[Congressional Record (Bound Edition), Volume 155 (2009), Part 15]
[Senate]
[Pages 20748-20778]
[From the U.S. 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

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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 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

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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 
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

[[Page 20751]]

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 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

[[Page 20752]]

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 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

[[Page 20753]]

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 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

[[Page 20754]]

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 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--

[[Page 20755]]

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 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

[[Page 20756]]

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:

       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.

[[Page 20757]]


  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 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

[[Page 20758]]

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 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

[[Page 20759]]

     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.
       MindFreedom 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)).

[[Page 20760]]




         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.
  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.

[[Page 20761]]

  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, 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. Jeff 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 Associate 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

[[Page 20762]]

     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.
       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

[[Page 20763]]

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 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 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

[[Page 20764]]

     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 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

[[Page 20765]]

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 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,

[[Page 20766]]

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,'' 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.

[[Page 20767]]

  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 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

[[Page 20768]]

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 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

[[Page 20769]]

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. 
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

[[Page 20770]]

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.
  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

[[Page 20771]]

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 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

[[Page 20772]]

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 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.

[[Page 20773]]

  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 20774]]

 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.

[[Page 20775]]

  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 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.

[[Page 20776]]

  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.
  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,

[[Page 20777]]

           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.
  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

[[Page 20778]]

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 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.

                          ____________________