  Mr. KERRY. Certainly much longer than Justice Alito, Justice Roberts 
or any of the others whom we considered very rapidly?
  Mr. SCHUMER. Clearly, longer than Roberts--much longer than Roberts--
and somewhat longer than Alito. But Alito had both the Thanksgiving and 
Christmas breaks that were counted in that time, and we all know people 
are busy celebrating the holidays.
  Mr. KERRY. I would also ask my colleague whether there is any 
rationale here whatsoever, that we have seen, for

[[Page 14300]]

why this Justice's entire record, which is public, and has been poured 
over already, requires having the longest period in history, in terms 
of Justices of the Supreme Court, particularly given the issues that 
are at stake and the convening of a new Court in October?
  Mr. SCHUMER. Well, I thank my colleague, and I think his points are 
well taken. As I mentioned before, the bottom line is, any lawyer worth 
his salt--and there are many very qualified lawyers in the minority on 
the Judiciary Committee--could research this record within a month, 
easily--easily. Right now, in the buildings here in Washington and in 
the buildings in New York and in the buildings in Birmingham, AL, are 
lawyers who have far more extensive research to do in less time and 
they do it well.
  Mrs. BOXER. Would my friend yield for a question?
  Mr. SCHUMER. I would be happy to yield.
  Mrs. BOXER. I know we have to vote, but I wish to speak for a minute. 
As a woman, and being from California, we have such excitement about 
this nomination. I know we all agree this is a historic first, this 
nomination, and I think, given that and the fact that the women of this 
country comprise a majority and there is only one woman on the Court--
and we certainly have never had a Latino on the bench--I am asking my 
friend, does he not believe this nominee should be accorded equal 
treatment--equal treatment as it relates to the others who have been 
nominated to the same post?
  That is all I am asking for. I am not on the committee, but I am 
supporting our Chairman Leahy and the rest of the committee--at least 
those who are moving toward this in a schedule similar to Justice 
Roberts. I would ask, once again: Shouldn't we, who are very excited 
about this nomination and want to see it move forward, expect to have 
Judge Sotomayor treated in an equal fashion?
  Mr. SCHUMER. I think my colleague from California makes an excellent 
point, and I would answer in the affirmative. We are not asking for 
more time. We are actually asking for less time, if you include 
vacation time.
  It is not a situation like with Justice Roberts and even Judge Alito, 
where there were weeks and weeks before we were able to get private 
records that were available. No one has requested--Judge Sotomayor has 
not worked with the executive, so you don't have all those issues that 
have to be discussed and negotiated about executive privilege. She has 
a 17-year career on the bench. She has 3,000 opinions. If that is not 
an adequate record?
  My office just in 2 days looked at every one, for instance, of the 
immigration asylum cases that were brought before her. There were 83--a 
pretty good sample, 83 percent. I don't recall the number, but there 
were a large number of cases, and 83 percent of the time we found she 
denied asylum to the immigrant applicant, which we concluded made it 
pretty clear that her fidelity to rule of law trumped her natural 
sympathy for the immigrant experience.
  We just did that in a day or two. I don't have the kind of staff that 
my good friend, the Senator from Alabama, has. He should have it. He is 
the ranking minority Member. So it is very easy, given the number of 
staff, given the public record, given that there is no litigation or 
discussion about executive privilege--as there was with both nominee 
Alito and nominee Roberts--that a month seems to me to be ample time. 
The chairman, in his wisdom, to which I will defer, gave more than a 
month to the day of the nomination.
  Mr. SESSIONS. Will the Senator yield for just one question?
  Mr. SCHUMER. I am happy to yield to my colleague.
  Mr. SESSIONS. I know the Senator from California raised the question 
of doing for this nominee as the others. If this goes forward as 
planned, it would be 48 days from nomination announcement to the first 
hearing. I wonder if the Senator from New York would acknowledge that 
for Justice Breyer it was 60 days; for John Roberts it was 55, the 
shortest; and Sam Alito was 70. This would be much shorter a period of 
time than the period we are being given for this nominee, who has 3,500 
cases.
  I would ask if the Senator remembers saying with regard to the Alito 
nomination, when our Democratic colleagues asked that it be held over 
past Christmas, and at their request it was done so, he said:

       It is more important to do it right than to do it quickly. 
     And now we have a bipartisan agreement to do that.

  So we just ask for a bipartisan agreement to do it right and not too 
fast. I don't know how we can work it out, but I think this is an 
arbitrary date, designed to move this process forward by a certain end 
game, faster than we need to. The vacancy, as the Senator knows, does 
not occur until October when Justice Souter steps down. So we do need 
to complete it by then. I have told the President I will work to make 
sure that occurs.
  Mr. SCHUMER. I thank my colleague.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mr. SCHUMER. If I might respond, with nominee Alito, now Justice 
Alito, there was a Christmas break. As I understand it, according to 
Chairman Leahy it was the majority, Republicans, who asked we go to 
that Christmas break, not the Democrats. In Justice Roberts' case, I 
believe Katrina intervened and everybody had to drop everything and 
work on the emergency of Katrina.
  If you look at days where the record is available, and it has been 
available right from the get-go here, and no vacation, no intervening 
long recesses and things like that, the minority here, any Senator 
here, will have had more time to scrutinize this record than we have 
had for most other Judges. Again, underscored by the fact that the 
record is public, is open and ample.
  No one has to go look for needles in a haystack to try to figure out 
the record of Judge Sotomayor. It is very extensive and ample. With 
Justice Roberts, we only had a few years where he was on the bench and 
all the rest of his record was in the executive and it took us weeks, I 
think--the chairman probably remembers this better than me--or months 
to get the record.
  With that, I yield the floor. I know we want to get on with the vote.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak for up to 
3 minutes before the vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Mr. President, I join in saying the chairman of the 
Senate Judiciary Committee, Senator Leahy, has come up with a 
reasonable timetable for considering this historic nomination. I 
believe his setting Monday, July 13, for the hearing is well within the 
ordinary bounds of time allotted for Supreme Court nominees. The 
important date is when paperwork is submitted. When it came to the 
submission of paperwork before the hearing actually took place, 
basically, when it came to Judge Sotomayor, she completed her paperwork 
setting forth her key information, background, on June 4. The July 13 
hearing will take place 39 days after that paperwork was submitted.
  In the case of Justice Alito--who incidentally had participated in 
4,000 cases, 1,000 more than Judge Sotomayor--in that case, in Justice 
Alito's case, the hearing took place 40 days after we received his 
work; for Chief Justice John Roberts, 43 days. This is entirely 
consistent.
  I might also add a point that was raised by Senator Udall of New 
Mexico. Judge Sotomayor is no stranger to this Chamber. She was 
nominated first for the district court bench by President George 
Herbert Walker Bush and then nominated for the district court by 
President Clinton. That is an indication that we have seen her work 
before. We are aware of her background.
  The last point I would make, consistent with the Senator from 
California, is that justice delayed could be justice denied. In this 
case, if we continue this hearing for a record-breaking period of 
time--which has been requested by the Republican side--it will mean we 
will have a vacancy on the Supreme Court when it begins its important 
work this fall.

[[Page 14301]]

  What Chairman Leahy has asked for is reasonable. It is consistent 
with the way Judges were treated under President Bush and at the time 
the Republicans had no objection or complaint about it. This is a 
reasonable timetable. I urge my colleagues to support Chairman Leahy.
  I yield the floor.

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