[Congressional Record (Bound Edition), Volume 155 (2009), Part 14]
[Senate]
[Pages 19116-19117]
[From the U.S. Government Publishing Office, www.gpo.gov]




                          SOTOMAYOR NOMINATION

  Mr. CORNYN. Mr. President, I would like to address the nomination of 
Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme 
Court.
  The Constitution confers upon the Senate the power to provide advice 
and consent on judicial nominations as one of the most solemn 
responsibilities we have. Supreme Court Justices have always had 
tremendous power within our constitutional system of separated and 
enumerated powers. In recent decades, growing concern has arisen over 
judicial activism on the Court, which has the necessary consequence of 
taking power away from the elected representatives, and thus the people 
themselves, and conferring it to those with life tenure, unelected 
judges who have occasionally used this power conferred upon them in the 
Constitution to impose their own views and their own agenda on the 
American people and substituting that for the views of their elected 
representatives.
  We now see that five votes on the U.S. Supreme Court can invent new 
rights that are not found in the Constitution or narrow the scope of 
rights that generations of Americans have come to view as fundamental. 
Each Justice serves for life, so every time a nominee comes before us I 
think it is entirely appropriate, indeed required, that we exercise due 
care in exercising this power of advice and consent.
  Yes, Senators exercise the power, and also the responsibility we have 
under the Constitution with great care and I believe with great respect 
for every nominee. Sadly, over recent years we have seen judicial 
nominees treated with the opposite of respect and fairness. Some 
nominations have become quickly politicized, before the nominees have 
even had a chance to speak for themselves or to answer important 
questions or, perhaps, to put their record in context. We have seen 
outrageous accusations used to score political points and to damage a 
nominee in the court of public opinion before they have had an 
opportunity to even answer those concerns themselves.
  It is no secret that I remain deeply frustrated by the treatment of 
nominees such as Miguel Estrada, who was nominated by President George 
W. Bush to the District of Columbia Court of Appeals, sometimes 
acknowledged as the second highest court in the land. Mr. Estrada was 
filibustered seven times by the Democratic minority and refused an up-
or-down vote on the Senate floor--something that was literally unheard 
of in previous times. Many Senators share my view that had he been 
confirmed to the District of Columbia Court of Appeals, he could have 
been the first Hispanic nominated to the U.S. Supreme Court. Instead, 
that honor goes to the nominee we have before us, Judge Sonia 
Sotomayor.
  From the beginning I was determined to make sure Judge Sotomayor's 
nomination process and hearing would be different from that given to 
Miguel Estrada and others. When I first met with her in June, I pledged 
to her that I would do everything in my power to see that she was 
treated with fairness and respect. When individuals, and some 
organizations, said or did things that cheapened the process, I said 
so. When supporters and opponents of Judge Sotomayor made accusations 
of racism, I repudiated them because I believe all such accusations are 
incompatible with the respectful and dignified consideration of her 
nomination.
  In the end, I was pleased that Judge Sotomayor said she could not 
have received a more fair hearing and more fair treatment during the 
confirmation process.
  I believe a fair process and fair hearing means neither prejudging 
nor preconfirming a judicial nominee. Fair treatment means looking at 
the judge's record, including her public statements about the role of a 
judge in our separated powers of government. Fair treatment means 
giving the judge, the nominee, an opportunity to explain her record and 
her comments, and to put those in the appropriate context.
  Going into the hearings, I found much to admire about Judge 
Sotomayor's record. She is an experienced judge with an excellent 
academic background. She appears to be a tough judge--which may be to 
her credit--and demands a lot of the lawyers who appear in oral 
argument before her court.

[[Page 19117]]

For the most part, her decisions as a district court judge and as a 
member of the court of appeals were within the mainstream of American 
jurisprudence.
  Yet going into the hearings I also had some very serious questions 
that I thought it was appropriate to ask her and that she needed to 
answer. While, as I said, her judicial record is generally in the 
mainstream, several of her discussions demonstrated cause for concern 
about the kind of liberal judicial activism that has steered the courts 
in the wrong direction over the past few years, and many of her public 
statements reflected a surprisingly radical view of the law.
  Some have said we just have to ignore her public statements and 
speeches and just focus on her decisions as a lower court judge. I 
disagree with that position. Judges on the lower courts; that is, the 
district court and the court of appeals, have less room to maneuver 
than a Supreme Court Justice who is not subject to any kind of 
appellate review. Supreme Court Justices can thus more easily ignore 
precedents or reject them.
  This is why Judge Sotomayor's speeches and writings on judicial 
philosophy should matter, and they concern me a great deal. These 
speeches and writings contain very radical ideas on the role of a 
judge. In her speeches she said things such as there is no objectivity, 
no neutrality in the law, just a matter of perspective. She said courts 
do, in fact, make policy and seemed to say that was an appropriate role 
for the courts of appeals. She even suggested that ethnicity and gender 
can and should impact on a judge's decisionmaking process.
  For 13 years of my life I served as a State court judge, a trial 
judge, and a member of the Texas Supreme Court. I strongly disagree 
with the view of the law that says there is no impartiality, no 
objectivity, no law, with a capital ``L,'' that a judge can interpret. 
It is, to the contrary of Judge Sotomayor's statements, merely a matter 
of perspective. There is no impartial rule of law.
  I don't know how one can reconcile her statement that there is no 
objectivity, no neutrality in the law, with the motto inscribed above 
the U.S. Supreme Court building which says ``Equal Justice Under the 
Law.'' If there is no such thing as objectivity and neutrality, only a 
matter of perspective, how in the world can we ever hope to obtain that 
ideal of equal justice under the law? I just don't know how one can 
reconcile those.
  Despite my concerns about some of Judge Sotomayor's decisions, as 
well as some of her statements about judging, I went into the hearing 
with an open mind. I believed she deserved the opportunity to explain 
how she approached some of the most controversial cases on which she 
has ruled and to put her public statements in context. I hoped she 
would use the hearings to clear up the confusion many of us had, trying 
to reconcile the Judge Sotomayor who served for 17 years on the bench 
with the Judge Sotomayor who made some of these statements and 
speeches. The hearings were an opportunity for Judge Sotomayor to clear 
up these things and ultimately, in my view, resulted in a missed 
opportunity to do so.
  Regarding her public statements about judging, I was surprised to 
hear her say she meant exactly the opposite of what she said; that she 
had been misunderstood every single time and that she doesn't believe 
any of these radical statements after all and that her views are 
aligned with those of Chief Justice John Roberts.
  Regarding some of her most controversial decisions, she refused to 
explain them on the merits. She did not explain her legal reasoning or 
the constitutional arguments she found persuasive, instead choosing to 
explain those in terms of process and procedure whenever she could.
  She assured us her decisions would be guided by precedent, even when 
many of her colleagues, both on the court of appeals and the majority 
of the Supreme Court of the United States, disagreed. At the end of the 
hearing, I found myself still wondering who is the real Sonia Sotomayor 
and what kind of judge will she be when she is confirmed to the Supreme 
Court.
  Some have argued if I am uncertain, or if another Senator is 
uncertain about the answer to that question, that we should go ahead 
and vote to confirm Judge Sotomayor. I disagree with that. Voting to 
confirm a judge, this judge, or any judge, despite doubts, would 
certainly be a politically expedient thing to do, but I do not believe 
it would be the right thing to do, nor do I believe it would honor the 
duty we have under the Constitution, providing our advice and consent 
on a judicial nominee.
  We all know the future decisions of the Supreme Court of the United 
States will have a tremendous impact on all Americans. The Court, for 
example, could weaken the second amendment right of Americans to keep 
and bear arms, and Judge Sotomayor's decisions on that subject reflect, 
I believe, a restrictive view that is inconsistent with an individual 
right to keep and bear arms for all Americans.
  The Court could fail to protect the fifth amendment private property 
rights of our people from cities and States that want to condemn their 
private property for nonpublic uses. Judge Sotomayor has rendered 
decisions on the Second Circuit Court of Appeals that tend to support 
the views that she has an opinion of the rights of the government to 
take private property for private uses, not for public uses, and that 
concerns me a great deal.
  The Court could, in fact, invent new rights that appear nowhere in 
the Constitution, as they have done in the past, based on foreign law, 
a subject that Judge Sotomayor has spoken and written on, but she did 
not settle any concerns many of us had about what role that would play 
in her decisionmaking process when she is confirmed.
  I believe the stakes are simply too high for me to vote for a nominee 
who can address all of these issues from a liberal activist 
perspective. And so I say it is with regret and some sadness that I 
will vote against the confirmation of Judge Sonia Sotomayor. I will 
vote with a certain knowledge, however, that she will be confirmed 
despite my vote.
  I wish her well. I congratulate her on her historic achievement. I 
know she will be an inspiration to many young people within the 
Hispanic community and beyond. And I hope, I hope, she proves me wrong 
in my doubts.
  The Justice she is replacing, after all, has proved to have a far 
different impact than the President who nominated that judge believed 
that judge would have. So perhaps Judge Sonia Sotomayor will surprise 
all of us.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut is 
recognized.
  Mr. DODD. Mr. President, what is the business before the Senate?
  The ACTING PRESIDENT pro tempore. The Senate is in morning business.

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