[Congressional Record (Bound Edition), Volume 155 (2009), Part 13]
[Senate]
[Pages 17507-17508]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    SOTOMAYOR CONFIRMATION HEARINGS

  Mr. McCONNELL. Mr. President, today the Senate Judiciary Committee 
will begin its hearings on the nomination of Judge Sonia Sotomayor to 
be an Associate Justice on the U.S. Supreme Court. The consideration of 
a Supreme Court nominee is always a historic event. Since our Nation's 
founding, only 110 people have served on the High Court, and 10 of 
those were nominated by George Washington. There are few duties more 
consequential for a Member of the U.S. Senate than to vote on a Supreme 
Court nominee.
  This particular nominee comes before the Judiciary Committee with a 
compelling life story. Like so many other Americans before her, Judge 
Sotomayor has overcome great adversity. In this, she has reaffirmed 
once again that ours is a nation in which one's willingness to work 
hard and apply one's talents are the principal requirements for 
success. And yet, as we begin these hearings, it is important to remind 
ourselves that our obligation as Senators under the Constitution's 
advice and consent clause requires us to do more than confirm someone 
to a lifetime position on our Nation's highest court based on their 
life story. Rather, it requires us to determine whether he or she will 
be able to fulfill the requirements of the oath taken by all Federal 
judges, that they will, ``administer justice without respect to 
persons, and do equal right to the poor and to the rich, and that 
[they] will faithfully and impartially discharge and perform all the 
duties incumbent upon [them] under the Constitution and laws of the 
United States.''
  The emphasis here is on the equal treatment of everyone, without 
respect to person, status, or belief, that everyone in America can 
expect that when they enter a courtroom, they will not be treated any 
differently than anyone else. That is what justice is, after all. And 
that is what Americans expect of our judicial system, equality under 
the law.
  Now, President Obama has made it abundantly clear, as a Senator, as a 
candidate for President, and now as President, that he has a somewhat 
different requirement for his appointees to the Federal bench. He has 
repeatedly emphasized that his ``criterion'' for a federal judge is 
their ability to ``empathize'' with certain groups. That is a great 
standard, if you are a member of one of those specific groups. It is 
not so great, though, if you are not. So it might be useful to consider 
some of the groups who have found themselves on the short end of the 
``empathy'' standard.
  First, there are those who rely on the first amendment's right to 
engage in political speech. Then there are those Americans who want to 
lawfully exercise their right to bear arms under the second amendment. 
Next, those who want protection under the fifth amendment's requirement 
that private property cannot be taken for a public purpose without just 
compensation, and that it should not be taken for another person's 
preferred private use at all. Also, there are those who want protection 
from unfair employment practices under the 14th amendment's guarantee 
of the equal protection of the law.
  I mention these specific groups because Judge Sotomayor has had to 
handle cases in each of these areas. And looking at her record, it 
appears the President has nominated just the kind of judge he said he 
would, someone who appears to have ``empathy'' for certain groups who 
appear before her, but not for others.
  As I discussed last week, Judge Sotomayor kicked out of court the 
claims of New Haven, CT, firefighters who had been denied promotions 
because some minority firefighters had not performed as well as a group 
of mostly White firefighters on a race-neutral exam. The Supreme Court 
reversed her decision in this matter, her third reversal just this 
term, with all nine justices finding that she misapplied the law. Her 
treatment of this case, the Ricci case, has been criticized across the 
political spectrum as ``perfunctory'' and ``peculiar,'' and it called 
into question whether her dismissive handling of the firefighters' 
important claims was unduly influenced by her past advocacy in the area 
of employment preferences and quotas.
  I also spoke last week about provocative comments Judge Sotomayor had 
made about campaign speech, including her claim that merely donating 
money to a candidate is akin to bribery. It is her prerogative to make 
such statements, as provocative as they may be. But it is not her 
prerogative as a judge to fail to follow clear Supreme Court precedent 
in favor of her political beliefs. Yet when she had the chance to vote 
on whether to correct a clear failure to follow Supreme Court precedent 
by her circuit in this very area of the law, she voted against doing 
so. Ultimately, the Supreme Court, in an opinion authored by Justice 
Breyer, corrected this error by her circuit on the grounds that it had 
failed to follow precedent.
  There are other areas of concern.
  Judge Sotomayor also brushed aside a person's claim that their 
private property had been taken in violation of the fifth amendment's 
``takings clause.'' As in the Ricci case, her panel kicked the 
plaintiffs' claims out of court in an unsigned, unpublished, summary 
order, giving them only a brief, one paragraph explanation as to why. 
Moreover, in the course of doing so, she dramatically expanded the 
Supreme Court's controversial 2005 decision in Kelo v. New London. In 
Kelo, the Supreme Court broadened the meaning of ``public purpose'' 
that allows the government to take someone's private property. Judge 
Sotomayor, in the case of Didden v. Village of Port Chester, broadened 
the government's power even further.
  Her panel's ruling in Didden now makes it easier for a person's 
private property to be taken for the purpose of conferring a private 
benefit on another private party. This result is at odds with both the 
plain language of the fifth amendment's takings clause, and with the 
Supreme Court's statements in Kelo. And, as in Ricci, she did it 
without providing a thorough analysis of the law. Her panel devoted 
just one paragraph to analyzing the plaintiffs' important Fifth 
Amendment claims. It is no wonder then that property law expert 
Professor Ilya Somin at George Mason University Law School called it 
``one of the worst property rights decisions in recent years.'' 
Professor Richard Epstein at the University of Chicago College of Law 
called it not only ``wrong'' and ``ill thought out,'' but ``about as 
naked an abuse of government power as could be imagined.''
  There is more. Judge Sotomayor has twice ruled that the second 
amendment is not a fundamental right and thus does not protect 
Americans from actions by states and localities that prevent them from 
lawfully exercising their ability to bear arms. As with the Ricci and 
Didden cases, Judge Sotomayor gave the losing party's claims in these 
cases short shrift and did not thoroughly explain her analysis. In one 
case, she disposed of the party's second amendment claim in a mere one-
sentence footnote. In the other case, which was argued after the 
Supreme Court's seminal second amendment decision in District of 
Columbia v. Heller, she gave this important precedent cursory 
treatment, devoting only one paragraph in an unsigned opinion to this 
important issue, which is unusual for a case of this significance.
  The losing parties in these cases might not have belonged to the 
groups that the President had in mind when he was articulating his 
``empathy'' standard. But they certainly underscore the hazards of such 
a standard. They had important constitutional claims, and they deserved 
to have their claims treated seriously and adjudicated fairly under the 
law, regardless of what Judge Sotomayor's personal and political 
agendas might be. Yet it strikes me that the losing parties in these 
cases did not in fact get the fair treatment they deserved.
  Indeed, taken together, these cases strongly suggest a pattern of 
unequal treatment in Judge Sotomayor's judicial record, particularly in 
high-profile cases. This pattern is particularly disturbing in light of 
Judge Sotomayor's numerous comments about her view of

[[Page 17508]]

the role of a judge, such as questioning a judge's ability to be 
impartial ``even in most cases,'' asserting that appellate courts ``are 
where policy is made,'' and concluding that her experiences and views 
affect the facts that she ``chooses to see'' in deciding cases.
  Republicans take very seriously our obligation to review anyone who 
is nominated to a lifetime position on our Nation's highest court. That 
is why Senators have taken time to review Judge Sotomayor's record to 
make sure she has the same basic qualities we look for in any Federal 
judge: superb legal ability, personal integrity, sound temperament, 
and, most importantly, a commitment to read the law evenhandedly. At 
the beginning of this process, I noted that some of Judge Sotomayor's 
past statements and decisions raised concerns. As we begin the 
confirmation hearings, those concerns have only multiplied.
  Boiled down, my concern is this: that Judge Sotomayor's record 
suggests a history of allowing her personal and political beliefs to 
seep into her judgments on the bench, which has repeatedly resulted in 
unequal treatment for those who stand before her.
  But that is what these hearings are all about: giving nominees an 
opportunity to address the concerns that Senators might have about a 
nominee's record. In this case, the list is long.
  So we welcome Judge Sotomayor as she comes before the Judiciary 
Committee today. And we look forward to a full and thorough hearing on 
her record and her views.
  I yield the floor.

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