[Congressional Record (Bound Edition), Volume 155 (2009), Part 14]
[Senate]
[Pages 19111-19112]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. KAUFMAN. Mr. President, I rise today in support of the nomination 
of Judge Sonia Sotomayor to be the Associate Justice of the U.S. 
Supreme Court.
  Last week, the Judiciary Committee held 4 days of hearings in Judge 
Sotomayor's nomination, including 2\1/2\ days of testimony from the 
judge herself.
  I came away from these hearings deeply impressed with her intellect, 
thoughtfulness, demeanor, and integrity. These characteristics, already 
plainly evident in her judicial record and lifetime of accomplishment, 
shone even more brightly in last week's hearing.
  Her respect for the law, for precedent, and for the prerogatives of 
the Congress will help ensure that the Supreme Court is a place where 
every party, whether powerful or powerless, can get a fair hearing.
  In short, the hearings confirmed that Judge Sotomayor has all the 
essential qualities that will enable her to serve all Americans well, 
and the rule of law, on our Nation's highest Court.
  Mr. President, my support for Judge Sotomayor is even stronger given 
our current economic circumstances. One might ask, what is the 
connection between our national economy and the Supreme Court 
nomination? The answer lies in the fact that today, while we have a 
real need for significant financial regulatory reform, we also face a 
Supreme Court too prone to disregard congressional policy choices.
  I raise the economic crisis, and the regulation that will be 
necessary to prevent the next crisis, because I am concerned that the 
current Supreme Court is overly protective of corporate interests at 
the expense of everyday Americans.
  As I watch this Court, I am reminded of the recent observation by 
legal commentator Jeffrey Toobin that the record of the current Chief 
Justice ``reflects a view that the court should almost always defer to 
the existing power relationships in society.''
  As Toobin reports, in every major case the Chief Justice sided with 
the corporate defendant over the individual plaintiff. In business 
cases before today's Supreme Court, I am worried that it is possible to 
predict the outcome simply by knowing the parties and the nature of the 
dispute. The facts and the law sometimes seem secondary. For example, 
in Leegin v. PSKS, the Court overturned 96 years of precedent and 
effectively legalized agreements between manufacturers and retailers to 
fix prices. In Exxon v. Baker, the Court sided with a company that 
recklessly destroyed the livelihoods of tens of thousands of Alaskans, 
dramatically reducing their punitive damages award that represented 
just a small percentage of the company's earnings. In Gross v. FBL 
Financial Services, the Court made it more difficult to prove age 
discrimination. And in Ledbetter v. Goodyear, the Court made it 
impossible for many plaintiffs to recover for unequal pay based on 
intentional sexual discrimination. So

[[Page 19112]]

egregious was the Ledbetter decision that the Congress made sure 
legislation overturning it was the first bill to reach President 
Obama's desk. And legislation is pending that would overturn Leegin as 
well. Congress shouldn't have to pass every bill twice.
  It is essential for our economic recovery that the Court respect the 
intent of Congress when it acts to regulate the markets. And make no 
mistake, we must reform our financial markets. The last 2 years have 
given us the final grade on an economic theory that is deeply 
suspicious of regulation and trusts the markets to police themselves. 
The grade was an F. America will no longer stand for a system that 
permits financial institutions to profit from risky bets and then beg 
the taxpayer for a bailout when those bets go bad. Three decades of 
deregulation has gone too far. The ability of the greedy and the 
powerful to enrich themselves at the expense of the taxpayer must be 
stopped.
  Congress can and will enact a dramatically improved regulatory 
system. The President can and will make sure the relevant enforcement 
agencies are populated with smart, motivated, and effective agents. My 
concern is that a Supreme Court resistant to Federal Government 
involvement in and regulation of markets could undermine those efforts. 
I am not suggesting that we face a return to the New Deal-era Court, a 
Court determined to strike down regulatory reform as beyond the 
authority of Congress, but a Court predisposed against government 
regulation might chip away at the edges of reform, materially reducing 
its effectiveness.
  That is why my questioning of Judge Sotomayor focused on her 
experience with business and business cases. She worked as a commercial 
litigator and business lawyer for 8 years. For the past 17 years, she 
has served on the most active Federal courts for business disputes--6 
years on the Southern District of New York and 11 on the Second Circuit 
Court of Appeals. Based on that extensive record, and her answers to 
questions last week, we now know not only that she possesses enormous 
expertise in business litigation but also that she calls these cases 
right down the middle, without any bias or agenda. For Judge Sotomayor, 
the facts and the law, not the identity of the parties, drive the 
result.
  When Justice Souter announced his retirement in May, I suggested that 
the Court would benefit from a much broader range of experience among 
its members. My concern at the time wasn't the relative lack of women 
or racial or ethnic minorities on the Court--though that deficit is 
glaring. I was pointing to the fact that most of the current Justices, 
whether they were Black or White, women or men, share roughly the same 
life experiences.
  Judge Sotomayor will bring a much needed breadth of experience to the 
Court. Unlike the other Justices, who lack extensive experience with 
private industry and any experience on the trial court, Judge Sotomayor 
understands the motivation and needs of the businesses that come before 
her. Judging from her ability to communicate her thoughts and ideas 
during the committee hearings last week, I am confident that other 
Justices, and by extension the entire Court, will benefit by the 
addition of Judge Sotomayor's voice to its deliberations in business 
cases.
  As we undertake financial regulatory reform and other fixes for our 
damaged economy, having judges who leave the lawmaking to lawmakers is 
absolutely essential. Judge Sotomayor told me she understands that 
``policymaking is up to the Congress'' and that ``judges can't 
substitute their own judgment'' for that of the Congress, regardless of 
their view of the wisdom of a policy or regulation.
  Throughout her career, she has taken each case that comes without 
predilection, giving full consideration to the arguments of both sides 
before reaching a decision. That is precisely the approach to judging 
we need on today's Supreme Court.
  Mr. President, Judge Sotomayor has a superior intellect, broad 
experience, superb judgment, and unquestioning integrity that would 
make her an outstanding nominee at any time. But given our current 
economic crisis and the likely role of the Court in reviewing 
legislative responses to that crisis, I submit she is the ideal nominee 
at this time. Her extensive experience as a commercial litigator, 
business lawyer and judge in business cases, and the passion for the 
law she has demonstrated throughout her career suggests she will be a 
leader on the Court at a time when such leadership is essential.
  I urge my colleagues to confirm Judge Sonia Sotomayor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.

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