Sonia Sotomayor

Speaker, Title, Party Statements
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. I will give everybody a chance to get in place here. What we are going to do, we are going to have opening statements from members--and, of course, this is, as we all know, the confirmation hearing on the nomination of Judge Sonia Sotomayor to be a Justice of the United States Supreme Court. Judge Sotomayor., welcome to the Senate Judiciary Committee. You have been before us twice before when President George H.W. Bush nominated you to be district judge and then, of course, when President Clinton nominated you as a court of appeals judge. Before we begin the opening statements of the Senators, I know you have family members here, and I do not know if your microphone is on or not, but would you please introduce the members of your family?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. If I introduced everybody that's family- like, we'd be here all morning, so I'm----
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Okay. I will tell you what. You know what I am going to do?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Because someday this will be in the archives, this transcript. Introduce whomever you like, and then we will hold the transcript open for you to add any other names you want. [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you, Mr. Chairman. I will limit myself to just my immediate family. Sitting behind me is my brother, Juan Sotomayor. Next to him is my mom, Celina Sotomayor. Next to her is my favorite husband of my mom, Omar Lopez. Next to him is my niece, Kylie Sotomayor. And next to her is her mom and my sister-in-law, Tracy Sotomayor. Then there is Corey, Connor--Corey and Connor Sotomayor. I shouldn't have said--I should have said their last name first together. And the remainder of that row is filled with godchildren and dear friends. But this is my immediate family.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Well, thank you very much. I remember reading about the marshals being surprised at your swearing-in as a district court judge because they had never seen such a large crowd of friends and supporters arrive. What we are going to do is each Senator will give a 10- minute opening statement. I would hope that all Senators would be able to be here today. If they are not, and if they want to give an opening statement, it will have to come out of their question time tomorrow. Senator Schumer will give a shorter opening statement than the others because he is going to reserve some of his time as a later introduction. I would note for the record we are considering the nomination of Judge Sonia Sotomayor to be a Justice of the United States Supreme Court. Our Constitution is interesting in this regard. We have over 300 million Americans, but only 101 people get a chance to say who is going to be on the Supreme Court: first and foremost, of course, the President--in this case President Obama--who made the nomination; and then 100 Senators have to stand in place of all almost 320 million Americans in considering the appointment. The President has done his part. He has made a historic nomination. Now the Senate has to do its part on behalf of the Senate people--on behalf of the American people. President Obama often quotes Dr. Martin Luther King, Jr.'s insight that ``the arc of the moral universe is long, but it bends toward justice.'' Each generation of Americans has sought that arc toward justice. We have improved upon the foundation of our Constitution through the Bill of Rights, the Civil War amendments, the 19th Amendment's expansion of the right to vote to women, the Civil Rights Act of 1964 and Voting Rights Act of 1965, and the 26th Amendment's extension of the right to vote to young people. These actions have marked progress toward our more perfect union, and I believe this nomination can be another step along that path. Judge Sotomayor.'s journey to this hearing room is a truly American story. She was raised by her mother, Celina, a nurse, in the South Bronx. Like her mother, Sonia Sotomayor worked hard. She graduated as the valedictorian of her class at Blessed Sacrament and at Cardinal Spellman High School in New York. She was a member of just the third class at Princeton University in which women were included. She continued to work hard, including reading classics that had been unavailable to her when she was younger and arranging tutoring to improve her writing. She graduated summa cum laude, Phi Beta Kappa; she was awarded the M. Taylor Senior Pyne Prize for scholastic excellence and service to the university. I would mention that is an honor that is given for outstanding merit. After excelling at Princeton, she entered Yale Law School, where she was an active member of the law school community. Upon graduation, she had many options, but she chose to serve her community in the New York District Attorney's Office. And I might say parenthetically, every one of us who has had the privilege to be a prosecutor knows what kind of a job that is and how hard it is. There she prosecuted murders, robberies, assaults, and child pornography. The first President Bush named her to the Federal bench in 1992, and she served as a trial judge for 6 years. President Clinton named her to the United States Court of Appeals for the Second Circuit where she has served for more than 10 years. She was confirmed each time by a bipartisan majority in the Senate. Judge Sotomayor's qualifications are outstanding. She has more Federal court judicial experience than any nominee to the United States Supreme Court in nearly 100 years. She is the first nominee in well over a century to be nominated to three different Federal judgeships by three different Presidents. She is the first nominee in 50 years to be nominated to the Supreme Court after serving as both a Federal trial judge and a Federal appellate judge. She will be the only current Supreme Court Justice to have served as a trial judge. She was a prosecutor and a lawyer in private practice. She brings a wealth and diversity of experience to the Court. I hope all Americans are encouraged by Judge Sotomayor's achievements and by her nomination to the Nation's highest court. Hers is a success story in which all--all--Americans can take pride. Those who break barriers often face the added burden of overcoming prejudice, and that has been true on the Supreme Court. Thurgood Marshall graduated first in his law school class. He was the lead counsel for the NAACP Legal Defense Fund. He sat on the United States Court of Appeals for the Second Circuit; he served as the Nation's top lawyer, the Solicitor General of the United States. He won a remarkable 29 out of 32 cases before the Supreme Court. But despite all of these qualifications and achievements, when he was before the Senate for his confirmation, he was asked questions designed to embarrass him, questions such as ``Are you prejudiced against the white people of the South? '' I hope that is a time of our past. The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high Court, was a struggle rife with anti-Semitism and charges that he was a ``radical.'' The commentary at the time included questions about ``the Jewish mind'' and how ``its operations are complicated by altruism.'' Likewise, the first Catholic nominee had to overcome the argument that ``as a Catholic he would be dominated by the pope.'' We are in a different era, and I would trust that all members of this Committee here today will reject the efforts of partisans and outside pressure groups that have sought to create a caricature of Judge Sotomayor while belittling her record, her achievements, and her intelligence. Let no one demean--let no one demand--this extraordinary woman, her success, or her understanding of the constitutional duties she has faithfully performed for the last 17 years. And I hope all Senators will join together as we did when we considered President Reagan's nomination of Sandra Day O'Connor as the first woman to serve on the Supreme Court. There every Democrat and every Republican voted to confirm her. This hearing is an opportunity for Americans to see and hear Judge Sotomayor for themselves and to consider her qualifications. It is the most transparent confirmation hearing ever held. Her decisions and confirmation materials have been posted online and made publicly available. The record is significantly more complete than that available when we considered President Bush's nominations of John Roberts and Samuel Alito just a few years ago. The judge's testimony will be carried live on several television stations and also live via webcast--something that I have set for the Judiciary Committee website. My review of her judicial record leads me to conclude that she is a careful and restrained judge with a deep respect for judicial precedent and for the powers of the other branches of the Government, including the law-making role of Congress. That conclusion is supported by a number of independent studies that have been made of her record and shines through in a comprehensive review of her tough and fair record in criminal cases. She has a deep understanding of the real lives--the real lives--of Americans and the duty of law enforcement to help keep Americans safe and the responsibilities of all of us to respect the freedoms that define America. Now, unfortunately, some have sought to twist her words and her record and to engage in partisan political attacks. Ideological pressure groups began attacking her even before the President made his selection. They then stepped up their attacks by threatening Republican Senators who do not oppose her. That is not the American way, and that should not be the Senate way. In truth, we do not have to speculate about what kind of a Justice she will be because we have seen what kind of a judge she has been. She is a judge in which all Americans can have confidence. She has been a judge for all Americans, and she will be a Justice for all Americans. Our ranking Republican Senator on this Committee reflected on the confirmation process recently, saying: ``What I found was that charges come flying in from right and left that are unsupported and false. It's very, very difficult for a nominee to push back. So I think we have a high responsibility to base any criticisms that we have on a fair and honest statement of the facts and that nominees should not be subjected to distortions of their record.'' I agree with Senator Sessions. As we proceed, let no one distort the judge's record. Let us be fair to her and to the American people by not misrepresenting her views. We are a country bound together by our magnificent Constitution. It guarantees the promise that our country will be a country based on the rule of law. In her service as a Federal judge, Sonia Sotomayor has kept faith with that promise. She understands that there is not one law for one race or another. There is not one law for one color or another. There is not one law for rich and a different one for poor. There is only one law. And, Judge, I remember so well when you sat in my office, and you said that ``ultimately and completely'' a judge has to follow the law, no matter what their upbringing has been. That is the kind of fair and impartial judging the American people expect. That is respect for the rule of law. And that is the kind of judge Judge Sotomayor has been. That is the kind of fair and impartial Justice she will be and that the American people deserve. Judge Sotomayor. has been nominated to replace Justice Souter, whose retirement last month has left the Court with only eight Justices. Justice Souter served the Nation with distinction for nearly two decades on the Supreme Court with a commitment to justice, an admiration for the law, and an understanding of the impact of the Court's decisions on the daily lives of ordinary Americans. I believe that Judge Sotomayor will be in this same mold and will serve as a Justice in the manner of Sandra Day O'Connor, committed to the law and not to ideology. In the weeks and months leading up to this hearing, I have heard the President and Senators from both sides of the aisle make reference to the engraving over the entrance of the Supreme Court. I look at that every time I go up there. It is carved in Vermont marble, and it says: ``Equal Justice Under Law.'' Judge Sotomayor's nomination keeps faith with those words.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you, Mr. Chairman. Thank you for your leadership, and I believe you have set up some rules for the conducting of this hearing that are consistent with past hearings and I believe allow us to do our work together. And I have enjoyed working with you on this process.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. I hope this will be viewed as the best hearing this Committee has ever had. Why not? We should seek that. So I join Chairman Leahy, Judge Sotomayor, in welcoming you here today. It marks an important milestone in your life. I know your family is proud, and rightly so. And it is a pleasure to have them with us today. I expect this hearing and resulting debate will be characterized by a respectful tone, a discussion of serious issues, a thoughtful dialogue, and maybe some disagreements. But we have worked hard to set that tone from the beginning. I have been an active litigator in Federal courts. I have tried cases as a Federal prosecutor and as Attorney General of Alabama. The Constitution and our great heritage of law I care deeply about. They are the foundation of our liberty and our prosperity, and this nomination hearing is critical for two important reasons. First, Justices on the Supreme Court have great responsibility, hold enormous power, and have a lifetime appointment. Just five members can declare the meaning of our Constitution, bending or changing its meaning from what the people intended. Second, this hearing is important because I believe our legal system is at a dangerous crossroads. Down one path is the traditional American system, so admired around the world, where judges impartially apply the law to the facts without regard to personal views. This is the compassionate system because it is the fair system. In the American legal system, courts do not make the law or set policy, because allowing unelected officials to make law would strike at the heart of our democracy. Here, judges take an oath to administer justice impartially. That oath reads: ``I . . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the rich and the poor, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States. So help me God.'' These principles give the traditional system its moral authority, which is why Americans respect and accept the rulings of courts--even when they disagree. Indeed, our legal system is based on a firm belief in an ordered universe and objective truth. The trial is the process by which the impartial and wise judge guides us to truth. Down the other path lies a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political or social agenda. I reject that view, and Americans reject that view. We have seen Federal judges force their own political and social agenda on the Nation, dictating that the words ``under God'' be removed from the Pledge of Allegiance and barring students from even private--even silent prayer in schools. Judges have dismissed the people's right to their property, saying the Government can take a person's home for the purpose of developing a private shopping center. Judges have--contrary to longstanding rules of war--created a right for terrorists, captured on a foreign battlefield, to sue the United States Government in our own country. Judges have cited foreign laws, world opinion, and a United Nations resolution to determine that a State death penalty law was unconstitutional. I am afraid our system will only be further corrupted, I have to say, as a result of President Obama's views that, in tough cases, the critical ingredient for a judge is the ``depth and breadth of one's empathy,'' as well as, his word, ``their broader vision of what America should be.'' Like the American people, I have watched this process for a number of years, and I fear that this ``empathy standard'' is another step down the road to a liberal activist, results- oriented, and relativistic world where laws lose their fixed meaning, unelected judges set policy, Americans are seen as members of separate groups rather than as simply Americans, and where the constitutional limits on Government power are ignored when politicians want to buy out private companies. So we have reached a fork in the road, I think, and there are stark differences. I want to be clear: I will not vote for--and no senator should vote for--an individual nominated by any President who is not fully committed to fairness and impartiality toward every person who appears before them. I will not vote for--and no Senator should vote for--an individual nominated by any President who believes it is acceptable for a judge to allow their personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court. In my view, such a philosophy is disqualifying. Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other. Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth, it is more akin to politics, and politics has no place in the courtroom. Some will respond, ``Judge Sotomayor would never say it's acceptable for a judge to display prejudice in a case.'' But I regret to say, Judge, that some of your statements that I will outline seem to say that clearly. Let's look at just a few examples. We have seen the video of the Duke University panel where Judge Sotomayor says ``It is [the] Court of Appeals where policy is made. And I know, and I know, that this is on tape, and I should never say that, and should not think that.'' And during a speech 15 years ago, Judge Sotomayor said, ``I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt . . . continuously to judge when those opinions, sympathies, and prejudices are appropriate.'' And in the same speech, she said, ``my experiences will affect the facts I choose to see. . .'' Having tried a lot of cases, that particular phrase bothers me. I expect every judge to see all the facts. So I think it is noteworthy that, when asked about Judge Sotomayor's now-famous statement that a ``wise Latina'' would come to a better conclusion than others, President Obama, White House Press Secretary Robert Gibbs, and Supreme Court Justice Ginsburg declined to defend the substance of those remarks. They each assumed that the nominee misspoke. But I do not think it--but the nominee did not misspeak. She is on record as making this statement at least five times over the course of a decade. I am providing a copy of the full text of those speeches for the record. [The speeches appear as a submission for the record.] Senator Sessions. Others will say that, despite these statements, we should look to the nominee's record, which they characterize as ``moderate.'' People said the same of Justice Ginsburg, who is now considered to be one of the most members of the Supreme Court in history. Some Senators ignored Justice Ginsburg's philosophy and focused on the nominee's judicial opinions. But that is not a good test because those cases were necessarily restrained by precedent and the threat of reversal from higher courts. On the Supreme Court, those checks on judicial power will be removed, and the judge's philosophy will be allowed to reach full bloom. But even as a lower court judge, our nominee has made some troubling rulings. I am concerned by Ricci, the New Haven Firefighters case--recently reversed by the Supreme Court-- where she agreed with the City of New Haven's decision to change the promotion rules in the middle of the game. Incredibly, her opinion consisted of just one substantive paragraph of analysis. Judge Sotomayor has said that she accepts that her opinions, sympathies, and prejudices will affect her rulings. Could it be that her time as a leader in the Puerto Rican Legal Defense and Education Fund, a fine organization, provides a clue to her decision against the firefighters? While the nominee was Chair of that fund's Litigation Committee, the organization aggressively pursued racial quotas in city hiring and, in numerous cases, fought to overturn the results of promotion exams. It seems to me that in Ricci, Judge Sotomayor's empathy for one group of firefighters turned out to be prejudice against another. That is, of course, the logical flaw in the ``empathy standard.'' Empathy for one party is always prejudice against another. Judge Sotomayor, we will inquire into how your philosophy, which allows subjectivity in the courtroom, affects your decisionmaking like, for example, in abortion, where an organization in which you were an active leader argued that the Constitution requires taxpayer money to fund abortions; and gun control, where you recently noted it is ``settled law'' that the Second Amendment does not prevent a city or State from barring gun ownership; private property, where you have ruled recently that the Government could take property from one pharmacy developer and give it to another; capital punishment, where you personally signed a statement opposing the reinstatement of the death penalty in New York because of the ``inhuman[e] psychological burden'' it places on the offender and the family. So I hope the American people will follow these hearings closely. They should learn about the issues and listen to both sides of the argument, and at the end of the hearing ask: ``If I must one day go to court, what kind of judge do I wish to hear my case? '' ``Do I want a judge that allows his or her social, political, or religious views to change the outcome? Or do I want a judge that impartially applies the law to the facts and fairly rules on the merits, without bias or prejudice? '' It is our job to determine on which side of that fundamental divide the nominee stands. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Another housekeeping thing. We are going to try to keep these opening statements to 10 minutes. I will recognize Senators on the Democratic side based on seniority. I have told Senator Sessions I will----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Likewise.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. That is what you want on your side. Then they will be recognized on your side by the same way. So the next Senator is Senator Kohl.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Thank you, Mr. Chairman. Judge Sotomayor, let me also extend my welcome to you and to your family. You are to be congratulated on your nomination. Your nomination is a reflection of who we are as a country, and it represents an American success story that we all can be proud of. Your academic and professional accomplishments--as prosecutor, private practitioner, trial judge and appellate judge--are exemplary. And as a judge, you have brought a richness of experience to the bench and to the judiciary which has been an inspiration for so many. Today, we begin a process through which the Senate engages in its constitutional role to ``advise and consent'' on your nomination. This week's hearing is the only opportunity we--and the American people--will have to learn about your judicial philosophy, your temperament, and your motivations before you put on the black robe and are heard from only in your opinions. The President has asked us to entrust you with an immense amount of power--power which, by design, is free from political constraints, unchecked by the people, and unaccountable to Congress, except in the most extreme circumstances. Our democracy, our rights, and everything we hold dear about America are built on the foundation of our Constitution. For more than 200 years, the Court has interpreted the meaning of the Constitution and, in so doing, guaranteed our most cherished rights: the right to equal education regardless of race; the right to an attorney and a fair trial for the accused; the right to personal privacy; the right to speak, vote, and worship without interference from the Government. Should you be confirmed, you and your colleagues will decide the future scope of our rights and the breadth of our freedoms. Your decisions will shape the fabric of American society for many years to come. And that is why it is so important that over the course of the next few days, we gain a good understanding of what is in your heart and in your mind. We don't have a right to know in advance how you will rule on cases which will come before you. But we need--and we deserve--to know what you think about fundamental issues such as civil rights, privacy, property rights, the separation of church and state, and civil liberties, just to name a few. Some believe that the confirmation process has become thoroughly scripted and that nominees are far too careful in cloaking their answers to important questions in generalities and with caveats about future cases. I recognize this concern, but I also hope that you recognize our need to have a frank discussion about these important issues. And these are not just concepts for law books. They are issues Americans care about. As crime plagues our communities, we navigate the balance between individual rights and the duty of law enforcement to protect and maintain order. As families struggle to make ends meet in these difficult times, we question the permissible role for Government in helping get the economy back on track. As we continue to strive for equal rights in our schools and workplaces, we debate the tensions between admissions policies and hiring practices that acknowledge diversity, and those that attempt to be colorblind. These issues invite all Americans to struggle with the dilemmas of democracy and the great questions of our Constitution. If we discuss them with candor, I believe we will have a conversation that the American people will profit from. When considering Supreme Court nominees over the years, I have judged each one with a test of judicial excellence. First, judicial excellence means the competence, character, and temperament that we expect of a Supreme Court Justice. He or she must have a keen understanding of the law and the ability to explain it in ways that both the litigants and the American people will understand and respect, even if they disagree with the outcome. Second, I look for a nominee to have the sense of values which form the core of our political and economic system. No one, including the President, has the right to require ideological purity from a member of the Supreme Court. But we do have a right to require that the nominee accept both the basic principles of the Constitution and its core values implanted in society. Third, we want a nominee with a sense of compassion. This is a quality that I have considered with the last six Supreme Court Justices. Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than an intellectual game and more than a mental exercise. As Justice Black said, ``The courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered or because they are non-conforming victims of prejudice and public excitement.'' A Supreme Court Justice must also be able to recognize that real people with real problems are affected by the decisions rendered by the Court. He or she must have a connection with and an understanding of the problems that people struggle with on a daily basis. For justice, after all, may be blind, but it should not be deaf. As Justice Thomas told us at his confirmation hearing, it is important that a Justice ``can walk in the shoes of the people who are affected by what the Court does.'' I believe this comment embodies what President Obama intended when he said he wanted a nominee with ``an understanding of how the world works and how ordinary people live.'' Some critics are concerned that your background will inappropriately impact your decision making. But it is impossible for any of us to remove ourselves from our life story with all the twists and turns that make us who we are. As you have acknowledged, ``My experiences in life unquestionably shape my attitudes.'' And I hope that we on this Committee can appreciate and relate to ourselves what you said next: ``. . . but I am cognizant enough that mine is not the only experience.'' You will have an opportunity before this Committee to assure us that your life experiences will impact but not overwhelm your duty to follow the law and Constitution. After your confirmation to the Court of Appeals in 1998, you said about the discussions at your confirmation hearing, ``So long as people of good will are participating in the process and attempting to be balanced in their approach, then the system will remain healthy.'' I hope our process will include a healthy level of balanced and respectful debate, and I look forward to the opportunity to learn more about you and what sort of Justice you aspire to be. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Also a former Chairman of this Committee.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, thank you, Mr. Chairman. Judge, welcome to you and your good family. We are grateful to have all of you here. Now, this is the 12th hearing for a Supreme Court nomination in which I have participated, and I am as struck today as I was the first time by the seriousness of our responsibility and its impact on America. I am confident that under this Committee's leadership, from both you, Mr. Chairman, and the distinguished Ranking Member, this hearing will be both respectful and substantive. Judge Sotomayor comes to this Committee for the third time, having served in the first two levels of the Federal judiciary and now being nominated to the third. She has a compelling life story and a strong record of educational and professional achievement. Her nomination speaks to the opportunities that America today provides for men and women of different backgrounds and heritage. The liberty we enjoy here in America makes these opportunities possible and requires our best efforts to protect that liberty. Our liberty rests on the foundation of a written Constitution that limits and separates government power, self- government by the people, and the rule of law. Those principles define the kind of judge our liberty requires. They define the role judges may play in our system of government. I have described my basic approach to the judicial confirmation process in more detail elsewhere, so I ask unanimous consent that my article published this year in the Harvard Journal of Law and Public Policy, entitled ``The Constitution Is the Playbook for Judicial Selection,'' be placed in the record, Mr. Chairman, if I can.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Without objection. [The article appears as a submission for the record.]
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. My approach includes three elements: First, the Senate owes some deference to the President's qualified nominees; Second, a judicial nominee's qualifications include not only legal experience but, more importantly, judicial philosophy. By that I mean a nominee's understanding of the power and proper role of judges in our system of government; Third, this standard must be applied to the nominee's entire record. I have also found guidance from what may seem to be as an unusual source. On June 8, 2005, then-Senator Barack Obama explained his opposition to the appeals court nomination of Janice Rogers Brown, an African American woman with a truly compelling life story, who then served as a justice on the California Supreme Court. Senator Obama made three arguments that I find relevant today. First, he argued that the test of a qualified judicial nominee is whether she can set aside her personal views and, as he put it, ``decide each case on the facts and the merits alone. That is what our Founders intended. Judicial decisions ultimately have to be based on evidence and on facts. They have to be based on precedent and on law.'' Second, Senator Obama extensively reviewed Justice Brown's speeches off the court for clues about what he called her ``overreaching judicial philosophy.'' There is even more reason to do so today. This is, after all, a nomination to the Supreme Court of the United States of America. Judge Sotomayor, if confirmed, will help change the very precedents that today bind her as a circuit court of appeals judge. In other words, the judicial position to which she has been nominated is quite different than the judicial position she now occupies. This makes evidence outside of her appeals court decisions regarding her approach to judging more, not less, important. Judge Sotomayor has obviously thought, spoken, and written much on these issues, and I think we show respect to her by taking her entire record seriously. Third, Senator Obama said that while a nominee's race, gender, and life story are important, they cannot distract from the fundamental focus on the kind of judge she will be. He said then, as I have said today, that we should all be grateful for the opportunity that our liberty affords for Americans of different backgrounds. We should applaud Judge Sotomayor's achievements and service to her community, her profession, and her country. Yet Senator Obama called it ``offensive and cynical'' to suggest that a nominee's race or gender can give her a pass for her substantive views. He proved it by voting twice to filibuster Janice Rogers Brown's nomination and then by voting against her confirmation. I share his hope that we have arrived at a point in our country's history where individuals can be examined and even criticized for their views, no matter what their race or gender. If those standards were appropriate when Senator Obama opposed Republican nominees, they should be appropriate now that President Obama is choosing his own nominees. But today President Obama says that personal empathy is an essential ingredient in judicial decisions. Today we are urged to ignore Judge Sotomayor's speeches altogether and focus only on her judicial decisions, which are extensive. I do not believe that we should do just that. I wish that other current standards had been applied to past nominees. Democratic Senators, for example, offer as proof of Judge Sotomayor's moderation that she has agreed with her Republican-appointed Second Circuit colleagues 95 percent of the time. Joined by then--for which I congratulate her. Joined by then-Senator Obama, however, many of those same Democratic Senators voted against Justice Samuel Alito's confirmation, even though he had voted with his Democrat-appointed Third Circuit colleagues 99 percent of the time during a more longer appeals court career. And although Justice Alito also received the ABA's highest rating, Senator Obama joined 24 other Democrats on even voting to filibuster his nomination. And then he joined a total of 42 Democrats in voting against the confirmation of now-Justice Alito. In fact, Senator Obama never voted to confirm a Supreme Court Justice. He even voted against the man who administered the oath of Presidential office, Chief Justice John Roberts, another distinguished and well-qualified nominee. Now, if a compelling life story, academic and professional excellence, and a top ABA rating make a convincing confirmation case, Miguel Estrada would be a U.S. circuit judge today. He is a brilliant, universally respected lawyer, one of the top Supreme Court practitioners in America. But he was fiercely opposed by groups and repeatedly filibustered by Democrat Senators, and ones who today say these same factors should count in Judge Sotomayor's favor. Now, whether I vote for or against Judge Sotomayor, it will be by applying the principles that I have laid out, not by using such tactics and standards used against these nominees in the past. Judicial appointments have become increasingly contentious. Some of the things that have been said about Judge Sotomayor have been intemperate and unfair. There are now newspaper reports that left-wing groups supporting Judge Sotomayor--specifically, the extreme-left People for the American Way--are engaged in a smear campaign against the plaintiff in one of her more controversial cases, a man who will be testifying here later in the week. If that is true--and I hope it is not--it is beneath both contempt and the dignity that this process demands. But there must be a vigorous debate about the kind of judge America needs because nothing less than our liberty is at stake. Must judges set aside or may judges consider their personal feelings in deciding cases? Is judicial impartiality a duty or an option? Does the fact that judicial decisions affect so many people's lives require judges to be objective and impartial? Or does it allow them to be subjective and sympathetic? Judge Sotomayor's nomination raises these and other important issues, and I look forward to a respectful and energetic debate. The confirmation process in general, and this hearing in particular, must be both dignified and thorough. There are very different and strongly held views about the issues we will explore, in particular the role that judges should play in our system of government. The task before us is to determine whether Judge Sonia Sotomayor is qualified by legal experience, and especially by judicial philosophy, to sit on the Supreme Court of the United States of America. Doing so requires examining her entire record, her speeches and articles, as well as her judicial decisions. We must at the same time be thankful for the opportunity represented by Judge Sotomayor's nomination and focus squarely on whether she will be the kind of judge required by the very liberty that makes that opportunity possible. Judge, I am proud of you and I wish you well. This will be an interesting experience, and I expect you to be treated with dignity and respect throughout. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. I yield to the Chair of the Senate Intelligence Committee, Senator Feinstein.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much, Mr. Chairman. Good morning, Judge Sotomayor. I want to congratulate you on your nomination, and I also want to start out with a couple of personal words. Your nomination I view with a great sense of personal pride. You are indeed a very special woman. You have overcome adversity and disadvantage. You have grown in strength and determination, and you have achieved respect and admiration for what has been a brilliant legal and judicial career. If confirmed, you will join the Supreme Court with more Federal judicial experience than any Justice in the past 100 years. And you bring with you 29\1/2\ years of varied legal experience to the Court. By this standard you are well qualified. In your 11 years as a Federal appellate court judge, you have participated in 3,000 appeals and authored roughly 400 published opinions. In your 6 years on the Federal court, you were the trial judge in approximately 450 cases. For 4\1/2\ years, you prosecuted crimes as an assistant DA in New York City. And you spent 8 years litigating business cases at a New York law firm. What is unique about this broad experience is that you have seen the law truly from all sides. On the district court you saw firsthand the actual impact of the law on people before you in both civil and criminal cases. You considered, wrote, and joined thousands of opinions clarifying the law and reviewing district court decisions in your time on the appellate court. Your 11 years there were a rigorous training ground for the Supreme Court. It is very unique for a judge to have both levels of Federal court experience, and you will be the only one on the current Supreme Court with this background. You were a prosecutor who tried murder, robbery, and child pornography cases. So you know firsthand the impact of crime on a major metropolis, and you have administered justice in the close and personal forum of a trial court. You also possess a wealth of knowledge in the complicated arena of business law with its contract disputes, patent and copyright issues, and antitrust questions. And as an associate and partner at a private law firm, you have tried complex civil cases in the areas of real estate, banking, and contracts law, as well as intellectual property law, which I am told was a specialty of yours. So you bring a deep and broad experience in the law to the Supreme Court. In my nearly 17 years on this Committee, I have held certain qualities that a Supreme Court nominee must possess: First, broad and relative experience. You satisfy that. Second, a strong and deep knowledge of the law and the Constitution. You satisfy that. Third, a firm commitment to follow the law. And you have in all of the statistics indicated that. Next, a judicial temperament and integrity. And you have both of those. And, finally, mainstream legal reasoning. And there is everything in your record to indicate---- [Protestor outburst.]
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. The Senate will---- [Protestor outburst.] Chairman Leahy. The police will remove that man. Let me make very clear: There will be no outbursts allowed in this Committee, either for or against the nominee, either for or against any position that Senator Sessions or I or any other Senator have. This is a hearing of the United States Senate, and we will have order and we will have decorum. There are people who want to have this hearing. In fairness to Judge Sotomayor, it will be done orderly, and I will direct the police to remove anybody who does any kind of an outburst, either for or against the nominee, either for or against any member of this Committee.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you, Mr. Chairman, for your firm words. I support you 100 percent.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. And the record will show my comments outside of Senator Feinstein's comments, and I yield back to her.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you, Mr. Chairman. Bottom line, I believe your record indicates that you possess all of these qualities. Over the past years of my service on this Committee, I have found it increasingly difficult to know from answers to questions we ask from this dais how a nominee will actually act as a Supreme Court Justice, because answers here are often indirect and increasingly couched in euphemistic phrases. For example, nominees have often responded to our specific questions with phrases like ``I have an open mind,'' or yes, that is precedent ``entitled to respect,'' or ``I have no quarrel with that.'' Of course, these phrases obfuscate and prevent a clear understanding of where a nominee really stands. For example, several past nominees have been asked about the Casey decision, where the Court held that the Government cannot restrict access to abortions that are medically necessary to preserve a woman's health. Some nominees responded by assuring that Roe and Casey were precedents of the Court entitled to great respect. And in one of the hearings, through questioning by Senator Specter, this line of cases was acknowledged to have created a ``super- precedent.'' But once on the Court, the same nominees voted to overturn the key holding in Casey--that laws restricting a woman's medical care must contain an exception to protect her health. Their decision did not comport with the answers they gave here, and it disregarded stare decisis and the precedents established in Roe, in Ashcroft, in Casey, in Thornburgh, in Carhart I, and in Ayotte. So ``super-precedent'' went out the window, and women lost a fundamental constitutional protection that had existed for 36 years. Also, it showed me that Supreme Court Justices are much more than umpires calling balls and strikes and that the word ``activist'' is often used only to describe opinions of one side. As a matter of fact, in just 2 years, these same nominees have either disregarded or overturned precedent in at least eight other cases: A case involving assignments to attain racial diversity in school assignments; a case overruling 70 years of precedent on the Second Amendment and Federal gun control law; a case which increased the burden of proof on older workers to prove age discrimination; a case overturning a 1911 decision to allow manufacturers to set minimum prices for their products; a case overruling two cases from the 1960s on time limits for filing criminal appeals; a case reversing precedent on the Sixth Amendment right to counsel; a case overturning a prior ruling on regulation of issue ads relating to political campaigns; and a case disregarding prior law and creating a new standard that limits when cities can replace civil service exams that they may believe have discriminated against a group of workers. So I do not believe that Supreme Court Justices are merely umpires calling balls and strikes. Rather, I believe that they make the decisions of individuals who bring to the Court their own experiences and philosophies. Judge Sotomayor, I believe you are a warm and intelligent woman. I believe you are well studied and experienced in the law with some 17 years of Federal court experience involving 3,000 appeals and 450 trial cases. So I believe you, too, will bring your experiences and philosophies to this highest Court, and I believe that will do only one thing--and, that is, to strengthen this high institution of our great country. Thank you Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator Feinstein.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Judge Sotomayor, I notice how attentive you have been to everything we are saying. Thank you very much. Congratulations on your nomination to be Associate Justice and welcome to the Judiciary Committee, and a warm welcome to you and your family and friends. They are all very proud of you, and rightly so. You have a distinguished legal and judicial record. No doubt it is one that we would expect of any individual nominated to the Supreme Court. You made your start from very humble beginnings. You overcame substantial obstacles and went on to excel at some of the Nation's top schools. You became an assistant district attorney and successful private practice attorney in New York City. You have been on the Federal bench as a district court and appellate court judge since 1992. These are all very impressive legal accomplishments which certainly qualify you to be on the Supreme Court. However, an impressive legal record and superior intellect are not the only criteria that we on this Committee have to consider. To be truly qualified, the nominee must understand the proper role of a judge in society--that is, we want to be absolutely certain that the nominee will faithfully interpret the law and the Constitution without bias or prejudice. This is the most critical qualification of a Supreme Court Justice--the capacity to set aside one's own feelings so that he or she can blindly and dispassionately administer equal justice for all. So the Senate has a constitutional responsibility of advise and consent, to confirm intelligent, experienced individuals anchored in the Constitution, not individuals who will pursue personal and political agendas from the bench. Judge Sotomayor, you are nominated to the highest Court of the land which has the final say on the law. As such, it is even more important for the Senate to ascertain whether you can resist the temptations to mold the Constitution to your own personal beliefs and preferences. It is even more important for the Senate to ascertain whether you can dispense justice without bias or prejudice. Supreme Court Justices sit on the highest Court in the land so that they are not as constrained, as you know, to follow precedent to the same extent as district and circuit judges. There is a proper role of a judge in our system of limited government and checks and balances. Our democratic system of government demands that judges not take on the role of policymakers. That is a role properly reserved to legislators, who can be voted out of office if people do not like what they legislate, unlike judges not being voted out of office. The Supreme Court is meant to be a legal institution, not a political one. But some individuals and groups do not see it that way. They see the Supreme Court as ground zero for their political and social battles. They want Justices to implement their political and social agenda through the judicial process. That is not what our great American tradition envisioned. Those battles are appropriately fought in our branch of Government, the legislative branch. So it is incredibly important that we get it right and confirm the right kind of person for the Supreme Court. Supreme Court nominees should respect the constitutional separation of power. They should understand that the touchstone of being a good judge is the exercise of judicial restraint. Good judges understand that their job is not to impose their own personal opinions of right and wrong. They know their job is to say what the law is rather than what they personally think that it ought to be. Good judges understand that they must meticulously apply the law and the Constitution even if the results they reach are unpopular. Good judges know that the constitutional law constrains judges every bit as much as it constrains legislators, executives, and our whole citizenry. Good judges not only understand these fundamental principles; they live and breathe them. President Obama said that he would nominate judges based on their ability to empathize in general and with certain groups in particular. This empathy standard is troubling to me. In fact, I am concerned that judging based on empathy is really just legislating from the bench. The Constitution requires that judges be free from personal politics, feelings, and preferences. President Obama's empathy standard appears to encourage judges to make use of their personal politics, feelings, and preferences. This is contrary to what most of us understand to be the role of the judiciary. President Obama clearly believes that you measure up to his empathy standard. That worries me. I have reviewed your record and have concerns about your judicial philosophy. For example, in one speech you doubted that a judge could ever be truly impartial. In another speech, you argued that it is a disservice both to law and society for judges to disregard personal views shaped by one's ``differences as a woman or man of color.'' In yet another speech, you proclaimed that the court of appeals is where policy is made. Your ``wise Latina'' comment starkly contradicts a statement by Justice O'Connor that a wise old man and a wise old woman would eventually reach the same conclusion in a case. These statements go directly to your views of how a judge should use his or her background and experience when deciding cases. Unfortunately, I fear they do not comport with what I and many others believe is the proper role of a judge or an appropriate judicial method. The American legal system requires that judges check their biases, personal preferences, and politics at the door of the courthouse. Lady Justice stands before the Supreme Court with a blindfold, holding the scales of justice. Just like Lady Justice, judges and Justices must wear blindfolds when they interpret the Constitution and administer justice. I will be asking you about your ability to wear that judicial blindfold. I will be asking you about your ability to decide cases in an impartial manner and in accordance with the law and the Constitution. I will be asking you about your judicial philosophy, whether you allow biases and personal preferences to dictate your judicial methods. Finally--or ideally, the Supreme Court shouldn't be made up of men and women who are on the side of one special group or issue; rather, the Supreme Court should be made up of men and women who are on the side of the law and the Constitution. I am looking to support a restrained jurist committed to the rule of law and the Constitution. I am not looking to support a creative jurist who will allow his or her background and personal preferences to decide cases. The Senate needs to do its job and conduct a comprehensive and careful review of your record and qualifications. You are nominated to a lifetime position on the highest Court. The Senate has a tremendous responsibility to confirm an individual who has superior intellectual abilities, solid legal expertise, and an even judicial demeanor and temperament. Above all, we have a tremendous responsibility to confirm an individual who truly understands the proper role of a Justice. So I will be asking questions about your judicial qualifications. However, like all of my colleagues, I am committed to giving you a fair and respectful hearing as is appropriate for Supreme Court nominees. I congratulate you once again.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator Grassley. Senator Feingold, I would yield to you.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Thank you, Mr. Chairman. I too want to welcome and congratulate the nominee, Judge Sotomayor. I greatly admire your accomplishments and your long record of public service. Let me also thank you in advance for the long week you're about to spend in this room. The Supreme Court plays a unique and central role in the life of our nation. Those who sit as Justices have extraordinary power over some of the most important, and most intimate, aspects of the lives of American citizens. It is therefore not surprising at all that the nomination and confirmation of a Supreme Court Justice is such a widely anticipated and widely covered event. The nine men and women who sit on the court have enormous responsibilities, and those of us tasked with voting on the confirmation of a nominee have a significant responsibility as well. This is clearly one of the most consequential things that one does as a United States Senator and I'm honored and humbled to be given this role by the people of Wisconsin. The ultimate responsibility of the Supreme Court is to safeguard the rule of law, which defines us as a nation and protects us all. In the past eight years, the Supreme Court has played a crucial role in checking some of the previous administration's most egregious departures from the rule of law. Time after time in cases arising out of actions taken by the Administration after September 11, the court has said: ``No. You have gone too far.'' It said ``no'' to the Bush Administration's view that it could set up a law-free zone at Guantanamo Bay. It said ``no'' to the Administration's view that it could hold a citizen in the United States incommunicado indefinitely with no access to a lawyer. It said ``no'' to the Administration's decision to create military commissions without congressional authorization, and it said no to the Administration and to Congress when they tried to strip the constitutional right to habeus corpus from prisoners held at Guantanamo. These were courageous decisions, and in my opinion, they were correct decisions. They made plain, as Justice O'Connor wrote in the Hamdi decision in 2004: ``A state of war is not a blank check for the President when it comes to the rights of the nation's citizens.'' These were all close decisions, some decided by a 5 to 4 vote. That fact underscores the unparalleled power that each Supreme Court justice has. In my opinion, one of the most important qualities that a Supreme Court justice must have is courage. The courage to stand up to the President and Congress in order to protect the constitutional rights of the American people and preserve the rule of law. I have touched on the crucial recent decisions of the court in the area of executive power, but we know, of course, that there are countless past Supreme Court decisions that have had a major impact on aspects of our national life. The court rejected racial discrimination in education; it guaranteed the principle of ``one person, one vote''; it made sure that even the poorest person accused of a crime in this country can be represented by counsel; it made sure that newspapers can't be sued for libel by public figures for merely making a mistake. It protected the privacy of telephone conversations from unjustified government eavesdropping; it protected an individual's right to possess afirearm for private use; and it even decided a presidential election. It made these decisions by interpreting and applying open- ended language in our Constitution. Phrases like ``equal protection of the laws,'' ``due process of law,'' ``freedom of the press,'' ``unreasonable searches and seizures,'' and ``the right to bear arms.'' Senator Feinstein just suggested these momentous decisions were not simply the result of an umpire calling balls and strikes. Easy cases where the law is clear almost never make it to the Supreme Court. The great constitutional issues that the Supreme Court is called upon to decide require much more than the mechanical application of universally accepted legal principles. That is why Justices need great legal expertise, but they also need wisdom, they need judgment, they need to understand the impact of their decisions on the parties before them and the country around them, from New York City to small towns like Spooner, Wisconsin. And they need a deep appreciation of and dedication to equality, to liberty and to democracy. That is why I suggest to everyone watching today that they be a little wary of a phrase that they are hearing at this hearing: ``judicial activism.'' That term really seems to have lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as ``activist'' in their disregard for precedent and their willingness to ignore or override the intent of Congress. At this point, perhaps we should all accept that the best definition of a ``judicial activist'' is a judge who decides a case in a way you don't like. Each of the decisions I mentioned earlier was undoubtedly criticized by someone at the time it was issued, and maybe even today, as being ``judicial activism.'' Yet some of them are, as the judge well knows, among the most revered Supreme Court decisions in modern times. Mr. Chairman, every Senator is entitled to ask whatever questions he or she wants at these hearings and to look at whatever factors he or she finds significant in evaluating this nominee. I hope Judge Sotomayor will answer all questions as fully as possible. I'll have questions of my own on a range of issues. Certainly, with the two most recent Supreme Court nominations, Senators did ask tough questions and sought as much information from the nominees as we possibly could get. And I expect nothing less from my colleagues in these hearings. I am glad, however, that Judge Sotomayor will finally have an opportunity to answer some of the unsubstantiated charges that have been made against her. One attack that I find particularly shocking is the suggestion that she will be biased against some litigants because of her racial and ethnic heritage. This charge is not based on anything in her judicial record because there is absolutely nothing in the hundreds of opinions she has written to support it. That long record, which is obviously the most relevant evidence we have to evaluate her, demonstrates a cautious and careful approach to judging. Instead, a few lines from a 2001 speech, taken out of context, have prompted some to charge that she is a racist. I believe that no one who reads the whole Berkeley speech could honestly come to that conclusion. The speech is actually a remarkably thoughtful attempt to grapple with difficult issues not often discussed by judges: How does a judge's personal background and experiences affect her judging? And Judge Sotomayor concludes her speech by saying the following: ``I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me require.'' Mr. Chairman, these are the words of a thoughtful, humble, and self-aware judge striving to do her very best to administer impartial justice for all Americans, from New York City to Spooner, Wisconsin. It seems to me that is a quality we want in our judges. Judge Sotomayor is living proof that this country is moving in the right direction on the issue of race, that doors of opportunity are finally starting to open to all of our citizens. And I think that nomination will inspire countless children to study harder and dream higher, and that is something we should all celebrate. Let me again welcome and congratulate you. I look forward to further learning in these hearings whether you have the knowledge, the wisdom, the judgment, the integrity, and yes, the courage, to serve with distinction on our nation's highest court. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much. I will recognize Senator Kyl, the Deputy Republican Leader of the United States Senate. Senator Kyl.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Thank you, Mr. Chairman. I would hope that every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court. In fulfilling our advise and consent role, of course, we must evaluate Judge Sotomayor's fitness to serve on the merits, not on the basis of her ethnicity. With a background that creates a prima facie case for confirmation, the primary question I believe Judge Sotomayor must address in this hearing is her understanding of the role of an appellate judge. From what she has said, she appears to believe that her role is not constrained to objectively decide who wins based on the weight of the law, but rather who in her personal opinion, should win. The factors that will influence her decisions apparently include her gender and Latina heritage and foreign legal concepts that as she said, get her creative juices going. What is the traditional basis for judging in America? For 220 years, presidents and the Senate have focused on appointing and confirming judges and justices who are committed to putting aside their biases and prejudices and applying law to fairly and impartially resolve disputes between parties. This principle is universally recognized and shared by judges across the ideological spectrum. For instance, Judge Richard Paez of the Ninth Circuit with whom I disagree on a number of issues explained this in the same venue where, less than 24 hours earlier, Judge Sotomayor made her now-famous remarks about a wise Latina woman making better decisions than other judges. Judge Paez described the instructions that he gave to jurors who were about to hear a case. ``As jurors,'' he said, ``recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot--if you cannot set aside those prejudices, biases and passions, then you should not sit on the case.'' And then Judge Paez said, ``The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance,'' he said. ``I have my oath hanging on the wall in the office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that, I am viewed as a Latino judge. As I judge cases, I try to judge them fairly. I try to remain faithful to my oath.'' What Judge Paez said has been the standard for 220 years. It correctly describes the fundamental and proper role for a judge. Unfortunately, a very important person has decided it is time for change, time for a new kind of judge, one who will apply a different standard of judging, including employment of his or her empathy for one of the parties to the dispute. That person is President Obama, and the question before us is whether his first nominee to the Supreme Court follows his new model of judging or the traditional model articulated by Judge Paez. President Obama, in opposing the nomination of Chief Justice Roberts said that ``while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.'' How does President Obama propose judges deal with these hard cases? Does he want them to use judicial precedent, canons of construction, and other accepted tools of interpretation that judges have used for centuries? No, President Obama says that ``in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.'' Of course, every person should have empathy, and in certain situations, such as sentencing, it may not be wrong for judges to be empathetic. The problem arises when empathy and other biases or prejudices that are in the judge's heart become the critical ingredient to deciding cases. As Judge Paez explained, a judge's prejudices, biases, and passions should not be embraced, they must be set aside so that a judge can render an impartial decision as required by the judicial oath and as parties before the court expect. I respectfully submit that President Obama is simply outside the mainstream in his statements about how judges should decide cases. I practiced law for almost 20 years before every level of state and federal court, including the U.S. Supreme Court, and never once did I hear a lawyer argue that he had no legal basis to sustain his client's position, so that he had to ask the judge to go with his gut or his heart. If judges routinely started ruling on the basis of their personal feelings, however well-intentioned, the entire legitimacy of the judicial system would be jeopardized. The question for this committee is whether Judge Sotomayor agrees with President Obama's theory of judging or whether she will faithfully interpret the laws and Constitution and take seriously the oath of her prospective office. Many of Judge Sotomayor's public statements suggest that she may, indeed, allow, and even embrace, decision-making based on her biases and prejudices. The wise Latina woman quote, which I referred to earlier, suggests that Judge Sotomayor endorses the view that a judge should allow gender, ethnic and experience-based biases to guide her when rendering judicial opinions. This is in stark contrast to Judge Paez's view that these factors should be set aside. In the same lecture, Judge Sotomayor posits that ``there is no objective stance but only a series of perspectives. No neutrality, no escape from choice in judging'' and claims that ``the aspiration to impartiality is just that. It's an aspiration,'' she says, ``because it denies the fact that we are by our experiences making different choices than others.'' No neutrality, no impartiality in judging? Yet isn't that what the judicial oath explicitly requires? Judge Sotomayor. clearly rejected the notion that judges should strive for an impartial brand of justice. She has already accepted that her gender and Latina heritage will affect the outcome of her cases. This is a serious issue, and it's not the only indication that Judge Sotomayor has an expansive view of what a judge may appropriately consider. In a speech to the Puerto Rican ACLU, Judge Sotomayor endorsed the idea that American judges should use good ideas found in foreign law so that America does not lose influence in the world. The laws and practices of foreign nations are simply irrelevant to interpreting the will of the American people as expressed through our Constitution. Additionally, the vast expanse of foreign judicial opinions and practices from which one might draw simply gives activist judges cover for promoting their personal preferences instead of the law. You can, therefore, understand my concern when I hear Judge Sotomayor say that unless judges take it upon themselves to borrow ideas from foreign jurisdictions, America is ``going to lose influence in the world.'' That's not a judge's concern. Some people will suggest that we should not read too much into Judge Sotomayor's speeches and articles, that the focus should instead be on her judicial decisions. I agree that her judicial record is an important component of our evaluation, and I look forward to hearing why, for instance, the Supreme Court has reversed or vacated 80 percent of her opinions that have reached that body, by a total vote count of 52 to 19. But we cannot simply brush aside her extrajudicial statements. Until now, Judge Sotomayor has been operating under the restraining influence of a higher authority, the Supreme Court. If confirmed, there will be no such restraint that would prevent her from, to paraphrase President Obama, deciding cases based on her heart-felt views. Before we can faithfully discharge our duty to advise and consent, we must be confident that Judge Sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based on the rule of law.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Somewhat differently than normal, Senator Schumer will be recognized for five minutes and will reserve his other five minutes for later on when he will be introducing Judge Sotomayor. So Senator Schumer, you are recognized for five minutes.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Thank you, Mr. Chairman and Ranking Member Sessions. I want to welcome Judge Sotomayor. We in New York are so proud of you and to your whole family, who I know are exceptionally proud to be here today to support this historic nomination. Now, our presence here today is about a nominee who is supremely well-qualified with experience on the District Court and the Appellate Court benches that is unmatched in recent history. It is about a nominee who, in 17 years of judging, has authored opinion after opinion that is smart, thoughtful, and judicially modest. In short, Judge Sotomayor has stellar credentials. There's no question about that. Judge Sotomayor has twice before been nominated to the bench and gone through confirmation hearings with bipartisan support. The first time, she was nominated by a Republican President. But most important, Judge Sotomayor's record bespeaks judicial modesty, something that our friends on the right have been clamoring for in a way that no recent nominee's has. It is the judicial record, more than speeches and statements, more than personal background, that most accurately measures how modest a judicial nominee will be. There are several ways of measuring modesty in the judicial record. Judge Sotomayor more than measures up to each of them. First, as we will hear in the next few days, Judge Sotomayor puts rule of law above everything else. Given her extensive and even-handed record, I am not sure how any member of this panel can sit here today and seriously suggest that she comes to the bench with a personal agenda. Unlike Justice Alito, she does not come to the bench with a record number of dissents. Instead, her record shows that she is in the mainstream. She has agreed with Republican colleagues 95 percent of the time, she has ruled for the government in 83 percent of immigration cases against the immigration plaintiff, she has ruled for the government in 92 percent of criminal cases, she has denied race claims in 83 percent of cases and has split evenly on employment cases between employer and employee. Second, and this is an important point because of her unique experience in the District Court. Judge Sotomayor delves thoroughly into the facts of each case. She trusts that an understanding of the facts will lead, ultimately, to justice. I would ask my colleagues to do this: examine a sampling, a random sampling of her cases in a variety of areas. In case after case, she rolls up her sleeves, learns the facts, applies the law to the facts, and comes to a decision irrespective of her inclinations or her personal experience. In a case involving a New York police officer who made white supremacist remarks, she upheld his right to make them. In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it, and she upheld the First Amendment right of a prisoner to wear religious beads under his uniform. In hot-button cases such as professional sports, she carefully adheres to the facts before her and upheld the NFL's ability to maintain certain player restrictions, but also ruled in favor of baseball players to end the Major League Baseball strike. Third, Judge Sotomayor has hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called sympathetic litigants. In dissenting from an award of damages to injured plaintiffs in a maritime accident, she wrote, ``we start with the assumption that it is for Congress, not the federal courts, to articulate the appropriate standards to be applied as a matter of federal law.'' Mr. Chairman, just short of four years ago, then-Judge Roberts sat where Judge Sotomayor is sitting. He told us that his jurisprudence would be characterized by modesty and humility. He illustrated this with a now well-known quote, ``Judges are like umpires. Umpires don't make the rules. They apply them.'' Chief Justice Roberts was, and is, a supremely intelligent man with impeccable credentials. But many can debate whether during his four years on the Supreme Court he actually called pitches as they come--or whether he tried to change the rules. But any objective review of Judge Sotomayor's record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years, far more closely than Chief Justice Roberts has during his four years on the Supreme Court. More important, if Judge Sotomayor continues to approach cases on the Supreme Court as she has for the last 17 years, she will be actually modest judicially. This is because she does not adhere to a philosophy that dictates results over the facts that are presented. So, in conclusion, if the number one standard that conservatives use and apply is judicial modesty and humility, no activism on the Supreme Court, they should vote for Judge Sotomayor unanimously. I look forward to the next few days of hearings, and to Judge Sotomayor's confirmation.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much. I am going to recognize Senator Graham and Senator Cardin and then we're going to take a short break.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, thank you. I have learned something already. The Schumer conservative standard. We will see how that works. No Republican would have chosen you, Judge. That is just the way it is. We would have picked Miguel Estrada. We would all have voted for him. I do not think anybody on that side would have voted for Judge Estrada, who is a Honduran immigrant who came to this country as a teenager, graduated from Columbia magna cum laude, Harvard 1986 magna cum laude and law review editor, a stellar background like yours. That is just the way it was. He never had a chance to have this hearing. He was nominated by President Bush to the D.C. Circuit Court of Appeals which I think most people agree is probably the second highest court in the land, and he never had this day. So the Hispanic element of this hearing is important, but I don't want it to be lost that this is mostly about liberal and conservative politics more than it is anything else. Having said that, there are some of my colleagues on the other side that voted for Judge Roberts and Alito, knowing they would not have chosen either one of those. I will remember that. Now, unless you have a complete meltdown, you are going to get confirmed. I do not think you will, but the drama being created here is interesting. My Republican colleagues who voted against you I assure you could vote for a Hispanic nominee. They just feel unnerved by your speeches and by some of the things that you have said and some of your cases. Now, having said that, I do not know what I am going to do yet, but I do believe that you as an advocate with a Puerto Rican defense legal fund that you took on some cases that I would have loved to have been on the other side, that your organization advocated taxpayer funded abortion and said in a brief that to deny a poor black woman Medicaid funding for an abortion was equivalent to the Dred Scott case. That is a pretty extreme thing to say, but I think it was heartfelt. I would look at it the other way to take my taxpayer dollars and provide an abortion that I disagree with is pretty extreme. So there is two ways of looking at that. You were a prosecutor but your organization argued for the repeal of the death penalty because it was unfairly applied and discriminatory against minorities. Your organization argued for quotas when it came to hiring. I just want my colleagues to understand that there can be no more liberal group in my opinion than the Puerto Rican Defense Legal Fund when it came to advocacy. What I hope is that if we ever get a conservative President and he nominates someone who has an equal passion on the other side that we will not forget this moment, that you could be the NRA General Counsel and still be a good lawyer. My point is I'm not going to hold it against you or the organization for advocating a cause from which I disagree. That makes America a special place. I would have loved to have been on those cases on the other side. I hope that would not have disqualified me. Now, when it comes to your speeches, that is the most troubling thing to me because that gives us an indication when you are able to get outside the courtroom without the robe and inside into how you think life works. This wise Latina comment has been talked about a lot, but I can just tell you one thing. If I had said anything remotely like that, my career would have been over. That's true of most people here. You need to understand that and I look forward to talking with you about that comment. Does that mean that I think that you are racist? You have been called some pretty bad things. No. It just bothers me when somebody wearing a robe takes the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the core, but I don't think it makes you better than anyone else. Now, when I look at your record, there is a lot of truth to what Senator Schumer said. I do not think you have taken the opportunity on the circuit to be a cause-driven judge. But what we are talking about here today is what will you do when it comes to making policy. I'm pretty well convinced I know what you are going to do. You are probably going to decide cases differently than I would. So that brings me back to what am I supposed to do knowing that? I do not think anybody here worked harder for Senator McCain than I did, but we lost and President Obama won, and that ought to matter. It does to me. Now, what standard do I apply? I can assure you that if I applied Senator Obama's standard to your nomination, I wouldn't vote for you. Because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to judging. He said something about the 5 percent of the cases that we are all driven by. He said something to the effect, in those difficult cases, the critical ingredient is applied by what is in the judge's heart. Well, I have no way of knowing what is in your heart anymore than you have knowing what is in my heart. So that to me is an absurd, dangerous standard. Maybe something good could come out of these hearings. If we start applying that to nominees, it will ruin the judiciary. I have no idea what is in your heart anymore than you have an idea of what is in my heart. I think it takes us down a very dangerous road as a country when we start doing that. Now, there was a time when someone like Scalia and Ginsburg got 95 plus votes. If you were confused about where Scalia was coming down, as a judge you should not be voting anymore than if you were a mystery about what Justice Ginsburg was going to do in these 5 percent of the cases. That is no mystery. There is some aspect of you that I'm not sure about that gives me hope that you may not go down the Senator Feingold road when it comes to the war on terror. We will talk about that later on. But generally speaking, the President has nominated someone of good character, someone who has lived a very full and fruitful life who is passionate from day one from the time you got a chance to showcase who you are, you have stood out and you have stood up and you have been a strong advocate and you will speak your mind. The one thing I am worried about is that if we keep doing what we are doing, we are going to deter people from speaking their mind. I do not want milk toast judges. I want you to be able to speak your mind, but you have got to understand when you gave these speeches as a sitting judge, that was disturbing to me. I want lawyers who believe in something and are willing to fight for it. I do not want the young lawyers of this country feeling like there is certain clients they cannot represent because when they come before the Senate, it will be the end of their career. So I do not know how I am going to vote, but my inclination is that elections matter. I am not going to be upset with any of my colleagues who find that you are a bridge too far, because in many ways what you have done in your legal career and the speeches you have made give me great insight as to where you will come out on these 5 percent of cases. But President Obama won the election and I will respect that. But when he was here, he set in motion a standard I thought that was more about seeking the Presidency than being fair to the nominee. When he said the critical ingredient is supplied by what is in the judge's heart, translated that means I am not going to vote against my base because I am running for President. We have got a chance to start over. I hope we will take that chance and you will be asked hard questions and I think you expect that. My belief is that you will do well because whether or not I agree with you on the big themes of life is not important. The question for me is have you earned the right to be here. If I give you this robe to put you on the Supreme Court, do I believe at the end of the day that you will do what you think is best, that you have courage and you will be fair. Come Thursday I think I will know more about that. Good luck.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Just so we make sure we are all using the same facts, Mr. Estrada was nominated when Republicans were in charge of the Senate, he was not given a hearing by the Republicans. He was given a hearing when the Democrats took back the majority and the Senate and then he was told at that time, there were a number of questions that were submitted to him by both Republicans and Democrats and before it could be set for a vote on the floor to answer those questions, he declined to, he may have been distracted by an offer of a very high paying law firm, but I do not know. He was not given a hearing when the Republicans were in charge. He was given a hearing when the Democrats were in charge.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. If I may, Mr. Chairman, since you brought it up.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. I yield to Senator Sessions.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. We had seven attempts to bring him up for a final vote and that was blocked. I think I spoke on his behalf more than any other Senator. I do feel like that it was a clear decision on the part of the Democrats. The objection over release of documents of course were internal memorandum--legal memorandum that he had provided that the former Solicitor General said it was not appropriate for the Department of Justice to produce. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. He should have had that hearing when the Republicans were in charge is what you are saying. Senator Cardin. Once Senator Cardin is finished, we will take a 10-minute break.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Judge Sotomayor, welcome to the United States Senate. I think you will find that each member of this Committee and each member of the United States Senate wants to do what is right for our country. Now we may differ on some of our views, which will come out during this hearing, but I think we all share a respect for your public service. Thank you for your willingness to serve on the Supreme Court of the United States and I thank your family for the sacrifices they have made. I am honored to represent the people of Maryland in the U.S. Senate and to serve on the Judiciary Committee, as we consider one of our most important responsibilities, whether we should recommend to the full Senate the confirmation of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States. The next term of the Supreme Court that begins in October is likely to consider fundamental issues that will impact the lives of all Americans. In recent years, there have been many important decisions decided by the Supreme Court by a 5-4 vote. Each Justice can play a critical role in forming the needed consensus in our nation's highest court. A new Justice could and very well may have a profound impact on the direction of the court. Supreme Court decisions affect each and every person in our nation. I think of my own family's history. My grandfather came to America more than 100 years ago. I am convinced that they came to America not only for greater economic opportunities, but because of the ideals expressed in our Constitution, especially the First Amendment guaranteeing religious freedom. My grandparents wanted their children to grow up in a country where they were able to practice their Jewish faith and fully participate in their community and government. My father, one of their sons, became a lawyer, state legislator, Circuit Court judge and President of his synagogue. And now his son serves in the U.S. Senate. While our Founding Fathers made freedom of religion a priority, equal protection for all races took longer to achieve. I attended Liberty School No. 64, a public elementary school in Baltimore City. It was part of a segregated public school system that under the law denied every student in Baltimore the opportunity to learn in a classroom that represented the diversity of our community. I remember with great sadness how discrimination was not only condoned but, more often than not, actually encouraged against Blacks, Jews, Catholics, and other minorities in the community. There were neighborhoods that my parents warned me to avoid for fear of my safety because I was Jewish. The local movie theater denied admission to African Americans. Community swimming pools had signs that said, ``No Jews, No Blacks Allowed.'' Even Baltimore's amusement parks and sports clubs were segregated by race. Then came Brown v. Board of Education and suddenly my universe and community were changed forever. The decision itself moved our nation forward by correcting grievous wrongs that were built into the law. It also brought to the forefront of our nation's consciousness a great future jurist from Baltimore, Thurgood Marshall. Marshall had been denied admission to the University of Maryland Law School due to the color of his skin but went on to represent the plaintiffs in the 1954 landmark Brown v. Board of Education. And in 1967, it was Marshall, the grandson of a slave, who was appointed by President Lyndon Johnson as the first African American to serve on the Supreme Court. The nine justices of the United States Supreme Court have the tremendous responsibility of safeguarding the framers' intent and the guiding values of our Constitution while ensuring the protections and rights found in that very Constitution are applied to and relevant to the issues of the day. At times, the Supreme Court has and should look beyond popular sentiment to preserve these basic principles and the rule of law. The next justice, who will fill Justice Souter's place on the court will be an important voice on these fundamental issues. It is my belief that the Constitution and Bill of Rights were created to be living documents that stand together as the foundation for the rule of law in our nation. Our history reflects this. 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. Laws passed by Congress and decisions by the Supreme Court undeniably moved our country forward, continuing the progression of Constitutional protections that have changed our Nation for the better. Before the Court ruled in Brown v. Board of Education that separate was not equal, the law permitted our society to have separate facilities for black and white students. Before the Court ruled in Loving v. Virginia, a state could prohibit persons from marrying based on race. Before the Court ruled in Roe v. Wade, women had no constitutional implied right to privacy. These are difficult questions that have come before the Court and that the Framers could not have anticipated. New challenges will continue to arise but the basic framework of protections remains. I want to compliment President Obama in forwarding to the United States Senate a nominee, Judge Sonia Sotomayor, who is well qualified for our consideration. Her well-rounded background, including extensive experiences as a prosecutor, trial judge and appellate judge, will prove a valuable addition to our nation's court. As a relatively new member of the Senate Judiciary Committee, as I prepared for this week, I considered a few key standards that apply to all judicial nominations. First, I believe nominees must have an appreciation for the Constitution and the protections it provides to each and every American. She or he must embrace a judicial philosophy that reflects mainstream American values, not narrow ideological interests. They should have a strong passion to continue the Court's advancements in Civil Rights. There is a careful balance to be found here. Our next Justice should advance the protections in our Constitution, but not disregard important precedent that has made our society stronger by embracing our civil liberties. I believe judicial nominees also must demonstrate a respect for the rights and responsibilities of each branch of government. These criteria allow me to evaluate a particular judge and whether she or he might place their personal philosophy ahead of the responsibility of the office. As this Committee begins considering the nomination of Sonia Sotomayor, I want to quote Justice Thurgood Marshall, who said, ``None of us got where we are solely by pulling ourselves up by our bootstraps.'' Judge Sotomayor is a perfect example of how family, hard work, supportive professors and mentors, and opportunity all can come together to create a real American success story. She was born in New York, to a Puerto Rican family, and grew up in a public housing project in the South Bronx. Her mother was a nurse and her father was a factory worker with a third-grade education. She was taught early in life that education is the key to success, and her strong work ethic enabled her to excel in school and graduate valedictorian of her high school. She attended Princeton University, graduating cum laude and Phi Beta Kappa, and she received the highest honors Princeton awards to an undergraduate. At Yale Law School, she was editor of the Law Review, where she was known to stand up for herself and not to be intimidated by anyone. Nominated by both Democratic and Republican presidents, for 17 years she has been a distinguished jurist and now has more federal judicial experience than any Supreme Court nominee in the last hundred years. This week's hearings are essential. With some understanding of the context of Judge Sotomayor's life and the role that she potentially is about to fill on the Supreme Court, I believe it is particularly important during these confirmation hearings to question Judge Sotomayor on the guiding principles she would use on reaching decisions. For example, it is important for me to understand her interpretation of established precedent, on protecting individual Constitutional rights. I believe it would be wrong for Supreme Court Justices to turn their back on landmark Court precedents protecting individual Constitutional rights. It is likely that the Supreme Court will consider important protections in our Constitution for women, our environment and consumers, as well as voting rights, privacy, and the separation of church and state, among others, in coming years. The Supreme Court also has recently been active in imposing limits on executive power. It will continue to deal with the Constitutional rights in our criminal justice system, the rights of terror detainees and the rights of non-citizens. All of these issues test our Nation's and the Supreme Court's commitment to our founding principles and fundamental values. For this reason, we need to know how our nominee might approach these issues and analyze these decisions. Mr. Chairman, I look forward to hearing from Judge Sotomayor on these issues and I expect that she will share with this committee and the American people her judicial views and her thoughts on the protections in our Constitution. Once again, Judge Sotomayor, I want to thank you for your public service and readiness to take on these great responsibilities for our nation. I also again want to thank your family for their clear support and sacrifice that has brought us to this hearing today.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator Cardin. After discussion with Senator Sessions, we will take a 10-minute break and come back. We are trying to figure out a lunch hour time. You have been very, very patient, Judge. One thing we will do in case the press wonders, there is a sign in front of you that has your name, which everybody knows here. It is angled in such a way that it is shining right in the eyes--no, don't you worry about it. The sign will be gone. That will not mean that that is not your place when you come back. Thank you. We stand recessed for 10 minutes. [Recess 11:42 a.m. to 12:01 p.m.] Chairman Leahy. Judge, you may have a broken ankle, but you beat me back to the hearing room. I am looking, Senator Sessions. It will be Senator Cornyn next. Is that right?
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Yes.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Senator Cornyn, and then Senator Whitehouse.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Thank you, Mr. Chairman. Judge Sotomayor, you will recall Justice Jackson said of the Supreme Court, ``We are not final because we are infallible. We are infallible only because we are final.'' Hence, the importance of these hearings and your nomination. I want to join my colleagues in extending a warm welcome to you and your family and, of course, join my other colleagues who have noted your distinguished career. As I have said as often as I have been asked about your nomination in the weeks since it occurred, I said your nomination should make us all feel good as Americans that people of humble origin can work hard, through sacrifice and love and support of their families, achieve great things in America. That makes me feel very good about our country and about the opportunity it provides to each of us. In the history of the United States, there have only been 110 people who served on the Supreme Court--110. It is amazing to think about that. This means that each and every Supreme Court nomination is a historic moment for our Nation. Each Supreme Court nomination is a time for national conversation and reflection on the role of the Supreme Court. We have to ask ourselves, those of us who have the constitutional obligation to provide advice and consent, what is the proper direction of the Supreme Court in deciding how we should vote and conduct ourselves during the course of the hearing. And, of course, I think it is always useful to recall our history, that the Framers created a written Constitution to make sure our constitutional rights were fixed and certain; that the State conventions who represented we, the people, looked at that written Constitution and decided to ratify it. And the idea was, of course, that our rights should not be floating in the ether but, rather, be written down for all to see so we could all understand what those rights, in fact, are. This framework gave judges a role that is both unique and very important. The role of judges was intended to be modest-- that is, self-restrained and limited. Judges, of course, are not free to invent new rights as they see fit. Rather, they are supposed to enforce the Constitution's text and to leave the rest up to ``we, the people,'' through the elected representatives of the people, such as the Congress. It is my opinion that over time the Supreme Court has often veered off the course established by the Framers. First, the Supreme Court has invented new rights not clearly rooted in any constitutional text. For example, the Supreme Court has micro managed the death penalty, recognized in 35 States and by the Federal Government itself, and created new rights spun from whole cloth. It has announced constitutional rules governing everything from punitive damages to sexual activity. It has relied on international law that you have heard some discussion about that the people have never adopted. The Supreme Court has even taken on the job of defining the rules of the game of golf. If you are curious, that is PGA Tour v. Martin from 2001. Some people have talked about judicial activism. In one sense, I think people say activism is a good thing if it is enforcing the rights and the laws that have been passed by the legislative branch. On the other hand, as you know, inventing new rights, veering off this course of enforcing a written text and pulling ideas out of the ether are pretty far from enforcing the written Constitution that the Framers proposed and that the people enacted. My opinion is that as the Supreme Court has invented new rights, it has often neglected others. This flip side is troubling to me, too. Many of the original important safeguards on Government power have been watered down or even ignored. Express constitutional limitations like the Takings Clause of the Fifth Amendment, designed to protect private property, and the Commerce Clause's limitations on federal power, as well as the Second Amendment right to keep and bear arms, I believe have been artificially limited, almost like they have been written out of the Constitution over time. On occasion, judges just have not enforced them like I believe the American people expected them to do. So what is the future like? Where should the Supreme Court go from here? I think there are two choices. First, the Supreme Court could try to get us back on course. That is, the Court could demonstrate renewed respect for our original plan of Government and return us slowly but surely to a written Constitution and written laws rather than judge-made laws. The Supreme Court's recent Second Amendment decision in D.C. v. Heller I think is a good example of that. Or the Court could, alternatively, veer off course once again and follow its own star. It could continue to depart from the written Constitution. It could further erode the established rights that we have in the text of the Constitution, and it could invent even more brand-new rights not rooted in the text and not agreed to by the American people. Your Honor, I think the purpose of this hearing is to determine which path you would take us on, if confirmed to the United States Supreme Court. Would you vote to return to a written Constitution and laws written by the elected representatives of the people? Or would you take us further away from the written Constitution and laws legitimized by the consent of the governed? To help the American people understand which of these paths you would take us down, we need to know more about your record. We need to know more about the legal reasoning behind some of your opinions on the Second Circuit. And we need to know more about some of your public statements related to your judicial philosophy. In looking at your opinions on the Second Circuit, we recognize that lower-court judges are bound by the Supreme Court and by circuit precedent. To borrow a football analogy, a lower-court judge is like the quarterback who executes the plays, not the coach that calls them. That means many of your cases do not really tell us that much about your judicial philosophy or what it would be in action, if confirmed to the United States Supreme Court. But a few of your opinions do raise questions that I intend to ask you about, and they do suggest, I think, the kinds of plays you would call if you were promoted to the coaching staff. These opinions raise the question: Would you steer the Court in a direction of limiting the rights that generations of Americans have regarded as fundamental? So Americans need to know whether you would limit, for example, the scope of the Second Amendment and whether we can count on you to uphold one of the fundamental liberties enshrined in the Bill of Rights. They need to know, we need to know, whether you would limit the scope of the Fifth Amendment and whether you would expand the definition of ``public use'' by which Government can take private property from one person and give it to another. And we need to know whether you will uphold the plain language of the Equal Protection Clause of the 14th Amendment, promising that, ``No State shall..deny to any person within its jurisdiction the equal protection of the laws.'' Judge, some of your opinions suggest that you would limit some of these constitutional rights, and some of your public statements that have already been mentioned suggest that you would invent rights that do not exist in the Constitution. For example, in a 2001 speech, you argue that there is no objectivity in law, but only what you called ``a series of perspectives rooted in life experience of the judge.'' In a 2006 speech, you said that judges can and even must change the law--even introducing what you called ``radical change''--to meet the needs of an ``evolving'' society. In a 2009 speech, you endorsed the use of foreign law in interpreting the American Constitution on the grounds that it gives judges ``good ideas'' that ``get their creative juices flowing.'' Judge Sotomayor, no one can accuse you of not having been candid about your views. Not every nominee is so open about their views. Yet many Americans are left to wonder whether these various--what these various statements mean and what you are trying to get at with these various remarks. Some wonder whether you are the kind of judge who will uphold the written Constitution or the kind of judge who will veer us off course-- and toward new rights invented by judges rather than ratified by the people. These are some my concerns, and I assure you that you will have every opportunity to address those and make clear which path you would take us down if you are confirmed to the Supreme Court. I thank you very much and congratulations once again.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much, Senator Cornyn.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Thank you, Mr. Chairman. Judge Sotomayor, welcome. Welcome to you and to your family. Your nomination caps what has already been a remarkable legal career. And I join many, many Americans who are so proud to see you here today. It is a great country, isn't it? And you represent its greatest attributes. Your record leaves no doubt that you have the intellectual ability to serve as a Justice. From meeting with you and from the outpouring of support I have experienced both personally and from organizations that have worked with you, your demeanor and your collegiality are well established. I appreciate your years as a prosecutor, working in the trenches of law enforcement. I am looking forward to learning more about the experience and judgment you are poised to bring to the Supreme Court. In the last 2\1/2\ months and today, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record. Indeed, these calls for restraint and modesty, and complaints about ``activist'' judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes. It is fair to inquire into a nominee's judicial philosophy, and we will here have a serious and fair inquiry. But the pretense that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs starkly counter to recent history. I particularly reject the analogy of a judge to an ``umpire'' who merely calls ``balls and strikes.'' If judging were that mechanical, we would not need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of constitutional principle, legislative intent, and statutory construction. The umpire analogy is belied by Chief Justice Roberts, though he cast himself as an umpire during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that--and this is a quote--``[i]n every major case since he became the Nation's 17th Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.'' Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, ``has served the interests, and reflected the values of the contemporary Republican party'' ? Some coincidence. For all the talk of modesty and restraint, the right-wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the D.C. Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years. Some balls and strikes. Over and over, news reporting discusses ``fundamental changes in the law'' wrought by the Roberts Court's right-wing flank. The Roberts Court has not kept the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito. So, Judge Sotomayor, I would like to avoid codewords and look for a simple pledge from you during these hearings: that you will respect the role of Congress as representatives of the American people; that you will decide cases based on the law and the facts; that you will not prejudge any case, but listen to every party that comes before you; and that you will respect precedent and limit yourself to the issues that the Court must decide; in short, that you will use the broad discretion of a Supreme Court Justice wisely. Let me emphasize that broad discretion. As Justice Stevens has said, ``the work of Federal judges from the days of John Marshall to the present, like the work of the English common- law judges, sometimes requires the exercise of judgment--a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision.'' Look at our history. America's common law inheritance is the accretion over generations of individual exercises of judgment. Our Constitution is a great document that John Marshall noted leaves ``the minor ingredients'' to judgment, to be deduced by our Justices from the document's great principles. The liberties in our Constitution have their boundaries defined, in the gray and overlapping areas, by informed judgment. None of this is ``balls and strikes.'' It has been a truism since Marbury v. Madison that courts have the authority to ``say what the law is,'' even to invalidate statutes enacted by the elected branches of government when they conflict with the Constitution. So the issue is not whether you have a wide field of discretion: you will. As Justice Cardozo reminds us, you are not free to act as ``a knight-errant, roaming at will in pursuit of [your] own ideal of beauty or of goodness,'' yet, he concluded, ``[w]ide enough in all conscience is the field of discretion that remains.'' The question for this hearing is: Will you bring good judgment to that wide field? Will you understand, and care, how your decisions affect the lives of Americans? Will you use your broad discretion to advance the promises of liberty and justice made by the Constitution? I believe that your diverse life experience, your broad professional background, your expertise as a judge at each level of the system, will bring you that judgement. As Oliver Wendell Holmes famously said, the life of the law has not been logic, it has been experience. If your wide experience brings life to a sense of the difficult circumstances faced by the less powerful among us: the woman shunted around the bank from voicemail to voicemail as she tries to avoid foreclosure for her family; the family struggling to get by in the neighborhood where the police only come with raid jackets on; the couple up late at the kitchen table after the kids are in bed sweating out how to make ends meet that month; the man who believes a little differently, or looks a little different, or thinks things should be different; if you have empathy for those people in this job, you are doing nothing wrong. The Founding Fathers set up the American judiciary as a check on the excesses of the elected branches and as a refuge when those branches are corrupted or consumed by passing passions. Courts were designed to be our guardians against what Hamilton in the Federalist Papers called ``those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people . . . and which . . . have a tendency . . . to occasion serious oppressions of the minor party in the community.'' In present circumstances, those oppressions tend to fall on the poor and voiceless. But as Hamilton noted, ``[c]onsiderate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day.'' The courtroom can be the only sanctuary for the little guy when the forces of society are arrayed against him, when proper opinion and elected officialdom will lend him no ear. This is a correct, fitting, and intended function of the judiciary in our constitutional structure, and the empathy President Obama saw in you has a constitutionally proper place in that structure. If everyone on the Court always voted for the prosecution against the defendant, for the corporation against the plaintiffs, and for the government against the condemned, a vital spark of American democracy would be extinguished. A courtroom is supposed to be a place where the status quo can be disrupted, even upended, when the Constitution or laws may require; where the comfortable can sometimes be afflicted and the afflicted find some comfort, all under the stern shelter of the law. It is worth remembering that judges of the United States have shown great courage over the years, courage verging on heroism, in providing that sanctuary of careful attention, what James Bryce called ``the cool dry atmosphere of judicial determination,'' amidst the inflamed passions or invested powers of the day. Judge Sotomayor, I believe your broad and balanced background and empathy prepare you well for this constitutional and proper judicial role. And I join my colleagues in welcoming you to the Committee and looking forward to your testimony.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Thank you. Judge, welcome. It is truly an honor to have you before us. It says something remarkable about our country that you are here, and I assure you during your time before this Committee you will be treated with the utmost respect and kindness. It will not distinguish, however, that we will be thorough as we probe the areas where we have concerns. There is no question that you have a stellar resume, and if resumes and judicial history were all that we went by, we wouldn't need to have this hearing. But, in fact, other things add into that. Equally important to us providing consent on this nomination is our determination that you have a judicial philosophy that reflects what our Founders intended. There is great division about what that means. I also wanted to note that I thought this was your hearing, not Judge Roberts' hearing, and that the partial-birth abortion ban was a law passed by the United States Congress and was upheld by the Supreme Court. So I have a different point of view on that. As I expressed to you in our meeting, I think our Nation is at a critical point. I think we are starting to see cracks, and the reason I say that is because I think the glue that binds our Nation together is not our political philosophies. We have very different political philosophies. The thing that binds us together is an innate trust that you can have fair and impartial judgment in this country, that we better than any other nation, when we have been wrong, have corrected the wrongs of our founding; but we have instilled the confidence that, in fact, when you come before it, there is blind justice. And that, in fact, allows us the ability to overlook other areas where we are not so good because it instills in us the confidence of an opportunity to have a fair hearing and a just outcome. I am concerned, as many of my colleagues, with some of your statements, and I do not know if the statements were made to be provocative or if they are truly heart-felt in what you have said. But I know that some of those concerns will guide my questioning when we come to the questioning period. And you were very straightforward with me in our meeting, and my hope is that you will be there as well. I am deeply concerned by your assertion that the law is uncertain--that goes completely against what I just said about the rule of law being the glue that binds us together--and your praise for an unpredictable system of justice. I think we want it to be predictable. We want it to be predictable in its fairness and the fact in how cases are viewed. And it shouldn't matter which judge you get. It should matter what the law is and the facts are. I am worried that our Constitution may be seen to be malleable and evolving when I, as someone who comes from the heartland, seems to grasp and hold and the people that I represent from the State of Oklahoma seem to grasp and hold that there is a foundational document and there are statutes and occasionally treaties that should be the rule rather than our opinions. Other statements such as the court of appeals is where policy is made, that is surprising to me. And as I look at our Founders, the Court is to be a check, not a policymaker. Your assertion that ethnicity and gender will make someone a better judge, although I understand the feelings and emotions behind that, I am not sure that could be factually correct. Maybe a better judge than some, but not a better judge than others. The other statement, there is no objective stance but only a series of perspectives, no neutrality, no escape from choice in judging--what that implies, the fact that it is subjective implies that it is not objective. And if we disregard objective consideration of facts, then all rulings are subjective, and we lose the glue that binds us together as a Nation. Even more important is your questioning of whether the application of impartiality in judging, including transcending personal sympathies and prejudices, is possible in most cases or is even desirable is extremely troubling to me. You have taken the oath already twice and, if confirmed, will take it again. And I want to repeat it again. It has been said once this morning. Here is the oath: ``I do solemnly swear or affirm that I 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 me under the Constitution and the laws of the United States, so help me God.'' It does not reference foreign law anywhere. It does not reference whether or not we lose influence in the international community. We lost influence when we became a country in the international community to several countries. But the fact is that did not impede us from establishing this great republic. I think this oath succinctly captures the role of a judge, and I am concerned about some of your statements in regard to that. Your judicial philosophy might be--and I am not saying it is--inconsistent with the impartial, neutral arbiter that the oath describes. With regard to your judicial philosophy, the burden of proof rests on you, but in this case, that burden has been exaggerated by some of your statements and also by some of President Obama's stated intent to nominate someone who is not impartial but instead favors certain groups of people. During the campaign, he promised to nominate someone who has got the heart and the empathy to recognize what it is like to be a young teenage mom. The implication is that our judges today do not have that. Do you realize how astounding that is? The empathy to understand what it is like to be poor, to be African American or gay or disabled or old. Most of our judges understand what it is like to be old. [Laughter.] Senator Coburn. Senator Obama referred his ``empathy standard'' when he voted against Chief Justice Roberts. He stated, ``The tough cases can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective on how the world works, and the depth and breadth of one's empathy.'' I believe that standard is antithetical to the proper role of a judge. The American people expect their judges to treat all litigants equally, not to favor and not to enter the courtroom already prejudiced against one of the parties. That is why Lady Justice is always depicted blind and why Aristotle defined law as ``reason free from passion.'' Do we expect a judge to merely call balls and strikes? Maybe so, maybe not. But we certainly do not expect them to sympathize with one party over the other, and that is where empathy comes from. Judge Sotomayor, you must prove to the Senate that you will adhere to the proper role of a judge and only base your opinions on the Constitution, statutes, and, when appropriate, treaties. That is your oath. That is what the Constitution demands of you. You must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or your political preferences--which you are entitled to. 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, however, must be regarded by the judges as fundamental law.'' He further stated 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. I look forward to a respectful and rigorous interchange with you during my time to question you. I have several questions that I hope you will be able to answer. I will try not to put you in a case where you have to answer a future opinion. I understand your desire in that regard, and I respect it. I thank you for being here, and I applaud your accomplishments. May God bless you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator. We have been joined by the Deputy Majority Leader, Senator Durbin, and just so everyone can plan, especially you, Judge, we will hear from Senator Durbin. We will then recess until 2 o'clock, and we will come back at 2 o'clock, at which point Senator Klobuchar will be recognized.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you very much, Mr. Chairman. Judge Sotomayor, welcome to you and your family. These nomination hearings can be long and painful, but after surviving a broken ankle and individual meetings with 89 different U.S. Senators in the past few weeks, you are certainly battle-tested. At the nomination hearing for Judge Ruth Bader Ginsburg in 1993, my friend Senator Paul Simon of Illinois asked the following question: ``You face a much harsher judge . . . than this Committee and that is the judgment of history. And that judgment is likely to revolve around the question: Did she restrict freedom or did she expand it? '' I asked this question with respect to the nominations of Chief Justice Roberts and, Justice Alito, and I think it is an important question of any court nominee, particularly to the Supreme Court. The nine men and women on the Supreme Court serve lifetime appointments, and they resolve many of our most significant issues. It is the Supreme Court that defines our personal right to privacy and decides the restrictions to be placed on the most personal aspects of our lives. The Court decides the rights of the victims of discrimination, immigrants, consumers. The nine Justices decide whether Congress has the authority to pass laws to protect our civil rights and our environment. They decide what checks will exist on the executive branch in war and in peace. Because these issues are so important, we need Justices with intelligence, knowledge of the law, the proper judicial temperament, and a commitment to impartial justice. More than that, we need our Supreme Court Justices to have an understanding of the real world and the impact their decisions will have on everyday people. We need Justices whose wisdom---- [Protestor outburst.]
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. The officer will remove the person. The officer will remove the person. As I have said before, and both Senator Sessions and I have said, you are guests of the Senate while you are here. Everybody is a guest of the Senate. Judge Sotomayor deserves the respect of being heard. The Senators deserve the respect of being heard. No outburst will be allowed that might interrupt the ability of the Senators or of the judge or, I might say, of our guests who are sitting here patiently listening to everything that is being said. I thank the Capitol Police for responding as quickly and as rapidly and as professionally as they always do. I apologize to Senator Durbin for the interruption, and I yield back to him.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you, Mr. Chairman.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you, Mr. Chairman. More than that, we need our Supreme Court Justices to have an understanding of the real world and the impact their decisions have on everyday people. We need Justices whose wisdom comes from life, not just from law books. Sadly, this important quality seems to be in short supply. The current Supreme Court has issued many decisions that I think represent a triumph of ideology over common sense. When Chief Justice Roberts came before this Committee in 2005, he famously said a Supreme Court Justice is like an umpire calling balls and strikes. We have observed, unfortunately, that it is a little hard to see home plate from right field. If being a Supreme Court Justice were as easy as calling balls and strikes, we wouldn't see many 5-4 decisions in the Court. But in the last year alone, 23 of the Supreme Court's 74 decisions were decided by a 5-4 vote. The recent decision of Ledbetter v. Goodyear Tire and Rubber is a classic example of the Supreme Court putting activism over common sense. The question in that case was simply, fundamental: Should women be paid the same as men for the same work? Lilly Ledbetter was a manager at a Goodyear Tire plant in Alabama, worked there for 19 years, did not learn until she was about to retire that her male colleagues in the same job were paid more. She brought a discrimination lawsuit. The jury awarded her a verdict. The Supreme Court in a 5-4 decision reversed it and threw out the verdict. The basis for it? They said Lilly Ledbetter filed her discrimination complaint too late. They said her complaint should have been filed within 180 days of the first discriminatory paycheck. That decision defied common sense in the realities of a workplace where few employees know what their fellow employees are being paid. It contradicted decades of past precedent. In the case Safford Unified School District v. Redding, a 13-year-old girl was strip-searched at her school because of a false rumor that she was hiding ibuprofen pills. At the oral argument in April several of the Supreme Court Justices asked questions about the case that, unfortunately, revealed a stunning lack of empathy about the eighth-grade victim. One of the Justices even suggested that being strip-searched was no different than changing clothes for gym class. Although Justice Ruth Bader Ginsburg helped her eight male colleagues understand why the strip-search of a 13-year-old girl was humiliating enough to violate her constitutional rights, a majority of the Justices ruled that the school officials were immune from liability. In a 5-4 case in 2007, Gonzales v. Carhart, the Supreme Court again overturned past precedent and ruled for the first time it was permissible to place restrictions on abortion that do not include an exception regarding a woman's health. Judge Sotomayor, you have overcome many obstacles in your life that have given you an understanding of the daily realities and struggles faced by everyday people. You grew up in a housing complex in the Bronx. You overcame a diagnosis of juvenile diabetes at age 8 and the death of your father at age 9. Your mother worked two jobs so she could afford to send you and your brothers to Catholic schools, and you earned scholarships to Princeton and Yale. I know how proud you are of your mom and your family. Your first job out of law school was as assistant district attorney where you prosecuted violent crime. You went on to work in a law firm representing corporations, which gave you another valuable perspective. In 17 years as a Federal judge, you have demonstrated an ability to see both sides of the issues. You earned a reputation as being restrained and moderate and neutral. Of the 110 individuals who have served as Supreme Court Justices throughout our Nation's history, 106 have been white males. Until Thurgood Marshall's appointment to the Supreme Court a generation ago, every Justice throughout our Nation's history had been a white male. President Obama's nomination of you to serve as the first Hispanic and the third woman on the Supreme Court is historic. The President knows and we know that to be the first you have to meet a higher standard. Before you can serve on this Court, the American people, through their elected Senators, will be asked to judge you. We owe it to you and the Constitution to be a fair jury. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much, and, Judge, thank you. Enjoy your lunch. We will look forward to coming back. And when you come back, we will hear from Senator Klobuchar, Senator Kaufman, Senator Specter, Senator Franken, and I welcome Senator Franken to the Committee. And we will then have an introduction of you, and what everybody has really been waiting to hear, we will hear from you. So thank you very, very much, Judge. [Whereupon, at 12:38 p.m., the Committee recessed, to reconvene at 2:00 p.m., this same day.] Chairman Leahy. Thank you. If we could get back order in the room. It's good to have you back here. As I recall, we left at
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. You're next, and I will yield to Senator Klobuchar.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Thank you very much, Mr. Chair. Welcome back, Judge. It's a pleasure to see you again. I enjoyed our conversation. And what I most remembered about that, is that you confessed to me that you once brought a winter parka to Minnesota in June. [Laughter]. Senator Klobuchar. And I promise I will not hold that against you during this week. I know you have many friends and family here, but it was really an honor for me to meet your mom. When President Obama first announced your nomination, I loved the story about how your mom saved all of her money to buy you and your brother the first set of encyclopedias in the neighborhood, and it reminded me of when my own parents brought us Encyclopedia Brittannicas. It always held this hallowed place in the hallway, and for me they were a window on the world and a gateway to knowledge, which they clearly were to you as well. From the time you were nine years old, your mom raised you and your brother on her own. She struggled to buy those encyclopedias on her nurse's salary, but she did it because she believed deeply in the value of education. You went on to be the valedictorian of your high school class and to be tops in your class in college, and go to law school. After that, and this is an experience that we have in common, you became a local prosecutor. Most of my questions during this hearing will be about opinions you've authored and work that you've done in the criminal area. I believe having judges with real-world front-line experience as prosecutors is a good thing. When I think about the inspiring journey of your life I'm reminded of other Supreme Court Justices who came from, in your own words, ``modest and challenging circumstances''. There is Justice O'Connor, who lived the first years of her life in a ranch in Arizona with no running water and no electricity. By sheer necessity, she learned how to mend fences, ride horses, brand cattle, shoot a rifle, and even drive a truck, all before she was 13 years old. I also think about Justice Thurgood Marshall, who was the great-grandson of a slave. His mother was a teacher, while his father worked as a Pullman car waiter before becoming a steward at an all-white country club. Justice Marshall waited tables to put himself through law school and his mom actually pawned her wedding and engagement rings to get the down payment to send him to Howard University Law School here in Washington. And then there's Justice Blackman, who grew up in a St. Paul working-class neighborhood in my home State of Minnesota. He was able to attend Harvard College only because at the last minute the Harvard Club of Minnesota got him a scholarship, and then he went on to Harvard where he worked as a tutor and a janitor. Through four years of college and three years of law school, his family was never able to scrape up enough money to bring him back to Minnesota for Christmas. Each of these very different Justices grew up in challenging circumstances. No one can doubt that for each of these Justices, their life experiences shaped their work and they did--that they did on the Supreme Court. This should be unremarkable and, in fact, it's completely appropriate. After all, our own Committee members demonstrate the value that comes from members who have different backgrounds and perspectives. For instance, at the same time my accomplished colleague Senator Whitehouse, son of a renowned diplomat, was growing up in Saigon during the Vietnam War, I was working as a car hop at the A&W Rootbeer stand in suburban Minnesota. And while Senator Hatch is a famed gospel music songwriter, Senator Leahy is such a devoted fan of the Grateful Dead that he once had trouble taking a call from the President of the United States because the Chairman was on stage with the Grateful Dead. [Laughter]. Senator Klobuchar. We have been tremendously blessed on this Committee with the gift of having members with different backgrounds and different experiences, just as different experiences are a gift for any court in this land. So when one of my colleagues questioned whether you, Judge, would be a Justice for all of us or just for some of us, I couldn't help but remember something that Hubert Humphrey once said. He said, ``America is all the richer for the many different and distinctive strands of which it is woven.'' Along those lines, Judge, you are only the third woman in history to come before this Committee as a Supreme Court nominee, and as you can see there are currently only two women on this Committee, Senator Feinstein and myself. So I think it's worth remembering that when Justice O'Connor graduated from law school, the only offer she got from law firms were for legal secretary positions. Justice O'Connor, who graduated third in her class from Stanford Law School, saw her accomplishments reduced to one question: can she type? Justice Ginsberg faced similar obstacles. When she entered Harvard Law School, she was one of only nine women in a class of more than 500. One professor actually demanded that she justify why she deserved a seat that could have gone to a man. Later, she was passed over for a prestigious clerkship, despite impressive credentials. Nevertheless, both of them persevered, and they certainly prevailed. Their undeniable merits triumphed over those who sought to deny them opportunity. The women who came before you to be considered by this Committee helped blaze a trail, and although your record stands on your own, you also stand on their shoulders, another woman with an opportunity to be a Justice for all of us. As Justice Ginsburg's recent comments regarding the strip search of a 13-year-old girl indicate, as well as her dissent in the Lilly Ledbetter Equal Pay case, being a Justice for all of us may mean bringing some real-world practical experience into the courthouse. As we consider your nomination, we know that you are more than a sum of your professional experiences. Still, you bring one of the most wide-ranging legal resumes to this position: local prosecutor, civil litigator, trial judge, and appellate judge. Straight out of law school, you went to work as a prosecutor in the Manhattan D.A.'s office and you ended up staying there for five years. When you're a prosecutor, the law ceases to be an abstract subject. It's not just a dusty book in the basement. It's real and it has an impact on real people's lives, whether it's victims and their families, defendants and their families, or the neighborhood where you live. It also has a big impact on the individual prosecutor. You never forget the big and difficult cases. I know in your case, one of those is the serial burglar-turned-murderer, the Tarzan murder case. In my case, it was a little girl named Taisha Edwards, an 11-year-old girl shot by stray gang fire as she sat at her kitchen table doing her homework. As a prosecutor, you don't just have to know the law, you also have to know people. So, Judge, I'm interested in talking to you more about what you've learned from that job and how that job shaped your legal career and your approach to judging. I'm also interested in learning more about your views on criminal law issues. I want to explore your views on the Fourth Amendment, the confrontation clause, and sentencing law and policy. I'd like to know, in criminal cases as well as in civil cases, how you would balance the text of statutes and the Constitution and the practical things you see out there in the world. It seems to me in cases like Falso, Santa, and Howard that you have a keen understanding of the real-world implications of your decisions. I often get concerned that those pragmatic experiences are missing in judicial decision-making, especially when I look at the recent Supreme Court case in which the majority broadly interpreted the confrontation clause to include crime lab workers. I agree with the four dissenting Justices that the ruling has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence. Your old boss, Manhattan District Attorney Robert Morgenthau, called you a fearless and effective prosecutor. This is how he put it once in an interview: ``We want people with good judgment because a lot of the job of a prosecutor is making decisions. I also want to see some signs of humility in anybody that I hire. We're giving young lawyers a lot of power and we want to make sure that they're going to use that power with good sense and without arrogance.'' These are among the very qualities I'm looking for in a Supreme Court Justice. I, too, am looking for a person with good judgment, someone with intellectual curiosity and independence, but who also understands that her judicial decisions affect real people. With that, I think, comes the second essential quality: humility. I'm looking for a Justice who appreciates the awesome responsibility that she will be given, if confirmed, a Justice who understands the gravity of the office and who respects the very different roles that the Constitution provides for each of the three branches of government. Finally, a good prosecutor knows that her job is to enforce the law without fear or favor; likewise, a Supreme Court Justice must interpret the law without fear or favor. And I believe your background and experiences, including your understanding of front-line law enforcement, will help you to always remember that the cases you hear involve real people with real problems who are looking for real remedies. With excellent justice and excellent judgment, and a sense of humility, I believe you can be a Justice for all of us. Thank you very much.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator Klobuchar. Next, Senator Kaufman.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Thank you, Mr. Chairman. Welcome, Judge Sotomayor, and welcome to your family and friends. Congratulations on your nomination, and congratulations to your parents, who did such a good job on raising you to get to where you are today. We are beginning--now beginning the end of an extraordinarily important process, to confirm a Supreme Court Justice of the United States. Short of voting to go to war, the Senate's constitutional obligation to advise and consent on Supreme Court nominees is probably our most important responsibility. Supreme Court Justices serve for life, and once the Senate confirms a nominee she is likely to be affecting the law and American lives much longer than many of the Senators who are here to confirm her. The advise-and-consent process for the nomination began after Justice Souter announced his intent to resign and President Obama consulted with members of both parties before making his selection. It has continued since then with the help from extensive public debate among analysts and commentators, scholars and activists, both in the traditional press and in the blogosphere. This public vetting process, while not always accurate or temperate, is extremely valuable both to the Senate and to the public. One of the truly great benefits of a free society is our ability to delve deeply into an extensive public record. We have seen a wide-ranging discussion of the issues in which anyone--literally anyone--can help dissect and debate even the most minute legal issue and personal expressions of opinion. In another less public part of the process, Judge, you had the wonderful experience of meeting with 90 Senators, over 90 percent--almost 90 percent of the Senate. These meetings are also extremely useful. I know I learned a great deal from my meeting and I'm confident my colleagues did as well. For me, the critical criteria for judging a Supreme Court nominee are the following: a first-rate intellect; significant experience; unquestioned integrity; absolute commitment to the rule of law; unwavering dedication to being fair and open- minded; the ability to appreciate the impact of court decisions on the lives of ordinary people. Based on what we've learned so far, you are truly an impressive nominee. I'm confident this hearing will give this Committee, and the rest of the Senate, the information we need to complete our constitutional duty. As Senators, I believe we each owe you a decision based on your record and your answers to our questions. That decision should not turn on empty code words like ``judicial activist'', or on charges of guilt by association, or on any litmus test. Instead, we should focus on your record and your responses and determine whether you have the qualities that will enable you to well serve all Americans and the rule of law on our Nation's highest court. As my colleagues have already noted, your rise from humble beginnings to extraordinary academic and legal achievement is an inspiration to us all. I note that you would bring more Federal judicial experience to the Supreme Court than any Justice in over 100 years. You also have incredibly valuable practice experience not only as a prosecutor, but also a commercial litigator. In terms of your judicial record, you appear to have been careful, thoughtful, and open-minded. In fact, what strikes me most about your record is that it seems to reveal no biases. You appear to take each case as it comes, without predilection, giving full consideration to the arguments of both sides before reaching a decision. When Justice Souter announced his retirement in May, I suggested the court would benefit from a broader range of experience among its members. My concern at the time wasn't the relative lack of women, or racial, or ethnic minorities on our court, although that deficit is glaring. I was pointing to the fact that most of the current Justices, whether they be black or white, women or men, share roughly the same life experiences. I am heartened by what you bring to the court based on your upbringing, your story of achievement in the face of adversity, your professional experience as a prosecutor and commercial litigator, and yes, the prospect of your being the first Latina to sit on the high court. Though the Supreme Court is not a representative body, we should hold as an ideal that it broadly reflect the citizens it serves. Diversity shares many goals. Outside the courtroom, it better equips our institutions to understand more of the viewpoints and backgrounds that comprise our pluralistic society. Moreover, a growing body of social research suggests that groups with diverse experience and backgrounds come to the right outcome more often than do non-diverse groups which may be just as talented. I believe a diverse court will function better as well. Another concern I have about the current Supreme Court is its handling of business cases. Too often it seems they disregard settled law and congressional policy choices. Based on my education, my experience and my inclination, I am not anti-business, but whether it is preempting State consumer protection laws, striking down punitive damage awards, restricting access to the courts, or overturning 96 years of pro-consumer antitrust law, today's court gives me the impression that in business cases the working majority is outcome-oriented and therefore too one-sided. Given our current economic crisis and the failures of regulation and enforcement that led to that crisis, that bias is particularly troubling. Congress can, and will, enact a dramatically improved regulatory system. The President can, and will, make sure that relevant enforcement agencies are populated with smart, motivated, and effective agents. But a Supreme Court, resistant to Federal Government involvement in the regulation of markets, could undermine those efforts. A judge or a court has to call the game the same way for all sides. Fundamental fairness requires that, in the courtroom, everyone comes to the plate with the same count of no balls and no strikes. One of the aspirations of the American judicial system is that it is a place where the powerless have a chance for justice on a level playing field with the powerful. We need Justices on the Supreme Court who not only understand that aspiration, but also are committed to making it a reality. Because of the importance of businesses cases before the Supreme Court, I plan to spend some time asking you about your experience as a commercial litigator, your handling of business cases as a trial judge and on the Court of Appeals, and your approach to business cases generally. From what I've seen of your record, you seem to recall these cases right down the middle without any bias or agenda. That is very important to me. Very soon, those of us up here will be done talking and you will have the chance to testify and answer our questions. I look forward to your testimony. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Thank you very much, Mr. Kaufman. Another former Chairman of this Committee, Senator Specter. I yield to you.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Thank you, Mr. Chairman. I join my colleagues, Judge Sotomayor, in welcoming you and your family here. I compliment the President for nominating an Hispanic woman. I think it was wrong for America to wait until 1967 to have an African-American, Justice Thurgood Marshall, on the court, waited too long, until 1981, to have the first woman, Justice Sandra Day O'Connor. I think, as a diverse Nation, diversity is very, very important. You bring excellent credentials academically, professionally, your service on the court. The Constitution requires the process for this Committee, and then the full Senate, to consider in detail your qualifications under our consent function. Most of the questions which will be asked of you in the course of these hearings will involve decided cases. I intend to ask about decided cases, but also about cases that the Supreme Court decided not to decide and on the rejection of cases for decision. It's a big problem. The court, I would suggest, has time for more cases. Chief Justice Roberts noted in his confirmation hearing that the decision in more cases would be very helpful. If you contrast the docket of the Supreme Court in 1886 with currently, in 1886 there were 1,396 on the docket, 451 were decided. A century later, there were only 161 signed opinions; in 2007, there were only 67 signed opinions. I start on the cases which are not decided, although I could start in many, many areas. I could start with the Circuit splits, where one Court of Appeals in one section of the country goes one way, another Court of Appeals goes the other way. The rest of the courts don't know which way the precedents are, and the Supreme Court decides not to decide. But take the case of the Terrorist Surveillance Program, which was President Bush's secret warrantless wire taps, and contrast it with congressional authority exercised under Article I on the Foreign Intelligence Surveillance Act, providing the exclusive way to have wire taps, perhaps the sharpest conflict in the history of this great country on the Article I powers of Congress and the Article II powers of the President as Commander-in-Chief. The Federal District Court in Detroit said that the Terrorist Surveillance Program was unconstitutional. The Sixth Circuit decided 2:1 that the plaintiffs did not have standing. I thought the dissenting opinion was much stronger than the majority opinion. Standing, as we all know, is a very flexible doctrine, and candidly, at least as I see it, used frequently by the court to avoid deciding a case. Then the Supreme Court of the United States denied certiorari and decided not to hear the case, didn't even decide whether the lack of standing was a justifiable basis. This has led to great confusion in the law. And it's as current as this morning's newspapers reporting about other secret programs which apparently the President had in operation. Had the Supreme Court of the United States taken up the Terrorist Surveillance Program, the court could have ruled on whether it was appropriate for the President not to notify the Chairman of the Judiciary Committee about the program. We have a law which says all members of the Intelligence Committees are to be notified. Well, the President didn't follow that law. Did he have the right to do so under Article II powers? Well, we don't know. Or within the last two weeks, the Supreme Court denied hearing a case involving claims by families of victims of 9/11 against Saudi Arabia and Saudi Arabia commissions, and for princes in Saudi Arabia. The Congress decided what sovereign immunity was in legislation in 1976 and had exclusions for torts, but the Supreme Court denied an opportunity for those families who had suffered grievously from having their day in court. One of the questions, when my opportunity arises, will be to ask you what would be the standards that you would employ in deciding what cases the Supreme Court would hear. There is currently a major matter at issue on the Voting Rights Act, and the conflict has been present for many years, between the authority of Congress to decide what is the factual basis for legislation, a standard which Justice Harlan decided in the Wirtz case was a rational basis. The Supreme Court, more recently, has adopted a standard of congruently--congruence and proportionality, a standard which Justice Scalia has said is a ``flabby test'' which invites judicial lawmaking. You'll hear a lot about--in this hearing about a judge's responsibility to interpret the law and the statutes and not to make laws. And during the confirmation hearing of Chief Justice Roberts, he said in pretty plain terms that the court ought to allow the Congress to decide what the factual basis is, and for the court to do otherwise is to engage in judicial legislation. The Voting Rights case was decided on narrow grounds, but it certainly looks, if you read the record, that the court is about ready to upset the Voting Rights case just like it did in Alabama v. Garrett on the Americans With Disabilities Act, notwithstanding a vast record establishing the basis. So I would like to know what your standard will be, if confirmed, a rational basis which had been the traditional standard, or congruence and proportionality? If you tell me congruence and proportionality, then I'll ask you what it means because it slips and slides around so much that it's impossible to tell what a constitutional standard is. We Senators would like to know what the standards are so we know what to do when we undertake legislation. Your decision on the District--on the Circuit Court, in a case captioned Entergy Corporation v. Riverkeeper, Inc. involving the Environmental Protection Agency and the Clean Water Act, has a special prominence now that we are debating climate control and global warming. In the Second Circuit opinion, you were in the majority, deciding that it was the ``best technology''. The Supreme Court reversed, 5:4, saying that it turned on a ``cost-benefit analysis''. It, I think, is worthy of exploration, although what you answer, obviously, is a matter of your discretion as to whether, on a 5:4 decision--it's hard to say who's really right, the 5 or the 4, as a matter of interpreting the Constitution or the statute. Having a different view, I'd be interested to know if you'd care to respond, when the time comes, as to whether you'd be with what had been the minority, and perhaps a voice as strong as yours in the conference room would produce a different result. It could have a real impact on what we're legislating now on cap and trade. With the few seconds I have left, I'd like to preview some questions on televising the court. I don't know why there's so much interest here today. I haven't counted this many cameras since Justice Alito was sitting where you're sitting. You've had experience in the District Court with television. You're replacing Justice Souter, who said that if TV cameras were to come to court they'd have to roll over his dead body. If you're confirmed, they won't have to roll over his dead body. [Laughter]. Senator Specter. But the court decides all the cutting-edge questions of the day. The Senate is televised, the House is televised. A lot of people are fascinated by this hearing. I'd like to see the court televised; you can guess that. Thank you very much, Judge Sotomayor. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator Specter. I understand, the next statement will be by Senator Franken, and then we'll call forward the two people who are going to introduce you, and you, then, Judge, have a chance to say something. Senator Franken has been waiting patiently all day, and I appreciate having you here. Please go ahead.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Thank you, Mr. Chairman. It's an incredible honor to be here, less than week into my term as a United States Senator. My first major responsibility is here at this historic confirmation hearing. I am truly humbled to join the Judiciary Committee, which has played, and will continue to play, such an important role in overseeing our Nation's system of justice. Chairman Leahy, for several years now, I have admired your strength and integrity in leading this Committee. I am grateful for your warm welcome and the consideration that you've given me, sir, and I am honored to serve alongside of you. Ranking Member Sessions, I want you to know that I plan to follow the example of my good friend and predecessor, Paul Wellstone, who was willing and ready to partner with his colleagues across the aisle to do the work of the American people. I look forward to working over the years with you and my other Republican colleagues in the Senate to improve the lives of all Americans. To all the members of this Committee, I know that I have a lot to learn from each of you. Like so many private citizens, I have watched at least part of each and every Supreme Court confirmation hearing since they've been televised. And I would note that this is the first confirmation hearing that Senator Kennedy has not attended since 1965. [Interruption from the audience.]
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. The Senate will suspend. Officers, please remove whoever is causing the disturbance. Again, as Senator Sessions and I have said, this is a meeting of the United States Senate. We'll show respect to everybody who is here. [Interruption from the audience.] Chairman Leahy. We'll show respect to everybody here, and certainly to Judge Sotomayor, to the Senators on both sides of the aisle, and we will have order in this room.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you, Senator Leahy.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Senator Franken, please continue.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Thank you, Mr. Chairman. What I was saying was, this is the first hearing since 1965 that Senator Kennedy has not been present, and I know he's off the Committee now, but we do miss his presence. These televised hearings over the years have taught Americans a lot about our Constitution and the role that the courts play in upholding and defending it. I look forward to listening to all of your questions and the issues that you and your constituents care about. To Judge Sotomayor, welcome. Over the next few days I expect to learn from you as well. As has been said, you're the most experienced nominee to the Supreme Court in 100 years. After meeting you in my office last week, I know that you're not just an outstanding jurist, but an exceptional individual. And as others have said, your story is inspirational and one which all Americans should take great pride in, and I welcome your family as well. As most of you know, this is my fifth day in office. That may mean I'm the most junior Senator, but it also means that I am the Senator who most recently took the oath of office. Last Tuesday, I swore to support and defend the Constitution of the United States and to bear true faith and allegiance to it. I take this oath very seriously as we consider your nomination, Judge Sotomayor. I may not be a lawyer, but neither are the overwhelming majority of Americans. Yet all of us, regardless of our backgrounds and professions, have a huge stake in who sits on the Supreme Court, and we are profoundly affected by its decisions. I hope to use my time over the next few days to raise issues that concern the people of Minnesota, and the people of this Nation. This hearing will helps folks sitting in living rooms and offices in Winona, Duluth, and the Twin Cities to get a better idea of what the court is, what it does, and what it's supposed to do, and most importantly, how it affects the everyday lives of all Americans. Justice Souter, whom you will replace if you are confirmed, once said, ``The first lesson, simple as it is, is that whatever court we're in, whatever we're doing, at the end of our task some human being is going to be affected, some human life is going to be changed by what we do, and so we had better use every power of our minds and our hearts and our beings to get those rulings right.'' I believe Justice Souter had it right. In the past months, I have spent a lot of time thinking about the court's impact on the lives of Americans, and reading and consulting with some of Minnesota's top legal minds. And I believe that the rights of Americans as citizens and voters are facing challenges on two separate fronts. First, I believe that the position of the Congress, with respect to the courts and the executive, is in jeopardy. Even before I aspired to represent the people of Minnesota in the United States Senate, I believed that the framers made Congress the first branch of government for a reason. It answers most directly to the people and has the legitimacy to speak for the people in crafting laws to be carried out by the executive branch. I am wary of judicial activism and I believe in judicial restraint. Except under the most exceptional circumstances, the judicial branch is designed to show deep deference to the Congress and not make policy by itself. Yet, looking at recent decisions on voting rights, campaign finance reform, and a number of other topics, it appears that appropriate deference may not have been shown in the past few years and there are ominous signs that judicial activism is on the rise in these areas. I agree with Senator Feingold and with Senator Whitehouse. We hear a lot about judicial activism when politicians are running for office and when they talk about what kind of judge they want on the Supreme Court, but it seems that their definition of an activist judge is one who votes differently than they would like. For example, during the Rehnquist court, Justice Clarence Thomas voted to overturn Federal laws more than Justice Stevens and Justice Breyer combined. Second, I am concerned that Americans are facing new barriers to defending their individual rights. The Supreme Court is the last court in the land where an individual is promised a level playing field and can seek to right a wrong: it is the last place an employee can go if he or she is discriminated against because of age, or gender, or color; it is the last place a small business owner can go to ensure free and fair competition in the market; it is the last place an investor can go to try to recover losses from security fraud; it is the last place a person can go to protect the free flow of information on the Internet; it is the last place a citizen can go to protect his or her vote; it is the last place where a woman can go to protect her reproductive health and rights. Yet, from what I see on each of those fronts, for each of those rights, the past decade has made it a little bit harder for American citizens to defend themselves. As I said before, Judge, I'm here to learn from you. I want to learn what you think is the proper relationship between Congress and the courts, between Congress and the executive, I want to learn how you go about weighing the rights of the individual, the small consumer or business owner and more powerful interests, and I want to hear your views on judicial restraint and activism in the context of important issues like voting rights, open access to the Internet, and campaign finance reform. We're going to have a lot more time together, so I'm just going to start listening. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very, very much, Senator Franken. What we're going to do, we're going to move a couple of chairs. Just stay there, please, Judge. We're going to have two people who will speak, each for five minutes, to introduce you. I will then administer the oath of the Committee to you. [Laughter]. Chairman Leahy. How about that? I'll administer the oath before the Committee and then we will hear your testimony. So, going as we do by seniority, Senator Schumer, you are recognized for five minutes, and then Senator Gillibrand, you are recognized for five minutes.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Thank you, Mr. Chairman. Today is a great national opportunity. It's an opportunity to recognize that the nomination of one of the most qualified candidates to the Supreme Court in American history could not have happened anywhere else in the world. Judge Sotomayor's story is a great American story and, I might add, a great New York story as well. Consider this: in no other country in the world could a woman from a minority group who grew up in a working-class family have received an education at the best institutions, and having thrived there, gone on to be a judge, and now a nominee to the highest court in the land. This is because we don't have a caste system in this country, or even a class system. Two hundred fifty years ago, we threw away the centuries-old framework of gentry and nobility. We started fresh, with no ranks and no titles. Less than four score and seven years later, a farmer and self-taught lawyer from Illinois became, perhaps, our greatest President. And so the American story goes, and Judge Sonia Sotomayor from the Bronx, daughter of a single-parent practical nurse, has written her own chapter in it. Judge Sotomayor embodies what we all strive for as American citizens. Her life and her career are not about race, or class, or gender, although, as for all of us, these are important parts of who she is. Her story is about how race and class, at the end of the day, are not supposed to predetermine anything in America. What matters is hard work and education, and those things will pay off no matter who you are or where you have come from. It's exactly what each of us wants for ourselves and for our children, and this shared vision is why this moment is historic for all Americans. Judge Sotomayor was born to parents who moved to New York from Puerto Rico during World War II. Her father was a factory worker with a third grade education; he died when she was nine. Her mother worked and raised Sotomayor and her brother, Juan, now a doctor practicing in Syracuse, on her own. Sonia Sotomayor graduated first in her high school class at Cardinal Spellman High School in 1971. She has returned to Cardinal Spellman to speak there and to encourage future alumni to work hard, get an education, and pursue their dreams the same way she did. When Sonia Sotomayor was growing up, the Nancy Drew stories inspired her sense of adventure, developed her sense of justice, and showed her that women could, and should, be outspoken and bold. Now in 2009, there are many more role models for a young Cardinal Spellman student to choose from, with Judge Sotomayor foremost among them. Judge Sotomayor went on to employ her enormous talents at Princeton, where she graduated summa cum laude, and received the Pyne Prize, the highest honor bestowed on a Princeton student. This is an award that is given not just to the smartest student in the class, but to the most exceptionally smart student who has also given the most to her community. She graduated from Yale Law School, where she was a Law Review editor. And because we have such an extensive judicial record before us, I believe that these hearings will matter less than for the several previous nominees, or at the least that these hearings will bear out what is obvious about her, that she is modest and humble in her approach to judging. As we become even more familiar with her incisive mind and balanced views, I am certain that this hearing will prove to all what is already clear to many. This is a moment in which all Americans can take great pride, not just New Yorkers, not just Puerto Ricans, not just Hispanics, not just women, but all Americans who believe in opportunity and who want for themselves and their children a fair reading of the laws by a judge who understands that while we are a Nation of individuals, we are all governed by one law. Mr. Chairman, people felt at the founding of America that we were ``God's noble experiment.'' Judge Sotomayor's personal story shows that today, more than 200 years later, we are still God's noble experiment. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator Schumer. Now, Senator Gillibrand, the other Senator from New York. Please go ahead, Senator Gillibrand.
Senator Kirsten Gillibrand (NY)
Senator
(D)
Senator Gillibrand. Thank you, Chairman Leahy, Ranking Member Sessions, and the other distinguished members of the Judiciary Committee, for the privilege to speak on behalf of Judge Sonia Sotomayor. President Obama has chosen one of the country's outstanding legal minds with his nomination of Sonia Sotomayor to the United States Supreme Court. As a New Yorker, I take great pride in Judge Sotomayor's nomination, along with the rest of my State and our delegation, including Senator Schumer and my colleagues from the House, Congresswoman Nydia Velazquez, who was the first person to introduce me to Judge Sotomayor and her record, and Congressman Jose Serrano. As a woman, I take great pride in this historic nomination. In the words of Justice Sandra Day O'Connor, ``It took a very long time, about 171 years, to get the first woman on the Supreme Court,'' and I thought that we'd very likely always have two, and eventually more. I'm very thankful for President Obama in his recognition of the importance of women's voices on the Nation's highest court. Sonia Sotomayor's life and career are a study in excellence, commitment to learning, a dedication to the law, and the constant pursuit of the highest ideals of our country and Constitution. Her story is also the quintessential American and New York story: born to a Puerto Rican family, growing up in public housing in the South Bronx, and raised with a love of country and a deep appreciation for hard work. Judge Sotomayor demonstrated a devotion to learning, graduating summa cum laude from Princeton, and serving as an editor on the Yale Law Journal before pursuing her career in the law. The breadth and depth of Judge Sotomayor's experience make her uniquely qualified for the Supreme Court. Judge Sotomayor's keen understanding of case law and the importance of precedent is derived from working in nearly every aspect of our legal system: as a prosecutor, as a corporate litigator, as a trial judge, and as an appellate judge. As prosecutor, Judge Sotomayor fought the worst of society's ills, prosecuting a litany of crimes from murder, to child pornography, to drug trafficking. The Manhattan D.A., Bob Morgenthau, described her as ``fearless'' and ``an effective prosecutor'' and ``an able champion of the law''. Judge Sotomayor's years as a corporate litigator exposed her to all facets of commercial law, including real estate, employment, banking, contracts, and agency law. Judge Sotomayor was appointed to the U.S. District Court for the Southern District of New York by President George Herbert Walker Bush, presiding over roughly 450 cases and earning a reputation as a tough, fair-minded, and thoughtful jurist. She would replace Justice Souter as the only member on the Supreme Court with trial experience. At the appellate level, Judge Sotomayor has participated in over 3,000 panel decisions, offering roughly 400 published opinions, with only 7 being brought up to the Supreme Court, which reversed only 3 of those decisions, two of which were closely divided. With confirmation, Judge Sotomayor brings more Federal judicial experience to the Supreme Court than any Justice in 100 years, and more judicial experience than any Justice confirmed in the court in 70 years. As a testament to Judge Sotomayor, many independent national, legal, and law enforcement groups have already endorsed her nomination, including among them the ABA, voting unanimously and giving her the highest rating of ``Well Qualified'', complimenting not only her formidable intellect, but her mature legal mind and her record of deciding cases based on the precise facts and legal issues before her, also faithful in following the law as it exists, and that she has a healthy respect for the limited role of judges and the balance of powers for the executive and legislative branches. The President of the Fraternal Order of Police also stated, ``She's a model jurist: tough, fair-minded, and mindful of the constitutional protections afforded to all U.S. citizens.'' A nominee's experience as a legal advocate for civil rights certainly must not be seen as a disqualifying criteria for confirmation, but instead as the hallmark of an individual's commitment to our founding principles of equality, justice, and freedom. Like Ruth Bader Ginsburg's participation in the ACLU Women's Rights Project or Thurgood Marshall's participation on behalf of the NAACP Legal Defense and Education Fund, Judge Sotomayor's leadership role in the Puerto Rican Legal Defense Fund demonstrates her commitment to the Constitution, constitutional rights and core values of equality as being an inalienable right, an inalienable American right, and should not be ascribed based on gender or color. Judge Sotomayor's entire breadth of experience uniquely informs her ability to discern facts as she applies the law and follows precedent. Judge Sotomayor's commitment to the Constitution is unyielding. As she described her judicial philosophy, saying, ``I don't believe we should bend the Constitution under any circumstance. It says what it says; we should do honor to it.'' Judge Sotomayor's record on the Second Circuit demonstrates the paramount importance of this conviction. The importance of Sonia Sotomayor's professional and personal story cannot be understated. Many of our most esteemed justices have noted the importance of their own diverse backgrounds and life experiences in being an effective Justice. Like Judge Sotomayor, they also understand that their gender or ethnicity is not a determining factor in their judicial rulings, but another asset which they bring to the court, much like education, training, and previous legal work. Justice Anthony Scalia said, ``I am the product of the melting pot in New York, grew up with people of all religious and ethnic backgrounds. I have absolutely no racial prejudices, and I think I am probably at least as antagonistic as the average American, and probably much more so, towards racial discrimination.'' Justice Clarence Thomas said, ``My journey has been one that required me to at some point touch on virtually every aspect, every level of our country, from people who couldn't read and write to people who were extremely literate and--''
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Senator? Senator, we're going to have to put your full statement in the record so that Judge Sotomayor can be heard.
Senator Kirsten Gillibrand (NY)
Senator
(D)
Senator Gillibrand. May I conclude my remarks?
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. If it can be done in the next few seconds, Senator.
Senator Kirsten Gillibrand (NY)
Senator
(D)
Senator Gillibrand. One minute?
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Well, how about----
Senator Kirsten Gillibrand (NY)
Senator
(D)
Senator Gillibrand. Twenty seconds. I strongly support Judge Sotomayor's nomination and firmly believe her to be one of the finest jurists in American history.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Judge, now we will administer the oath. I'll let the two Senators step back if they'd like. Please raise your right hand. Do you swear that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth so help you God?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I do.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Please be seated. And I thank my two colleagues from New York for the introduction. I appreciate it because I know both have known you for some time. Judge, you've also introduced a number of members of your family. Now the floor is yours.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you, Mr. Chairman. I also want to thank Senators Schumer and Gillibrand for their kind introductions. In recent weeks, I have had the privilege and pleasure of meeting 89 Senators, including all of the members of this Committee. Each of you has been gracious to me, and I have so much enjoyed meeting you. Our meetings have given me an illuminating tour of the 50 States and invaluable insights into the American people. There are countless family members and friends who have done so much over the years to make this day possible. I am deeply appreciative for their love and support. I want to make one special note of thanks to my mother. I am here, as many of you have noted, because of her aspirations and sacrifices for both my brother Juan and me. I am very grateful to the President, and humbled to be here today as a nominee to the United States Supreme Court. The progression of my life has been uniquely American. My parents left Puerto Rico during World War II. I grew up in modest circumstances in a Bronx housing project. My father, a factory worker with a third grade education, passed away when I was nine years old. On her own, my mother raised my brother and me. She taught us that the key to success in America is a good education and she set the example, studying alongside my brother and me at our kitchen table so that she could become a registered nurse. We worked hard. I poured myself into my studies at Cardinal Spellman High School, earning scholarships to Princeton University and then Yale Law School, while my brother went on to medical school. Our achievements are due to the values that we learned as children and they have continued to guide my life's endeavors. I try to pass on this legacy by serving as a mentor and friend to my many godchildren and to students of all backgrounds. Over the past three decades, I have seen our judicial system from a number of different perspectives: as a big-city prosecutor, as a corporate litigator, as a trial judge, and as an appellate judge. My first job after law school was as an Assistant District Attorney in New York. There, I saw children exploited and abused. I felt the pain and suffering of families torn apart by the needless death of loved ones. I saw and learned the tough job law enforcement has in protecting the public. In my next legal job, I focused on commercial, instead of criminal, matters. I litigated issues on behalf of national and international businesses and advised them on matters ranging from contracts to trademarks. My career as an advocate ended and my career as a judge began when I was appointed by President George H.W. Bush to the United States District Court for the Southern District of New York. As a trial judge, I did decide over 450 cases and presided over dozens of trials, with perhaps my most famous case being the major league baseball strike in 1995. After six extraordinary years on the District Court, I was appointed by President Clinton to the United States Court of Appeals for the Second Circuit. On that court I have enjoyed the benefit of sharing ideas and perspectives with wonderful colleagues as we have worked together to resolve the issues before us. I have now served as an appellate judge for over a decade, deciding a wide range of constitutional, statutory, and other legal questions. Throughout my 17 years on the bench, I have witnessed the human consequences of my decisions. Those decisions have not been made to serve the interests of any one litigant, but always to serve the larger interests of impartial justice. In the past month, many Senators have asked me about my judicial philosophy. Simple: fidelity to the law. The task of a judge is not to make law, it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms, interpreting statutes according to their terms and Congress' intent, and hewing faithfully to precedents established by the Supreme Court and by my Circuit Court. In each case I have heard, I have applied the law to the facts at hand. The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then 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 judicial system. My personal and professional experiences help me to listen and understand, with the law always commanding the result in every case. Since President Obama announced my nomination in May, I have received letters from people all over this country. Many tell a unique story of hope in spite of struggles. Each letter has deeply touched me. Each reflects a dream, a belief in the dream that led my parents to come to New York all those years ago. It is our Constitution that makes that dream possible and I now seek the honor of upholding the Constitution as a Justice on the Supreme Court. Senators, I look forward, in the next few days, to answering your questions, to having the American people learn more about me, and to being part of a process that reflects the greatness of our Constitution and of our Nation. Thank you all.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Judge. I thank all Senators for their opening statements this morning. I thank Senator Schumer and Senator Gillibrand for their introduction of you, but especially, Judge Sotomayor, I thank you for your statement. I look at the faces of your family; they appreciate it. We all do. We will stand in recess until 9:30 tomorrow morning. Thank you very, very much. [Whereupon, at 3:04 p.m., the Committee was adjourned, to reconvene at 9:30 a.m., Tuesday, July 14, 2009.] CONTINUATION OF THE NOMINATION OF HON. SONIA SOTOMAYOR, TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES ---------- 40008 U.S. Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 9:29 a.m., in room SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and Coburn. Chairman Leahy. Good morning, everybody. Just so we can understand what is going on, I am not sure whether we have votes or not today. If we do have votes, to the extent that we can keep the hearing going during votes and have different Senators leave between them, we will. If we can't, then I will recess for those votes. With the way the traffic was today, I think some people are still having trouble getting in here. I have talked with Senator Sessions about this, and what we are going to do is have 30-minute rounds. We will go back and forth between sides, and Senators will be recognized based on seniority if they are there. If not, then we will go to the next person. And with that, as I said yesterday when we concluded, the American people finally have heard from Judge Sotomayor, and I appreciate your opening statement yesterday. You have had weeks of silence. You have followed the traditional way of nominees. I think you have visited more Senators than any nominee I know of for just about any position, but we get used to the tradition of the press is outside, questions are asked, you give a nice wave, and keep going. But finally you are able to speak, and I think your statement yesterday went a long way to answering the critics and the naysayers. And so we are going to start with the questions here. I would hope that everybody will keep their questions pertaining to you and to your background as a judge. You are going to be the first Supreme Court nominee in more than 50 years who served as a Federal trial court judge, the first in 50 years to have served as both a Federal trial court judge and a Federal appellate court judge. Let me ask you the obvious one. What are the qualities that a judge should possess? You have had time on both the trial court and the appellate court. What qualities should a judge have, and how has that experience you have had, how does that shape your approach to being on the bench?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator Leahy, yesterday many of the Senators emphasized their--the values they thought were important for judging, and central to many of their comments was the fact that a judge had to come to the process understanding the importance and respect the Constitution must receive in the judging process and an understanding that that respect is guided by and should be guided by a full appreciation of the limited jurisdiction of the Court in our system of Government, but understanding its importance as well. That is the central part of judging. What my experience on the trial court and the appellate court have reinforced for me is that the process of judging is a process of keeping an open mind. It's the process of not coming to a decision with a prejudgment ever of an outcome, and that reaching a conclusion has to start with understanding what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, the record as they create it, and then making a decision that is limited to what the law says on the facts before the judge.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Let us go into some of the particulars. One of the things that I found appealing in your record is that you were a prosecutor, as many of us--both the Ranking Member and I had the privilege--and you worked on the front lines as assistant district attorney in the Manhattan DA's office. Your former boss, District Attorney Robert Morgenthau, the dean of the American prosecutors, said one of the most important cases you worked on was the prosecution of the man known as ``the Tarzan burglar.'' He terrorized people in Harlem. He would swing on ropes into their apartments and rob them and steal and actually killed three people. Your co-counsel, Hugh Mo, described how you threw yourself into every aspect of the investigation and the prosecution of the case. You helped to secure a conviction, a sentence of 62 years to life for the murders. Your co-counsel described you as ``a skilled legal practitioner who not only ruthlessly pursued justice for victims of violent crimes, but understood the root causes of crime and how to curb it.'' Did that experience shape your views in any way, as a lawyer and also as a judge? This case was getting into about as nitty-gritty as you could into the whole area of criminal law.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I became a lawyer in the prosecutor's office. To this day, I owe who I have become as--who I became as a lawyer and who I have become as judge to Mr. Morgenthau. He gave me a privilege and honor in working in his office that has shaped my life. When I say I became a lawyer in his office, it's because in law school, law schools teach you in hypotheticals. They set forth facts for you. They give you a little bit of teaching on how those facts are developed, but not a whole lot. And then they ask you to opine about legal theory and apply legal theory to the facts before you. Well, when you work in a prosecutor's office, you understand that the law is not legal theory. It's facts. It's what witnesses say and don't say. It's how you develop your position in the record. And then it's taking those facts and making arguments based on the law as it exists. That's what I took with me as a trial judge. It's what I take with me as an appellate judge. It is respect that each case gets decided case by case, applying the law as it exists to the facts before you. You asked me a second question about the Tarzan murderer case, and that case brought to life for me, in a way that perhaps no other case had fully done before, the tragic consequences of needless death. In that case, Mr. Maddicks was dubbed ``the Tarzan murderer'' by the press because he used acrobatic feats to gain entry into apartments. In one case, he took a rope, placed it on a pipe on top of a roof, put a paint can at the other end, and threw it into a window in a building below, and broke the window. He then swung himself into the apartment and on the other side shot a person he found. He did that repeatedly, and as a result, he destroyed families. I saw a family that had been intact with a mother living with three of her children, some grandchildren. They all worked at various jobs. Some were going to school. They stood as they watched one of their--the mother stood as she watched one of her children be struck by a bullet that Mr. Maddicks fired and killed him because the bullet struck the middle of his head. That family was destroyed. They scattered to the four winds, and only one brother remained in New York who could testify. That case taught me that prosecutors, as all participants in the justice system, must be sensitive to the price that crime imposes on our entire society. At the same time, as a prosecutor in that case, I had to consider how to ensure that the presentation of that case would be fully understood by jurors, and to do that it was important for us as prosecutors to be able to present those number of incidences that Mr. Maddicks had engaged in, in one trial so the full extent of his conduct could be determined by a jury. There had never been a case quite like that where an individual who used different acrobatic feats to gain entry into an apartment was tried with all of his crimes in one indictment. I researched very carefully the law and found a theory in New York law, called the ``Molineaux theory'' then, that basically said if you can show a pattern that established a person's identity or assisted in establishing a person's identity--I'm simplifying the argument, by the way--then you can try different cases together. This was not a conspiracy under law because Mr. Maddicks acted alone, so I had to find a different theory to bring all his acts together. Well, I presented that to the trial judge. It was a different application of the law. But what I did was draw on the principles of the Molineaux theory, and arguing those principles to the judge, the judge permitted that joint trial of all of Mr. Maddicks' activities. In the end, carefully developing the facts in the case, making my record--our record, I should say--Mr. Mo's and my record complete, we convinced the judge that our theory was supported by law. That harkens back to my earlier answer, which is that's what being a trial judge teaches you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. So you see it from both ends, having obviously a novel theory as a prosecutor--a theory that is now well established in the law--but was novel at that time, and as a trial judge, you have seen novel theories brought in by prosecutors or by defense, and you have to make your decisions based on those theories. The fairly easy answer to that is you do see it from both ends, do you not?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, it's important to remember that as a judge, I don't make law, and so the task for me as a judge is not to accept or not accept new theories. It's to decide whether the law as it exists has principles that apply to new situations.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Well, let's go into that, because obviously the Tarzan case was a unique case, and as I said, Mr. Morgenthau singled that out as an example of the kind of lawyer you are. And I find compelling your story about being in the apartment. I have stood in homes at 3 o'clock in the morning as they are carrying the body out from a murder. I can understand how you are feeling. But in applying the law and applying the facts, you told me once that ultimately and completely the law is what controls, and I was struck by that when you did. And so there has been a great deal of talk about the Ricci case, Ricci v. DeStefano, and you and two other judges were reversed in this appeal involving firefighters in New Haven. The plaintiffs were challenging the city's decision to voluntarily discard the result of a paper-and-pencil test to measure leadership abilities. Now, the legal issue that was presented to you in that case was not a new one--not in your circuit. In fact, there was a unanimous, decades-old Supreme Court decision as well. In addition, in 1991, Congress acted to reinforce that understanding of the law. I might note that every Republican member of this Committee still serving in the Senate supported that statement of the law. So you had a binding precedent. You and two other judges came to a unanimous decision. Your decision deferred to the district court's ruling allowing the city's voluntary determination that it could not justify using that paper-and-pencil test under our civil rights laws, you say it was settled judicial precedent. A majority of the Second Circuit later voted not to revisit the panel's unanimous decision; therefore, they upheld your decision. So you had Supreme Court precedent. You had your circuit precedent. You were upheld within the circuit. Subsequently, it went to the Supreme Court, and five, a bare majority of five Justices reversed the decision, reversed their precedent, and many have said that they created a new interpretation of the law. Ironically, if you had done something other than followed the precedent, some would be now attacking you as being an activist. You followed the precedent, so now they attack you as being biased and racist. It is kind of a unique thing. You are damned if you do and damned if you don't. How do you react to the Supreme Court's decision in the New Haven firefighters case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You are correct, Senator, that the panel, made up of myself and two other judges, in the Second Circuit decided that case on the basis of a very thorough, 78-page decision by the district court and on the basis of established precedent. The issue was not what we would do or not do, because we were following precedent, and you--we're now on the circuit court--are obligated on a panel to follow established circuit precedent. The issue in Ricci was what the city did or could do when it was presented with a challenge to one of its tests that--for promotion. This was not a quota case. This was not an affirmative action case. This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups. The city was faced with the possibility, recognized in law, that the employees who were disparately impacted--that's the terminology used in the law, and that is a part of the civil rights amendment that you were talking about in 1991--that those employees who could show a disparate impact, a disproportionate pass rate, that they could bring a suit, and that then the employer had to defend the test that it gave. The city here, after a number of days of hearings and a variety of different witnesses, decided that it wouldn't certify the test, and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measuring qualifications, but which didn't have a disparate impact. And so the question before the panel was: Was the decision of the city based on race or based on its understanding of what the law required it to do? Given Second Circuit precedent, Bushey v. New York State Civil Services Commission, the panel concluded that the city's decision in that particular situation was lawful under established law. The Supreme Court, in looking and reviewing that case, applied a new standard. In fact, it announced that it was applying a standard from a different area of law, and explaining to employers and the courts below how to look at this question in the future.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. But when you were deciding it, you had precedent from the Supreme Court and from your circuit that basically determined the outcome you had to come up with. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Absolutely.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. And if today, now that the Supreme Court has changed their decision, without you having to relitigate the case, it would lay open, obviously, a different result. Certainly the circuit would be bound by the new decision. Even though it is only a 5-4 decision, a circuit would be bound by the new decision of the Supreme Court. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Absolutely, sir.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is now the statement of the Supreme Court of how employers and the Court should examine this issue.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. During the course of this nomination, there have been some unfortunate comments, including outrageous charges of racism, made about you on radio and television. One person referred to you as being ``the equivalent of the head of the Ku Klux Klan.'' Another leader in the other party referred to you as being ``a bigot.'' And to the credit of the Senators, the Republican Senators as well as Democratic Senators, they have not repeated those charges. But you have not been able to respond to any of these things. You have had to be quiet. Your critics have taken a line out of your speeches and twisted it, in my view, to mean something you never intended. You said that you ``would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.'' I remember other Justices, the most recent one Justice Alito, talking about the experience of the immigrants in his family and how that would influence his thinking and help him reach decisions. And you also said in your speech that you ``love America and value its lessons and great things could be achieved if one works hard for it.'' And then you said, ``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.'' And I will just throw one more quote in there--what you told me--that ultimately and completely, the law is what controls. So tell us. You have heard all of these charges and counter-charges, the wise Latina and on and on. Here is your chance. You tell us what is going on here, Judge.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you for giving me an opportunity to explain my remarks. No words I have ever spoken or written have received so much attention. [Laughter.] Judge Sotomayor. I gave a variant of my speech to a variety of different groups, most often to groups of women lawyers or to groups most particularly of young Latino lawyers and students. As my speech made clear in one of the quotes that you referenced, I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society. I was also trying to inspire them to believe that they could become anything they wanted to become, just as I had. The context of the words that I spoke have created a misunderstanding, and I want--a misunderstanding, and to give everyone assurances, I want to state up front unequivocally and without doubt, I do not believe that any ethnic, racial, or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences. The words that I used, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges. That has to be what she meant, because judges disagree about legal outcomes all of the time--or I shouldn't say ``all of the time.'' At least in close cases they do. Justices on the Supreme Court come to different conclusions. It can't mean that one of them is unwise--despite the fact that some people think that. So her literal words couldn't have meant what they said. She had to have meant that she was talking about the equal value of the capacity to be fair and impartial.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. And isn't that what you, having been on the bench for 17 years, set as your goal, to be fair and show integrity based on the law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I believe my 17-year record on the two courts would show that in every case that I render, I first decide what the law requires under the facts before me, and that what I do is explained to litigants why the law requires a result. And whether their position is sympathetic or not, I explain why the result is commanded by law.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. And doesn't your oath of office actually require you to do that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is the fundamental job of a judge.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Let me talk to you about another decision, District of Columbia v. Heller. In that case, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms and that it is an individual right. I have owned firearms since my early teen years. I suspect a large number of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont, so I watched that decision rather carefully and found it interesting. Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, sir.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. And in the Second Circuit's decision in Maloney v. Cuomo, you, in fact, recognize the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against Federal law restriction. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. And you accepted and applied the Heller decision when you decided Maloney?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Completely, sir. I accepted and applied established Supreme Court precedent that the Supreme Court in its own opinion in Heller acknowledged answered a different question.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Well, in fact, let me refer to that, because Justice Scalia's opinion in the Heller case expressly left unresolved and expressly reserved as a separate question whether the Second Amendment guarantee applies to the States and laws adopted by the States. Earlier this year, you were on a Second Circuit panel in a case posing that specific question, analyzing a New York State law restriction on so-called chukka sticks, a martial arts device. Now, the unanimous decision of your court cited Supreme Court precedent as binding on your decision, and the longstanding Supreme Court cases have held that the Second Amendment applies only to the Federal Government and not to the States. And I notice that the panel of the Seventh Circuit, including Judge Posner, one of the best-known, very conservative judges, cited the same Supreme Court authority and agreed with the Second Circuit decision. We all know that not every constitutional right has been applied to the States by the Supreme Court. I know that one of my very first cases as a prosecutor was the question whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the States. The Supreme Court has not held that applicable to the States. The Seventh Amendment right to a jury trial and the Eighth Amendment prohibition against excessive fines also have not been made applicable to the States. I understand that petitions seeking to have the Supreme Court apply the Second Amendment to the States are pending. So obviously I am not going to ask you, if that case appears before the Supreme Court and you are there, how you are going to rule. But would you have an open mind on the Supreme Court in evaluating the legal proposition whether the Second Amendment right should be considered a fundamental right and, thus, applicable to the States?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Like you, I understand how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA, and I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller. As you pointed out, Senator, in the Heller decision the Supreme Court was addressing a very narrow issue, which was whether an individual right under the Second Amendment applied to limit the Federal Government's rights to regulate the possession of firearms. The Court expressly, Justice Scalia in a footnote, identified that there was Supreme Court precedent that has said that that right is not incorporated against the States. What that term of ``incorporation'' means in the law is that that right doesn't apply to the States in its regulation of its relationship with its citizen. In Supreme Court parlance, the right is not fundamental. It's a legal term. It's not talking about the importance of the right in a legal term. It's talking about is that right incorporated against the States. When Maloney came before the Second Circuit, as you indicated, myself and two other judges read what the Supreme Court said, saw that it had not explicitly rejected its precedent on application to the States, and followed that precedent, because it's the job of the Supreme Court to change it.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Well----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You asked me--I'm sorry, Senator. I didn't mean to cut you off.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. No, no. Go ahead.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You asked me whether I have an open mind on that question. Absolutely. My decision in Maloney and on any case of this type would be to follow the precedent of the Supreme Court when it speaks directly on an issue, and I would not prejudge any question that came before me if I was a Justice on the Supreme Court.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Let me just ask--and I just asked Senator Sessions if he minded. I want to ask one more question, and it goes to the area of prosecution. You have heard appeals in over 800 criminal cases. You affirmed 98 percent of the convictions for violent crimes, including terrorism cases; 99 percent of the time at least one Republican-appointed judges of the panel agreed with you. Let me just ask you about one, United States v. Giordano. That was a conviction against the mayor of Waterbury, Connecticut. The victims in that case were the young daughter and niece of a prostitute, young children who, as young as 9 and 11, were forced to engage in sexual acts with the defendant. The mayor was convicted under a law passed by Congress prohibiting the use of any facility or means of interstate commerce to transmit contact information about a person under 16 for the purpose of illegal sexual activity. You spoke for the unanimous panel of the Second Circuit, which included Judge Jacobs and Judge Hall. You upheld that conviction against the constitutional challenge that the Federal criminal statute in question exceeded Congress' power under the Commerce Clause. I mention that only because I appreciate your deference to the constitutional congressional authority to prohibit illegal conduct. Did you have any difficulty in reaching the conclusion you did in the Giordano case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. I am glad you reached it. And I appreciate Senator Sessions' forbearance.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. It is good to have you back, Judge, and your family and friends and supporters, and I hope we will have a good day today. I look forward to a dialog with you. I have got to say that I liked your statement on the fidelity of the law yesterday and some of your comments this morning. And I also have to say had you been saying that with clarity over the last decade or 15 years, we would have a lot fewer problems today, because you have evidenced, I think it is quite clear, a philosophy of the law that suggests that a judge's background and experiences can and should--even should and naturally will impact their decision, which I think goes against the American ideal and oath that a judge takes to be fair to every party, and every day when they put on that robe, that is a symbol that they are to put aside their personal biases and prejudices. So I would like to ask you a few things about it. I would just note that it is not just one sentence, as my Chairman suggested, that causes us difficulty. It is a body of thought over a period of years that causes us difficulty. And I would suggest that the quotation he gave was not exactly right of the ``wise Latina'' comment that you made. You have said, I think, six different times, ``I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion . . .'' So that is a matter that I think we will talk about as we go forward. Let me recall that yesterday you said, ``It's simple: fidelity to the law. The task of a judge is not to make law. It's to apply law.'' I heartily agree with that. However, you previously have said, ``The court of appeals is where policy is made.'' And you said on another occasion, ``The law that lawyers practice and judges declare is not a definitive, capital `L' law that many would like to think exists.'' So I guess I am asking today what do you really believe on those subjects: that there is no real law--that judges do not make law, or that there is no real law and the court of appeals is where policy is made? Discuss that with us, please.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I believe my record of 17 years demonstrates fully that I do believe that law--that judges must apply the law and not make the law. Whether I've agreed with a party or not, found them sympathetic or not, in every case I have decided I have done what the law requires. With respect to judges' making policy, I assume, Senator, that you were referred to a remark that I made in a Duke law student dialog. That remark in context made very clear that I wasn't talking about the policy reflected in the law that Congress makes. That's the job of Congress to decide what the policy should be for society. In that conversation with the students, I was focusing on what district court judges do and what circuit court judges do, and I noted that district court judges find the facts and they apply the facts to the individual case. And when they do that, their holding, their finding doesn't bind anybody else. Appellate judges, however, establish precedent. They decide what the law says in a particular situation. That precedent has policy ramifications because it binds not just the litigants in that case; it binds all litigants in similar cases, in cases that may be influenced by that precedent. I think if my speech is heard outside of the minute and a half that YouTube presents and its full context examined, it is very clear that I was talking about the policy ramifications of precedent and never talking about appellate judges or courts making the policy that Congress makes.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Judge, I would just say I don't think it is that clear. I looked at that tape several times, and I think a person could reasonably believe it meant more than that. But yesterday you spoke about your approach to rendering opinions and said, ``I seek to strengthen both the rule of law and faith in the impartiality of the justice system,'' and I would agree. But you had previously said this: ``I am willing to accept that we who judge must not deny differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies, and prejudices are appropriate.'' So, first, I would like to know, Do you think there is any circumstance in which a judge should allow their prejudices to impact their decision making?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Never their prejudices. I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome. Life experiences have to influence you. We're not robots to listen to evidence and don't have feelings. We have to recognize those feelings and put them aside. That's what my speech was saying. That's our job.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. But the statement was, ``I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but continuously to judge when those opinions, sympathies, and prejudices are appropriate.'' That is exactly opposite of what you are saying, is it not?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't believe so, Senator, because all I was saying is because we have feelings and different experiences, we can be led to believe that our experiences are appropriate. We have to be open-minded to accept that they may not be and that we have to judge always that we're not letting those things determine the outcome. But there are situations in which some experiences are important in the process of judging because the law asks us to use those experiences.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, I understand that. But let me just follow up. You say in your statement that you want to do what you can to increase the faith in the impartiality of our system. But isn't it true this statement suggests that you accept that there may be sympathies, prejudices, and opinions that legitimately influence a judge's decision? And how can that further faith in the impartiality of the system?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I think the system is strengthened when judges don't assume they're impartial but when judges test themselves to identify when their emotions are driving a result or their experiences are driving a result and the law is not.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. I agree with that. I know one judge that says that if he has a feeling about a case, he tells his law clerks to, ``Watch me. I do not want my biases, sympathies, or prejudices to influence this decision, which I have taken an oath to make sure is impartial.'' I just am very concerned that what you are saying today is quite inconsistent with your statement that you willingly accept that your sympathies, opinions, and prejudices may influence your decision making.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, as I have tried to explain, what I try to do is to ensure that they're not. If I ignore them and believe that I'm acting without them, without looking at them and testing that I'm not, then I could, unconsciously or otherwise, be led to be doing the exact thing I don't want to do, which is to let something but the law command the result.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, yesterday you also said that your decisions have always been made to serve the larger interest of impartial justice. A good aspiration, I agree. But in the past, you have repeatedly said this: ``I wonder whether achieving the goal of impartiality is possible at all in even most cases, and I wonder whether by ignoring our differences as women, men, or people of color we do a disservice to both the law and society.'' Aren't you saying there that you expect your background and heritage to influence your decision making?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. What I was speaking about in that speech was--harkened back to what we were just talking about a few minutes ago, which is life experiences do influence us, in good ways. That's why we seek the enrichment of our legal system from life experiences. That can affect what we see or how we feel, but that's not what drives a result. The impartiality is an understanding that the law is what commands the result. And so to the extent that we are asking the question--because most of my speech was an academic discussion--about what should we be thinking about, what should we be considering in this process, and accepting that life experiences could make a difference, but I wasn't encouraging the belief or attempting to encourage the belief that I thought that that should drive the result.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Judge, I think it is consistent in the comments I have quoted to you and your previous statements that you do believe that your background will affect the result in cases, and that is troubling me. So that is not impartiality. Don't you think that is not consistent with your statement that you believe your role as a judge is to serve the larger interest of impartial justice?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. As I've indicated, my record shows that at no point or time have I ever permitted my personal views or sympathies to influence an outcome of a case. In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, Judge----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, you said something similar to that yesterday, that ``in each case I have applied the law to the facts at hand.'' But you have repeatedly made this statement: ``I accept the proposition''--``I accept the proposition that a difference there will be by the presence of women and people of color on the bench and that my experiences affect the facts I choose to see as a judge.'' First, that is troubling to me as a lawyer. When I present evidence, I expect the judge to hear and see all the evidence that gets presented. How is it appropriate for a judge ever to say that they will choose to see some facts and not others?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that, and in the wider context, what I believe I was--the point that I was making was that our life experiences do permit us to see some facts and understand them more easily than others. But in the end, you are absolutely right; that's why we have appellate judges that are more than one judge, because each of us from our life experiences will more easily see different perspectives argued by parties. But judges do consider all of the arguments of litigants. I have. Most of my opinions, if not all of them, explain to parties why the law requires what it does.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, do you stand by your statement that ``My experiences affect the facts I choose to see'' ?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. I don't stand by the understanding of that statement that I will ignore other facts or other experiences because I haven't had them. I do believe that life experiences are important to the process of judging; they help you to understand and listen; but that the law requires a result, and it will command you to the facts that are relevant to the disposition of the case.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, I would just note you made that statement in individual speeches about seven times over a number-of-years' span, and it is concerning to me. So I would just say to you I believe in Judge Cedarbaum's formulation, and she said--and you disagreed, and this was really the context of your speech, and you used her statement as sort of a beginning of your discussion. And you said she believes that a judge, no matter what their gender or background, should strive to reach the same conclusion, and she believes that is possible. You then argued that you do not think it is possible in all, maybe even most cases. You deal with the famous quote of Justice O'Connor in which she says, ``A wise old man should reach the same decision as a wise old woman.'' And you push back from that. You say you do not think that is necessarily accurate, and you doubt the ability to be objective in your analysis. So how can you reconcile your speeches, which repeatedly assert that impartiality is a mere aspiration which may not be possible in all or even most cases with your oath that you have taken twice, which requires impartiality?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. My friend Judge Cedarbaum is here this afternoon, and we are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts. I also, as I explained, was using a rhetorical flourish that fell flat. I knew that Justice O'Connor couldn't have meant that if judges reached different conclusions, legal conclusions, that one of them wasn't wise. That couldn't have been her meaning because reasonable judges disagree on legal conclusions in some cases. So I was trying to play on her words. My play was--fell flat. It was bad, because it left an impression that I believed that life experiences commanded a result in a case. But that's clearly not what I do as a judge. It's clearly not what I intended. In the context of my broader speech, which was attempting to inspire young Hispanic, Latino students and lawyers to believe that their life experiences added value to the process.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, I can see that perhaps as a lay person's approach to it, but as a judge who has taken this oath, I am very troubled that you would repeatedly over a decade or more make statements that consistently--any fair reading of these speeches consistently argues that this ideal and commitment--I believe every judge is committed, must be, to put aside their personal experiences and biases and make sure that that person before them gets a fair day in court. Judge, so philosophy can't impact your judging. I think it is much more likely to reach full flower if you sit on the Supreme Court than it will on a lower court where you are subject to review by your colleagues on the higher Court. So with regard to how you approach law and your personal experiences, let's look at the New Haven firefighters case, the Ricci case. In that case, the city of New Haven told firefighters that they would take an exam, set for the process for it, that would determine who would be eligible for promotion. The city spent a good deal of time and money on the exam to make it a fair test of a person's ability to serve as a supervisory fireman, which, in fact, has the awesome responsibility at times to send their firemen into a dangerous building that is on fire. And they had a panel that did oral exams--it was not all written--consisting of one Hispanic and one African American and one white. And according to the Supreme Court--this is what the Supreme Court held: The New Haven officials were careful to ensure broad racial participation in the design of the test and its administration. The process was open and fair. There was no genuine dispute that the examinations were job related and consistent with business purposes, business necessity. But after the city saw the results of the exam, it threw out those results because ``not enough of one group did well enough on the test.'' The Supreme Court then found that the city, and I quote, ``rejected the test results solely because the higher scoring candidates were white. After the tests were completed, the raw racial results became the predominant rationale for the city's refusal to certify the results.'' So you have stated that your background affects the facts that you choose to see. Was the fact that the New Haven firefighters had been subject to discrimination one of the facts you chose not to see in this case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. The panel was composed of me and two other judges. In a very similar case, the Seventh Circuit, in an opinion authored by Judge Easterbrook--I'm sorry. I misspoke. It wasn't Judge Easterbrook. It was Judge Posner--saw the case in an identical way. And neither judge--I have confused some statements that Senator Leahy made with this case, and I apologize. In a very similar case, the Sixth Circuit approached a very similar issue in the same way. So a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and Second Circuit precedent and determined that the city, facing potential liability under Title VII, could choose not to certify the test if it believed an equally good test could be made with a different impact on affected groups. The Supreme Court, as it is its prerogative in looking at a challenge, established a new consideration or a different standard for the city to apply, and that is, was there substantial evidence that they would be held liable under the law? That was a new consideration. Our panel didn't look at that issue that way because it wasn't argued to us in the case before us and because the case before us was based on existing precedent. So it is a different test----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Judge, there was apparently unease within your panel. I was really disappointed--and I think a lot of people have been--that the opinion was so short, it was per curiam, it did not discuss the serious legal issues that the case raised. And I believe that is a legitimate criticism of what you did. But it appears, according to Stuart Taylor, the respected legal writer for the National Journal, that--Stuart Taylor concluded that it appears that Judge Cabranes was concerned about the outcome of the case, was not aware of it because it was a per curiam unpublished opinion, but it began to raise the question of whether rehearing should be granted. You say you are bound by the superior authority, but the fact is when the question of rehearing that Second Circuit authority that you say covered the case--some say it didn't cover so clearly--but that was up for debate. And the circuit voted, and you voted not to reconsider the prior case. You voted to stay with the decision of the circuit and, in fact, your vote was the key vote. Had you voted with Judge Cabranes, himself of Puerto Rican ancestry, had you voted with him, you could have changed that case. So, in truth, you weren't bound by that case had you seen it a different way. You must have agreed with it and agreed with the opinion and stayed with it until it was reversed by the Court. Let me just mention this: In 1997----
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Was that a question or----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, that was a response to some of what you said, Mr. Chairman, because you misrepresented factually the posture of the case. In 19----
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Well, I obviously will disagree with that, but we will have a chance to vote on this issue.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. In 1997, when you came before the Senate and I was a new Senator, I asked you this: ``In a suit challenging a Government racial preference, quota, or set- aside, will you follow the Supreme Court decision in Adarand and subject racial preferences to the strictest judicial scrutiny? '' In other words, I asked you would you follow the Supreme Court's binding decision in Adarand v. Pena? In Adarand, the Supreme Court held that all governmental discrimination, including affirmative action programs, that discriminated by race of an applicant must face strict scrutiny in the courts. In other words, this is not a light thing to do. When one race is favored over another, you must have a really good reason for it, or it is not acceptable. After Adarand, the Government agencies must prove there is a compelling state interest in support of any decision to treat people differently by race. This is what you answer: ``In my view, the Adarand Court correctly determined that the same level of scrutiny, strict scrutiny, applies for the purpose of evaluating the constitutionality of all government classifications, whether at the State or Federal level, based on race.'' So that was your answer, and it deals with the government being the city of New Haven. You made a commitment to this Committee to follow Adarand. In view of this commitment, you gave me 12 years ago, why are the words ``Adarand,'' ``equal protection,'' and ``strict scrutiny'' completely missing from any of your panel's discussion of this decision?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Because those cases were not what was at issue in this decision, and, in fact, those cases were not what decided the Supreme Court's decision. The Supreme Court parties were not arguing the level of scrutiny that would apply with respect to intentional discrimination. The issue is a different one before our court and the Supreme Court, which is, What is a city to do when there is proof that its test disparately impacts a particular group? And the Supreme Court decided, not on the basis of strict scrutiny, that what it did here was wrong, what the city did here was wrong, but on the basis that the city's choice was not based on a substantial basis in evidence to believe it would be held liable under the law. Those are two different standards, two different questions that a case would present.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. This case was recognized pretty soon as a big case. I noticed what perhaps kicked off Judge Cabranes' concern was a lawyer saying it was the most important discrimination case that the circuit had seen in 20 years. They were shocked. They got a, basically, one paragraph decision, per curiam, unsigned, back on that case. Judge Cabranes apparently raised this issue within the circuit, asked for a rehearing. Your vote made the difference in not having a rehearing en banc. And he said, ``Municipal employers could reject the results''--and talking about the results of your test, the impact of your decision. ``Municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable outcome, i.e., failed to satisfy a racial quota.'' So that was Judge Cabranes' analysis of the impact of your decision. And he thought it was very important. He wanted to review this case. He thought it deserved a full and complete analysis and opinion. He wanted the whole circuit to be involved in it. And to the extent that some prior precedent in the circuit was different, the circuit could have reversed that precedent had they chose to do so. Don't you think--tell us how it came to be that this important case was dealt with in such a cursory manner?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The panel decision was based on a 78-page District Court opinion. The opinion referenced it. In its per curiam, the Court incorporated it directly, but it was referenced by the circuit. And it relied on that very thoughtful, thorough opinion by the District Court. And that opinion discussed Second Circuit precedent in its fullest--to its fullest extent. Justice Cabranes had one view of the case; the panel had another. The majority of the vote--it wasn't just my vote--the majority of the Court, not just my vote, denied the petition for rehearing. The court left to the Supreme Court the question of how an employer should address what no one disputed, was prima facie evidence that its test disparately impacted on a group. That was undisputed by everyone, but the case law did permit employees that had been disparately impacted to bring a suit. The question was, for the city, was it racially discriminating when it didn't accept those tests or was it attempting to comply with the law.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, Your Honor, I think it is not fair to say that a majority--I guess it is fair to say a majority voted against rehearing, but it was 6 to 6, unusual that one of the judges had to challenge a panel decision. And your vote made the majority not to rehear it. Ricci did deal with some important questions, some of the questions that we have got to talk about as a nation. We have to work our way through. I know there is concern on both sides of this issue, and we should do it carefully and correctly. But do you think that Frank Ricci and the other firefighters, whose claims you dismissed, felt that their arguments and concerns were appropriately understood and acknowledged by such a short opinion from the Court?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. We were very sympathetic and expressed our sympathy to the firefighters who challenged the city's decision, Mr. Ricci and the others. We understood the efforts that they had made in taking the test; we said as much. They did have before them a 78-page thorough opinion by the District Court. They obviously disagreed with the law as it stood under Second Circuit precedent. That's why they were pursuing their claims and did pursue them further. In the end, the body that had the discretion and power to decide how these tough issues should be decided, that along the precedent that had been recognized by our circuit court and another at least, the Sixth Circuit, but along what the Court thought would be the right test or standard to apply. And that's what the Supreme Court did. It answered that important question because it had the power to do that. Not the power, but the ability to do that because it was faced with the arguments that suggested that. The panel was dealing with precedent and arguments that relied on our precedent.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you, Judge, and I appreciate this opportunity. I would just say, though, had the per curiam opinion stood without a rehearing requested by one of the judges in the whole circuit and kicked off the discussion, it is very, very unlikely that we would have heard about this case or the Supreme Court would have taken it up. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Obviously, we can talk about your speeches, but, ultimately, will it determine how you act as a judge and how you make decisions? And I will put into the record the American Bar Association, which has unanimously given you the highest rating. I put into the record the New York City Bar, which said you are extremely well credentialed to sit on the Supreme Court. I will put that in there. I will put in the Congressional Research Service report analyzing your cases and found that you consistently deal with the law and with stare decisis, upholding past judicial precedents. I will put in that the nonpartisan Brennan Center found you solidly in the mainstream. And then in another analysis of more than 800 of your cases, which found you called a traditional consensus judge on criminal justice issues. [The statements appear as a submission for the record.] Chairman Leahy. I thought I would put those in. It is one thing to talk about speeches you might give. I am more interested about cases you might decide.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Senator Kohl. Thank you very much, Mr. Chairman, and good morning, Judge Sotomayor.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Good morning.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Just spent a great deal of time on the New Haven case, so I would like to see if we can put it into some perspective. Isn't it true that Ricci was a very close case? Isn't it true that 11 of the 22 judges that reviewed the case did agree with you, and that it was only reversed by the Supreme Court by a one vote 5 to 4 margin? Do you agree, Judge, that it was a close case and that reasonable minds could have seen it in one way or another and not be seen as prejudiced or unable to make a clear decision?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. To the extent that reasonable minds can differ on any case, that's true as to what the legal conclusion should be in a case. But the panel, at least as the case was presented--was relying on the reasonable views that Second Circuit precedent had established. And so, to the extent that one, as a judge, adheres to precedents, because it is that which dies and gives stability to the law, then those reasonable minds, who decided the precedent and the judges who apply it, are coming to the legal conclusion they think the facts and laws require.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right. Judge, we have heard several of our colleagues, now, particularly on the other side, criticize you because they believe some things that you have said in speeches show that you will not be able to put your personal views aside. But I believe rather than pulling lines out of speeches, oftentimes out of context, there are better ways to examine your record as a judge. In fact, when I ask now Justice Alito what sort of a justice he was going to make, he said, ``If you want to know what sort of justice I would make, look at what sort of judge I've been.'' So you have served now as a Federal judge for the past 17 years, the last 11 as an appellate court judge. We examined the record. I believe it is plain that you are a careful jurist, respectful of precedent, and author of dozens of moderate and carefully reasoned decisions. The best evidence I believe is the infrequency with which you have been reversed. You have authored over 230 majority opinions in your 11 years on the Second Circuit Court of Appeals. But in only three out of those 230 plus cases have your decisions been reversed by the Supreme Court, a very, very low reversal rate of 2 percent. Doesn't this very low reversal rate indicate that you do have, in fact, an ability to be faithful to the law and put your personal opinions and background aside when deciding cases, as you have in your experience as a Federal judge?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I believe what my record shows is that I follow the law, and that my small reversal rate, vis-a-vis the vast body of cases that I have examined--because you've mentioned only the opinions I've authored. But I've been a participant in thousands more that have not been either reviewed by the Supreme Court or reversed.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Well, I agree with what you are saying. And I would like to suggest that this constant criticism of you in terms of your inability to be an impartial judge is totally refuted by the record that you have compiled as a Federal judge up to this point. We have heard much recently about Chief Justice Roberts' view that judges are like umpires simply calling balls and strikes. So finally, would you like to take the opportunity to give us your view about this sort of an analogy?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Few judges could claim they love baseball more than I do, for obvious reasons. But analogies are always imperfect, and I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands. It's a refrain I keep repeating because that is my philosophy of judging, applying the law to the facts at hand. And that's my description of judging.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Thank you. Judge, which current one or two Supreme Court justices do you most identify with and which ones might we expect you to be agreeing with most of the time in the event that you are confirmed?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, to suggest that I admire one of the sitting Supreme Court justices would suggest that I think of myself as a clone of one of the justices. I don't. Each one of them brings integrity, their sense of respect for the law, and their sense of their best efforts and hard work to come to the decisions they think the law requires. Going further than that would put me in the position of suggesting that by picking one justice, I was disagreeing or criticizing another, and I don't wish to do that. I wish to describe just myself. I'm a judge who believes that the facts drive the law and the conclusion that the law will apply to that case. And when I say drives the law, I mean determines how the law will apply in that individual case. If you would ask me--instead, if you permit me to tell you a justice from the past that I admire for applying that approach to the law, it would be Justice Cardozo. Now, Justice Cardozo didn't spend a whole lot of time on the Supreme Court; he had an untimely passing. But he had been a judge on the New York Court of Appeals for a very long time. And during his short tenure on the bench, one of the factors that he was so well known for was his great respect for precedent, and his great respect for respect and deference to the legislative branch, and to the other branches of government and their powers under the Constitution. In those regards, I do admire those parts of Justice Cardozo, which he was most famous for, and think that that is how I approach the law, as a case-by-case application of law to facts.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Thank you. Appreciate that. Judge Sotomayor, many of us are impressed with you in your nomination and we hold you in great regard. But I believe we have a right to know what we are getting before we give you a lifetime appointment to the highest court in the land. In past confirmation hearings, we have seen nominees who tell us one thing during our private meetings and in the confirmation hearings, and then go to the Court and become a justice that is quite different from the way they portrayed themselves at the hearing. So I would like to ask you questions about a few issues that have generated much discussion. First, affirmative action. Judge, I would like to discuss the issue of affirmative action. We can all agree that it is good for our society when employers, schools and government institutions encourage diversity. On the other hand, the consideration of ethnicity or gender should not trump qualifications or turn into a rigid quota system. Without asking you how you would rule in any particular case, what do you think of affirmative action? Do you believe that affirmative action is a necessary part of our society to date? Do you agree with Justice O'Connor that she expects in 25 years the use of racial preferences will no longer be necessary to promote diversity? Do you believe affirmative action is more justified in education than in employment or do you think it makes no difference?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The question of whether affirmative action is necessary in our society or not and what form it should take is always first a legislative determination in terms of legislative or government employer determination in terms of what issue it is addressing and what remedy it is looking to structure. The Constitution promotes and requires the equal protection of law of all citizens in its Fourteenth Amendment. To ensure that protection, there are situations in which race in some form must be considered. The courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the Court. It is firmly my hope, as it was expressed by Justice O'Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years, race in our society won't be needed to be considered in any situation. That's the hope, and we've taken such great strides in our society to achieve that hope. But there are situations in which there are compelling state interests. And the admissions case that Justice O'Connor was looking at, the Court recognized that in the education field. And the state is applying a solution that is very narrowly tailored. And there the Court determined that the law school's use of race as only one factor among many others, with no presumption of admission whatsoever, was appropriate under the circumstances. In another case, companion case, the Court determined that a more fixed use of race that didn't consider the individual was inappropriate, and it struck down the undergraduate admissions policy. That is what the Court has said about the educational use of race in a narrow way. The question, as I indicated, of whether that should apply in other contexts has not been looked at by the Supreme Court directly. The holdings of that case have not been applied or discussed in another case. That would have to await another state action that would come before the Court, where the state would articulate its reasons for doing what it did, and the Court would consider if those actions were constitutional or not.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Thank you. Judge, Bush v. Gore. Many critics saw the Bush v. Gore decision as an example of the judiciary improperly injecting itself into a political dispute. In your opinion, should the Supreme Court even have decided to get involved in Bush v. Gore?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That case took the attention of the nation, and there's been so much discussion about what the Court did or didn't do. I look at the case, and my reaction as a sitting judge is not to criticize it or to challenge it, even if I were disposed that way, because I don't take a position on that; that the Court took and made the decision it did. The question for me as I look at that sui generis situation--it's only happened once in the lifetime of our country--is that some good came from that discussion. There's been and was enormous electoral process changes in many states as a result of the flaws that were reflected in the process that went on. That is a tribute to the greatness of our American system, which is whether you agree or disagree with a Supreme Court decision, that all of the branches become involved in the conversation of how to improve things. And as I indicated, both Congress, who devoted a very significant amount of money to electoral reform in its legislation--and states have looked to address what happened there.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Judge, in a 5:4 decision in 2005, the Supreme Court ruled in Kelo v. City of New London, that it was constitutional for local government to seize private property for private, economic development. Many people, including myself, were alarmed about the consequences of this landmark ruling because, in the words of dissenting Justice O'Connor, under the logic of the Kelo case, ``Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall, or any farm with a factory.'' This decision was a major shift in the law. It said that private development was a permissible ``public use,'' according to the Fifth Amendment, as long as it provided economic growth for the community. What is your opinion of the Kelo decision, Judge Sotomayor? What is an appropriate ``public use'' for condemning private property?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Kelo is now a precedent of the Court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge. As a Supreme Court judge, I must give it the deference that the doctrine of the stare decisis would suggest. The question of the reach of Kelo has to be examined in the context of each situation. And the Court did in Kelo note that there was a role for the courts to play in ensuring that takings by a state did, in fact, intend to serve the public--a public purpose and public use. I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there the Court held that a taking to develop an economically blighted area was appropriate.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Yes. That is what they decided in Kelo. I asked you your opinion, and apparently you feel that you are not in a position to offer an opinion because it is precedent, and now you are required to follow precedent as an appellate court judge. But I asked you if you would express your opinion, assuming that you became a Supreme Court justice, and assuming that you might have a chance someday to review the scope of that decision.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't prejudge issues.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is actually--I come to every case with an open mind.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Every case is a new for me.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. That is good. All right. Let's leave that. As you know, Judge, the landmark case of Griswold v. Connecticut guarantees that there is a fundamental constitutional right to privacy as it applies to contraception. Do you agree with that? In your opinion, is that settled law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is the precedent of the Court, so it is settled law.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Is there a general constitutional right to privacy, and where is the right to privacy, in your opinion, found in the Constitution?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There is a right of privacy. The Court has founded in various places in the Constitution, has recognized rights under those various provisions of the Constitution. It's founded in the Fourth Amendment's right and prohibition against unreasonable search and seizures. Most commonly, it's considered--I shouldn't say most commonly because search and seizure cases are quite frequent before the Court. But it's also found in the Fourteenth Amendment of the Constitution when it is considered in the context of the liberty interest protected by the due process clause of the Constitution.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right. Judge, the Court's ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roe settled law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Court's decision in Planned Parenthood v. Casey reaffirmed the core holding of Roe. That is the precedent of the Court and settled in terms of the holding of the Court.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Do you agree with Justices Souter, O'Connor and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, Casey reaffirmed the holding in Roe. That is the Supreme Court's settled interpretation of what the core holding is and its reaffirmance of it.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right. Let's talk a little bit about cameras in the court. You sit on a court of appeals, which does allow cameras in the court. And from all indications, your experience with it has not been negative. In fact, I understand it has been somewhat positive. So how would you feel about allowing cameras in the Supreme Court, where the country would have a chance to view discussions and arguments about the most important issues that the Supreme Court decides with respect to our Constitution, our rights and our future?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I have had positive experiences with cameras. When I have been asked to join experiments using cameras in the courtroom, I have participated. I have volunteered. Perhaps it would be useful if I explained to you my approach to collegiality on a court. [Laughter.] Judge Sotomayor. It is my practice when I enter a new enterprise, whether it's on a court or in my private practice or when I was a prosecutor, to experience what those courts were doing, or those individuals doing that job were doing, understand and listen to the arguments of my colleagues about why certain practices were necessary or helpful, or why certain practices shouldn't be done, or new procedures tried, and then spend my time trying to convince them. But I wouldn't try to come in with prejudgments, so that they thought that I was unwilling to engage in a conversation with them, or unwilling to listen to their views. I go in and I try to share my experiences, to share my thoughts, and to be collegial and come to a conclusion together. And I can assure you that if this august body gives me the privilege of becoming a justice of the Supreme Court, that I will follow that practice with respect to the tall issues of procedures on the Court, including the question of cameras in the courtroom.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. No. I appreciate the fact that if you cannot convince them, it will not happen. But how do you feel---- [Laughter.] Senator Kohl [continuing]. How do you feel about permitting cameras in the Supreme Court, recognizing that you cannot decree it by fiat?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You know, I'm pretty good----
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Do you think it is a good idea?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. I'm a pretty good litigator. I was a really good litigator. And I know that when I work hard at trying to convince my colleagues of something after listening to them, they'll often try it for a while. I mean, we'll have to talk together. We'll have to figure out that issue together.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I would be, again, if I was fortunate enough to be confirmed, a new voice in the discussion, and new voices often see things, and talk about them, and consider taking new approaches.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right. Judge, all of us in public office, other than Federal judges, have specific fixed terms, and we must periodically run for reelection if you want to remain in office. Even most state court judges have fixed terms of office. The Federal Judiciary, as you know, is very different. You have no term of office; instead, you serve for life. So I would like to ask you, would you support term limits for Supreme Court justices, for example, 15, 20 or 25 years? Would this help ensure that justices do not become victims of a cloistered, ivory tower existence, and that you will be able to stay in touch with the problems of ordinary Americans? Term limits for Supreme Court justices?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. All questions of policy are within the providence of Congress first. And so, that particular question would have to be considered by Congress first. But it would have to consider it in light of the Constitution and then of statutes that govern these issues. And so, that first step and decision would be Congress'. I can only note that there was a purpose to the structure of our Constitution, and it was a view by the Founding Fathers that they wanted justices who would not be subject to political whim or to the emotions of a moment. And they felt that by giving them certain protections, that that would ensure their objectivity and their impartiality over time. I do know, having served with many of my colleagues who have been members of the court, sometimes for decades, I had one colleague who was still an active member of the court in his nineties. And at close to 90, he was learning the Internet and encouraging my colleagues of a much younger age to participate in learning the Internet. So I don't think that it's service or the length of time. I think there's wisdom that comes to judges from their experience that helps them in the process over time. I think in the end, it is a question of, one, of what the structure are of our government is best served by. And as I said, the policy question will be considered first by Congress and the processes set forth by the Constitution. But I do think there is a value in the services of judges for long periods of time.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right, Judge. Finally, I would like to turn to antitrust law. Antitrust law is not some mysterious legal theory, as you know, that only lawyers can understand. Antitrust is just an old-fashioned word for fair competition, Judge, and it is a law we use to protect consumers and competitors alike from unfair and illegal trade practices. A prominent antitrust lawyer named Carl Hittinger was quoted in an AP story recently as saying that, ``Judge Sotomayor has surprisingly broke the pro-business record in the area of antitrust. In nearly every case in which she was one of the three judges considering a dispute, the court ruled against the plaintiff bringing an antitrust complaint.'' I would like you to respond to that and to one other thing I would like to raise. In 2007, Leegin case, in a 5-4 decision. Supreme Court overturned a 97-year-old precedent and held that vertical price fixing no longer automatically violated antitrust law. In effect, this means that a manufacturer is now free to set minimum prices at retail for its products, and thereby, prohibit discounting of its products. What do you think of this decision? Do you think it was appropriate for the Supreme Court, by judicial fiat, to overturn a nearly century-old decision, on the meaning of this Sherman Act, that businesses and consumers had come to rely on and which had been never altered by Congress? Those two things, antitrust.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I cannot speak, Senator, to whether Leegins was right or wrong; it's now the established law of the Court. That case in large measure centered around the justices, different views of the effects of stare decisis on a question which none of them seemed to dispute, that there were a basis to question the economic assumptions of the Court in this field of law. Leegins is the Court's holding, its teachings and holding. And I will have to apply in new cases, so I can't say more than what I know about it and what I thought the Court was doing there. With respect to my record, I can't speak for why someone else would view my record as suggesting a pro or anti approach to any series of cases. All of the business cases, as with all of the cases, my structure of approaching is the same; what is the law requiring? I would note that I have cases that have upheld antitrust complaints and upheld those cases going forward. I did it in my Visa/MasterCard antitrust decision, and that was also a major decision in this field. All I can say is that with business and the interest of any party before me, I will consider and apply the law as it is written by Congress and informed by precedent.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Thank you very much, Judge Sotomayor, and thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Judge Sotomayor, this is probably an appropriate place to take a short break, and we will. And then we will come back. At some point, we will break for both the Republicans and the Democrats to be in caucus lunch, but also gives you a chance to have lunch. So we will take a 10-minute, flexible 10-minute, break. And I thank you for your patience here, Judge Sotomayor, and we will be back. [Whereupon, at 11:08 a.m., the hearing was recessed.] After Recess [11:27 a.m.] Chairman Leahy. There has been some question during the break from the press about what our schedule will be, and I fully understand that they have to work out their own schedules. What I would suggest--Senator Kohl asked questions. We will go to--next is Senator Hatch, a former chairman of this committee. Following Senator Hatch, we will go to Senator Feinstein. And that will bring us to roughly 12:30. Because of the caucuses, we will break at 12:30, but then resume right at 2, which will mean--I have talked to Republicans and Democrats. It means everybody that wants to come back will leave their caucus a few minutes early. But I think everybody will understand that. Senator Hatch is a former chairman of this committee and a friend of many years. I recognize Senator Hatch.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, thank you, Mr. Chairman. Welcome, again, and to your lovely family. We are grateful to have you all here. Now, let me ask you a question about settled law. If a holding in the Supreme Court means that it is settled, you believe that Gonzalez v. Carhart, upholding the partial birth abortion ban, is settled law.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. All precedents of the Supreme Court I consider settled law subject to the deference with doctrine of stare decisis would counsel.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Now, I want to begin here today by looking at your cases in an area that is very important to many of us, and that is the Second Amendment, the right to keep and bear arms, and your conclusion that the right is not fundamental. Now, in the 2004 case entitled United States v. Sanchez- Villar, you handled the Second Amendment issue in a short footnote. You cited the Second Circuit's decision in United States v. Toner for the proposition of the right to possess a gun is not a fundamental right. Toner in turn relied on the Supreme Court's decision in United States v. Miller. Last year, in the District of Columbia v. Heller, the Supreme Court examined Miller and concluded that, ``The case did not even purport to be a thorough examination of the Second Amendment,'' and that Miller provided ``no explanation of the content of the right.'' You are familiar with that.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am, sir.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Okay. So let me ask you, doesn't the Supreme Court's treatment of Miller at least cast doubts on whether relying on Miller, as the Second Circuit has done for this proposition, is proper?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The issue----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Remember, I am saying at least cast doubts.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. Well, that is what I believe Justice Scalia implied in his footnote 23, but he acknowledged that the issue of whether the right, as understood in Supreme Court jurisprudence, was fundamental. It's not that I considered it unfunda-mental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the states.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, it did not decide that point.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the Court's precedent had held it was not--his opinion with respect to the application of the Second Amendment to government regulation was a different inquiry, and a different inquiry as to the meaning of U.S. Miller with respect to that issue.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, if Heller had already been decided, would you have addressed that issue differently than Heller or would you take the position that the doctrine of incorporation is inapplicable with regard to state issues?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's the very question that the Supreme Court is more than likely to be considering. There are three cases addressing this issue, at least I should say three cases addressing this issue in the circuit courts. And so, it's not a question that I can address. As I said, bring an open mind to every case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I accept that. In Sanchez-Villar, you identified the premise that a right to possess a gun is not fundamental, and the conclusion that New York's ban on gun possession was permissible under the Second Amendment, but it is not a word actually connecting the premise to the conclusion. Without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the Second Amendment. Is that what you believe?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir, because that's not--I'm not taking an opinion on that issue because it's an open question. Sanchez is----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. So you admit it is an open question.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, I admit that Justice--I admit--I-- the courts have been addressing that question. The Supreme Court in the opinion authored by Justice Scalia suggested that it was a question that the Court should consider. I am just attempting to explain that U.S. v. Sanchez was using fundamental in its legal sense, that whether or not it had been incorporated against the states. With respect to that question, moreover, even if it's not incorporated against the states, the question would be would the states have a rational basis for the regulation it has in place. And I am--I believe that the question there was whether or not a prohibition against felons possessing firearms was at question, if my memory serves me correctly. If it doesn't--but even Justice Scalia in the majority opinion in Heller recognized that that was a rational basis regulation for a state under all circumstances, whether or not there was a Second Amendment right.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, in the District of Columbia v. Heller, the Supreme Court observed that, ``It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a preexisting right.'' And the Court also observed this, ``By the time of the founding, the right to have arms had become fundamental for English subjects.'' Now, the Court also described the right to bear arms is a natural right. Do you recall that from that decision?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I do remember that discussion.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. All right. In what way does the Court's observation that the Second Amendment codified the preexisting, fundamental right to bear arms affect your conclusion that the Second Amendment does not protect a fundamental right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. My conclusion in the Maloney case or in the U.S. Sanchez-Villar was based on precedence and the holding of precedence that the Second Circuit did not apply to the states.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, what is--excuse me. I am sorry. I did not mean to interrupt you. What is your understanding of the test or standard the Supreme Court has used to determine whether a right should be considered fundamental? I am not asking a hypothetical here. I am only asking about what the Supreme Court has said in the past on this question. I recall, for instance, the Court emphasizing that a right must be deeply rooted in our Nation's history and tradition, that it is necessary to an Anglo-American regime of ordered liberty or that it is an enduring American tradition. I think I have cited that pretty accurately on what the Court has held with regard to what is a fundamental right. Now, those are different formulations from the Supreme Court's decisions, but I think the common thread there is obvious. Now, is that your understanding of how the Supreme Court has evaluated whether a right should be deemed fundamental?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Supreme Court's decision with respect to the Second Circuit incorporation--Second Amendment incorporation doctrine is reliant on old precedent of the Court.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And I don't mean to use that as precedent that doesn't bind when I call it old. I'm talking about precedent that was passed in the 19th century. Since that time, there is no question that different cases addressing different amendments of the Constitution have applied a different framework. And whether that framework and the language you quoted are precise or not, I haven't examined that framework in a while to know if that language is precise or not. I'm not suggesting it's not, Senator. I just can't affirm----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Sure.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. That description. My point is, however, that once there's Supreme Court precedent directly on point and Second Circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word fundamental, then my panel, which was unanimous on this point--there were two other judges and at least one other--or one other panel on the Seventh Circuit by Justice--by Justice--by Judge Easterbrook, has agreed that once you have settled precedent in an area, on a precise question, then the Supreme Court has to look at that. And under the deference one gives to stare decisis and the factors one considers in deciding whether that older precedent should be changed or not, that's what the Supreme Court will do.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. All right. As I noted, the Supreme Court put the Second Amendment in the same category as the First and the Fourth Amendments as preexisting rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Those rights have been incorporated against the states. The states must comply with them. So to the extent that the Court has held that, then they are--they have been deemed fundamental as that term is understood legally.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. What about the Fourth Amendment about unreasonable searches and seizures?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As well.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Same?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But with respect to the holding as it relates to that particular amendment.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I understand. Let me turn to your decision in Maloney v. Cuomo. And this is the first post-Heller decision about the Second Amendment to reach any Federal court, or Federal appeals court. I think I should be more specific. In this case, you held that the Second Amendment applies only to the Federal Government and not to the states. And this was after Heller. And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That plus some Second Circuit precedent that had held that it had not--that the amendment had not been----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. But Plesser was definitely one of the cases you relied on.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It was.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. All right. In that case--or I should say, that case involved the Fourteenth Amendment's privileges and immunities clause. Now, is that correct? Are you aware of that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It may have. I haven't read it recently enough to remember exactly.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. You can take my word on it.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Okay. I'll accept----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Thank you. Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated. But the Court did say that its 19th century cases about applying the Bill of Rights to the states ``did not engage the sort of Fourteenth Amendment inquiry required by our later cases.'' Now, here is my question. Am I right that those later cases to which the Court referred involved the Fourteenth Amendment's due process clause rather than its privileges and immunities clause?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, I haven't examined those cases recently enough to be able to answer your question, Senator. But what I can say is that regardless of what those pieces address or didn't address, the Second Circuit had very directly addressed the question of whether the Second--whether it viewed the Second Amendment as applying against the states. To that extent, if that precedent got the Supreme Court's teachings wrong, it still would bind my court.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I understand that.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And to the extent that----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I am talking about something beyond that. I am talking about what should be done here. Isn't the Presser case that you relied on in Maloney--to say that the Second Amendment does not apply to the states, one of those 19th century cases where they have used the privileges and immunities clause, not the Fourteenth Amendment due process clause, to incorporate--see, the late cases have all used the Fourteenth Amendment, as far as I can recall.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, Senator, I just haven't looked at those cases to analyze it. I know what Heller said about them. In Maloney, we were addressing a very, very narrow question.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And in the end, the issue of whether that precedent should be followed or not is a question the Supreme Court's going to address if it accepts certiorari in one of the three cases in which courts have looked at this question, the Court of Appeals has.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. The reason I am going over this is I believe you applied the wrong line of cases in Maloney, because you were applying cases that used the privileges and immunities clause and not cases that used the Fourteenth Amendment due process clause. Let me just clarify your decision in Maloney. As I read it, you held that the Second Amendment does not apply to the state or local governments. You also held that since the right to bear arms is not fundamental, all that is required to justify a weapons restriction is some reasonably conceivable state of facts that could provide a rational basis for it. Now, am I right that this is a very permissive standard that would be easily met, the rational basis standard?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, all standards of the Court are attempting to ensure that government action has a basis.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In some situations, the Court looks at the action and applies a stricter scrutiny to the government's action. In others, if it's not a fundamental right in the way the law defines that, but it hasn't been incorporated against the states, then standard of review is of rational basis.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. And my point is, it is a permissive standard that can be easily met; isn't that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, the government can remedy a social problem that it is identifying or difficulty--it's identifying in conduct, not in the most narrowly tailored way. But one that reasonably seeks to achieve that result, in the end, it can't be arbitrary and capricious. That's a word that is not in the definition.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Maybe I can use the words ``more easily met'' ? How is that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, the rational basis does look more broadly than strict scrutiny may----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. That is my point. That is my point. As a result of this very permissive legal standard, and it is permissive, doesn't your decision in Maloney mean that virtually any state or local weapons ban would be permissible?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Sir, in Maloney we were talking about nunchuck sticks.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I understand.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Those are martial art sticks.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Two sticks bound together by rawhide or some sort of a----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Exactly. And when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured because that swinging mechanism can break arms, it can bust someone's skull----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Sure.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. It can cause not only serious but fatal damage. So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court, because the Second Amendment has not been incorporated against the state, was did the state have a rational basis for prohibiting the possession of this kind of instrument. So it's a very narrow question. Every kind of regulation would come to a court with a particular statute, which judicial--legislative findings as to why a remedy is needed. And that statute would then be subject to rational basis review.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, the point that I am really making is, is that the decision was based upon a 19th century case that relied on the privileges and immunities clause, which is not the clause that we use to invoke the doctrine of incorporation today. And that is just an important consideration for you as you see these cases in the future. But let me just change the subject. In the Ricci case--and I am very concerned about that because of a variety of reasons--the Court split 5 to 4 on whether to grant summary judgment to the firefighters. And it was a summary judgment, meaning it didn't have to be distributed to the other judges on the Court. The other reason that Judge Cabranes raised the issue is that he read it in the newspaper, and then said I want to see that case. Then he got it, and he realized, my gosh, this is a case of first impression. So the Court split 5 to 4 on whether to grant summary judgment to the firefighters. Now, even the four dissenters said that the firefighters deserved their day in court to find more facts. But all nine justices disagreed with your handling of that particular case. Now, thus, your decision in--I mean, even though it was a 5 to 4 decision, all nine of them disagreed with your handling. All right. But, as you know, your decision in Ricci v. DeStefano has become very controversial. People all over the country are tired of courts imposing their will against one group or another without justification. Now, the primary response or defense so far seems to be that you have no choice because you were bound by clear and longstanding precedent. Most say you were bound by Second Circuit precedent; some say it was Supreme Court precedent. So I need to ask you about this. To be clear, this case involved not only disparate impact discrimination, but both disparate treatment and disparate impact. That is what made it a case of first impression. The city says that they had to engage in disparate treatment or they would have been sued for disparate impact. So it was how these two concepts of discrimination, disparate treatment and disparate impact, relate in the same case? The fact of the issue of whether you were bound by clear, longstanding precedent, as I recall your opinion in this case, whether it was the summary order or the per curiam opinion, did not cite any Supreme Court or Second Circuit Court precedent at all. Is that right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I believe they cited the Bushey case.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. All right. The only case citation in your opinion was to the District Court opinion, because you were simply adopting what the District Court had said rather than doing your own analysis of the issues. And I think that is right, but you can correct me if I am wrong. I would be happy to be corrected. But didn't the District Court say that this was actually a very unusual case? This is how the District Court put it. ``This case presents the opposite scenario of the usual challenge to an employment or promotional examination as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for their refusal to use those results.'' Now, this seems complicated I know, but you know more about it than probably anybody here in this room. The District Court cited three Second Circuit precedents, but did not two of them, the Kirkland and the Bushey cases-- didn't they deal with race norming of test scores, which did not occur in this case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. They dealt with when employees could prove a disparate impact of a case, and it would be----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. But based upon race norming.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. But the principles underlying when employees could bring a case are the same when they establish a prima facie case, which is can an employee be sued--employer be sued by employees who can prove a disparate impact. And the basic principles of those cases were the same regardless of what form the practice at issue took.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. All right. Well, the third case, the Hayden case, didn't it present a challenge to the design of the employment test rather than the results of the test?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I'm sorry. Say this again.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. The Hayden case, didn't it actually present a challenge to the design of the case rather than the results of the--design of the employment test rather than the results of the test?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Again, regardless of what the challenge is about, what test is at issue, the core holding of that precedent was that if an employee could show a disparate impact from a particular practice or test or activity by an employer, then that employee had a prima facie case of liability under Title VII. So the question is, was the city subject to potential liability because the employees, the city of New Haven, because the employees could bring a suit under established law challenging that the city of New Haven had violated Title VII. So that was the question.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. All right, as one of the reasons why. It is a very important case. When the Second Circuit considered whether to review the decision en banc, didn't you join an opinion admitting that the case presents ``difficult issues? ''
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, the District Court noted that it was a different scenario, but it evaluated its decision--it evaluated the case in a 78-page decision, and gave a full explanation, one which the panel agreed with my adopting the opinion of the District Court. Those questions, as I indicated, are always whether, given the risk the city was facing, the fact that it could face a lawsuit and its conclusion that perhaps a better test could be devised that would not have a disparate impact, whether it was liable for discrimination--disparate--not disparate--different treatment under the law. The Supreme Court came back and said, new standard. As I understood the dissenters in that case, what they were saying is, to the majority, if you're going to apply a new standard, then give the Second Circuit a chance to look at the record and apply that standard. It wasn't disagreeing that the circuit wasn't applying the law as it was understood at the time. The dissenters, as I read what they were doing, were saying, send it back to the circuit and let them look at this in the first instance.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Well, as I understand it, Judge Cabranes basically did not know the decision was done until he read it in the newspaper and then asked to look at it. His opinion, joined by five other judges, supporting en banc review, opens with these words, ``This appeal raises important questions of first impression in our circuit, and, indeed, in the Nation, regarding the implication of the Fourteenth Amendment and Title VII's prohibition on discriminatory employment practices.'' Was he wrong?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That was his view. He expressed it in his opinion on his vote. I can't speak for him. I know that the panel----
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I am just asking you to speak for you. Look, when the Supreme Court reversed you, Justice Kennedy wrote, ``This action presents two provisions of Title VII to be interpreted and reconciled with few, if any, precedents in the Courts of Appeals discussing the issue.'' He was referring to the lack of precedent anywhere in the country, not just the Second Circuit. Was he wrong?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. He was talking about whether--I understood him to be talking about not whether the precedent that existed would have determined the outcome as the panel did, but whether the Court should be looking at these two provisions in a different way to establish a choice--a different choice in considerations by the city. As I indicated, that argument about what new standard or new approach to the questions that the city should consider before it denies certification of a test, yes, had not been addressed by other courts. But the ability of a city, when presented with a prima facie case, to determine whether or not it would attempt to reach a non-disparate impact have been recognized by the courts.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. Even the District Court felt that this was an unusual case. And if there was little or no Second Circuit precedent directly on point for a case like this--one of the questions I had is why did your panel not just do your own analysis and your own opinion? Judge Cabranes pointed out that the per curiam approach that simply adopts the District Court's reasoning is reserved for cases that involve only ``straightforward questions that do not require explanation.'' As I asked you about a minute ago, you yourself joined an opinion regarding rehearing, saying the case raised difficult questions. Now, the issue I am raising is why did you not analyze the issues yourself and apply what law existed to the difficult and perhaps unprecedented cases or issues in the case? And whether you got it right or wrong--and the Supreme Court did find that you got it wrong because they reversed--I just can't understand the claim that you were just sticking to binding, clear, longstanding precedent when all of that was part of the total decision and all nine justices found it to be a flaw that you did not give serious, adequate consideration to what really turned out to be a case at first impression. It is easy always to look at these things in retrospect, and you are under a lot of pressure here. But I just wanted to cover that case because I think it is important that that case be covered. And I think it is also important for you to know how I feel about these type of cases, and I think many here in the U.S. Senate. These are important cases. These are cases where people are discriminated against. Let me just make one last point here. You have nothing to do with this, I know. But there is a rumor that people for the American Way, that this organization has been smearing Frank Ricci, who is only one of 20 plaintiffs in this case, because he may be willing to be a witness in these proceedings. I hope that is not true, and I know you have nothing to do with it. So don't think I am trying to make a point against you. I am not. I am making a point that that is the type of stuff that does not belong in Supreme Court nomination hearings, and I know you would agree with me on that.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Absolutely, Senator. I would never, ever endorse, approve or tolerate, if I had any control over individuals, that kind of conduct.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. I believe that, and I want you to know I have appreciated this little time we have had together.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much, Mr. Chairman. I'm puzzled why Mr. Estrada keeps coming up. Mr. Estrada had no judicial experience. The nominee before us has considerable judicial experience. Mr. Estrada wouldn't answer questions presented to him. This nominee I think has been very straightforward. She has not used catchy phrases, she has answered the questions directly the best she could, and to me that gets points. I must say that if there is a test for judicial temperament, you pass it with an A++. I want you to know that because I wanted to respond and my adrenaline was moving along and you have just sat there very quietly and responded to questions that in their very nature are quite provocative. So I want to congratulate you about that. Now, it was just said that all nine Justices disagreed with you in the Ricci case. But I want to point out that Justice Ginsburg and three other Justices stated in the dissent that the Second Circuit decision should have been affirmed. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much. Also a Senator made a comment about the Second Circuit not being bound in the Ricci case that I wanted to follow up on because I think what he said was not correct. You made the point that the unanimous Ricci panel was bound by Second Circuit precedent, as we have said. The Senator said that you easily could have overruled that precedent by voting for the case to be heard en banc. First, my understanding is that a majority of the Second Circuit voted not to rehear the case. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's correct.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Second, it took a significant change in disparate impact law to change the result of the Second Circuit reached in this case. The Supreme Court itself in Ricci recognized that it was creating a new standard. Is my understanding correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, Senator.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. You see? So what is happening here, ladies and gentlemen and members, is that this very reserved and very factual and very considered nominee is being characterized as being an activist when she is anything but. I have a problem with this because some of it is getting across out there, calls begin to come into my office. Wow, she's an activist. In my view because you have agreed with your Republican colleagues on constitutional issues some 98 percent of the time, I don't see how you can possibly be construed to be an activist. By your comments here, and as I walked in the room earlier, somebody asked you how you see your role and you said, `to apply the law as it exists with the cases behind it.' That's a direct quote. It's a very clear statement. It does not say oh, I think it's a good idea or it does not say any other cliche. It states a definitive statement. Later you said, `Precedent is that which gives stability to the law.' I think that's a very important statement. What we are talking about here is following precedent. So let me ask you in a difficult area of the law a question. The Supreme Court has decided on more than seven occasions that the law cannot put a woman's health at risk. It said it in Rowe in `73, in Danforth in `76, in Planned Parenthood in `83, in Thornburg in `86, in Casey in `92, in Carhart in 2000 and in Ayotte in 2006. With both Justices Roberts and Alito on the court, however, this rule seems to have changed because in 2007 in Carhart 2, the court essentially removed this basic constitutional right from women. Now here is my question. When there are multiple precedents and a question arises, are all the previous decisions discarded or should the court reexamine all the cases on point?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is somewhat difficult to answer that question because before the court in any one case is a particular factual situation. So how the court's precedent applies to that unique factual situation because often what comes before the court is something that's different than its prior decision. Not always, but often. In the Carhart case, the court looked to its precedence, and as I understood that case, it was deciding a different question which was whether there were other means, safer means and equally effective means for a woman to exercise her right, the procedure at issue in the case. That was, I don't believe, a rejection of its prior precedence. Its prior precedence are still the precedence of the court. The health and welfare of a woman must be a compelling consideration.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. So you believe that the health of the woman still exists?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You mentioned many cases. It has been a part of the court's jurisprudence and a part of its precedence. Those precedents must be given deference in any situation that arises before the court.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much. I appreciate that. I'd also like to ask you your thoughts on how a precedent should be reviewed. In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedence without acknowledging that they were doing so. Scalia wrote in the Hein case, `Overruling prior precedent is a serious undertaking and I understand the impulse to take a minimalist approach. But laying just claim to be honoring Stare Decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever and yet somehow technically alive.' In Wisconsin, Right to Life v. FEC, he said that Chief Justice Roberts' opinion, `Effectively overruled a 2003 decision without saying so,' and said this kind of quote follow judicial restraint was really `judicial obfuscation.' Here is the question. When the court decides to overrule a previous decision, is it important that it do so outright and in a way that is clear to everyone?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Doctrine of Starry Decisis which means stand by a decision, stand by a prior decision, has a basic premise. That basic premise is that there is a value in society to predictability, consistency, fairness, evenhandedness in the law. This society has an important expectation that judges won't change the law based on personal whim or not. But they will be guided by a humility they should show and the thinking of prior judges who have considered weighty questions and determined as best as they could given the tools that they had at the time to establish precedent. There are circumstances under which a court should reexamine precedent and perhaps change its direction or perhaps reject it. But that should be done very, very cautiously and I keep emphasizing the verys because the presumption is in favor of deference to precedent. The question then becomes what are the factors you use to change it, and then courts have looked at a variety of different factors, applying each in a balance in determining where that balance falls at a particular moment. It is important to recognize, however, that the development of the law is step by step, case by case. There are some situations in which there is a principled way to distinguish precedent from application to a new situation. No, I do not believe a judge should act in an unprincipled way, but I recognize that both the Doctrine of Starry Decisis starts from a presumption that deference should be given to precedence and that the development of the law is case by case. It is always a very fine balance.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much. I appreciate that. I wanted to ask a question on Executive Power and national security. We have seen the executive branch push the boundaries of power claiming sweeping authority, to disregard acts of Congress. That's one way to collect communications of Americans without warrants and to detain people indefinitely without due process. Now, the President and literally hundreds of signing statements affixed to a signature on a bill indicated part of a bill that he would in essence disregard. He didn't veto the bill, he signed the bill and said but there are sections that I--in so many words, will disregard. Most egregiously in 2005 when Congress passed a bipartisan bill banning torture, President Bush signed it. But he also issued a signing statement saying he would only enforce the law, `Consistent with the Constitutional authority of the President to supervise the unitary executive branch consistent with the Constitutional limitations on the judicial power.' In other words, although he signed the bill, it was widely interpreted that he was asserting the right not to follow it. Does the Constitution authorize the President to not follow parts of laws duly passed by the Congress that he is willing to sign that he believes are an unconstitutional infringement on executive authority.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's a very broad question.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. It is one that we are grappling with, though.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And that is why I have to be very cautious in answering it.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. That's fine.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Because not only is Congress grappling with this issue, but so are courts by claims being raised by many litigants who are asserting whether they are right or wrong would need to be addressed in each individual case that the President in taking some activity against the individual has exceeded Congress' authorizations or his powers. The best I can do in answering your question because there is so many pending cases addressing this issue in such a different variety of ways is to say that the best expression of how to address this in a particular situation was made by Justice Jackson in his concurrence in the Youngstown seizure cases. That involved President Truman's seizure of seal factories. There, Justice Jackson has sort of set off the framework and articulation that no one has thought of a better way to make it. He says that you always have to look at an assertion by the president that he or she is acting within executive power in the context of what Congress has done or not done. He always starts with first you look at whether Congress has expressly or implicitly addressed or authorized the president to act in a certain way. If the President has, then he is acting at his highest statute of power. If the President is acting in prohibition of an express or implied act of Congress, then he is working at his lowest edge. If he is acting where Congress hasn't spoken, then we are in what Justice Jackson called the Zone of Twilight. The issue in any particular case is always starting with what Congress says or has not said and then looking at what the Constitution has, what it says about the powers of the President minus Congress' powers in that area. You can't speak more specifically than that in response to your statement that we are part of your question, other than to say the President can't act in violation of the Constitution. No one is above the law. But what that is in a particular situation has to be looked at in the factual scenario before the court.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much. This is really very relevant to what we do and we have often discussed this Jackson case or the steel case. But we just recently passed a Foreign Intelligence Surveillance Act and one of the amendments, because I did the amendment, was to strengthen the exclusivity clause of the law which has been in the bill since the beginning but that there are no exceptions from which the President can leave the four corners of this bill. So it will remain to be seen how that works out over time. But I can certainly say to you that it's a most important consideration as we've looked at these matters of national security. So let me ask you this. You joined a second circuit opinion last year that held that the executives should not forbid companies that received national security letters to tell the public about those letters. The panel's opinion in the case said, `The national security context in which NSL are authorized imposes on courts a significant obligation to defer to the judgments of executive branch officials.' But also that under no circumstance should the judiciary become the hand maiden of the executive. That's Doe v. Mukasey. Given that the executive branch has responsibility of protecting the national security, how should courts balance the executive branch's expertise in national security matters with the judicial branches constitutional duty to enforce the Constitution and prevent abuse of power.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can talk about what we did in Doe as reflective of the approach that we used in that case. It is difficult to talk about an absolute approach in any case.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I understand.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Because each case presets its own actions by parties in its own set of competing considerations often. In Doe, the District Court had invalidated the Congressional statute all together, reasoning that the statute violated the Constitution in a number of different ways and that those violations did not authorize Congress to act in the manner it did. As the panel said that decision recognizing that deference to the executive is important in national security questions. In deference to Congress because the District Court was validating an Act of Congress. We had, as an appellate court, to be very cautious about what we were doing in this area and to balance and keep consistent with constitutional requirements the actions that were being taken. Giving back due deference, we upheld most of the statute. What we did was address two provisions of the statute that didn't pass in our judgment, constitutional muster. One of them was that the law as Supreme Court precedence had commanded required that if the government was going to stop an individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step. The statute instead required the individual who was restricted to come and challenge the restriction. We said no, government is acting. You have a right to speak. If you have a right to speak, you should know what the grounds for that right are and you should be told or brought to court to be given an opportunity to have that restriction lifted. The other was a question of who wore the burden of supporting that restriction and the statute held that it was the individual who was being burdened who had to prove that there wasn't a reason for it. The government agreed with our court that that burden violated Supreme Court precedent and the premises of freedom of speech and agreed that the burden should not be that way and we read the statute to explain what the proper burden was. There is in all of these cases a balance and deference that is needed to be given to the executive and to Congress in certain situations. But we are a court that protects the Constitution and the rights of individuals under it and we must ensure and act with caution whenever reviewing a claim before us.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you very much. One question on the Commerce clause in the Constitution. That clause as you well know is used to pass laws in a variety of contexts, from protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples. When I questioned now Chief Justice Roberts, I talked about how for 60 years the court did not strike down a single Federal law for exceeding Congressional power under the Commerce clause. In the last decade, however, the court has changed its interpretation of the Commerce clause and struck down more than three dozen case. My question to the Chief Justice and now to you is do you agree with the direction the Supreme Court has moved in more narrowly interpreting Congressional authority to enact laws under the Commerce clause? General, not relating to any one case.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, I know. But the question assumes a prejudgment by me of what is an appropriate approach or not in a new case that may come before me as a Second Circuit judge or again if I'm fortunate enough to be a Justice on the Supreme Court. So it is not a case I can answer in a broad statement. I can say that the court in reviewing congressional acts as it relates to an exercise of powers under the Commerce clause has looked at a wide variety of factors and considered that in different areas. But there is a framework that those cases have addressed, and that framework would have to be considered with respect to each case that comes before the court. Now, I know that you mentioned a number of different cases and if you have one in particular that concerns you, perhaps I could talk about what the framework is that the court established in those cases.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I will give you one very quickly. Restricting the distance that somebody could bring a gun close to a school.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Gun Free Zone School Act which the court struck down with Lopez.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Right, Lopez.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In that case and in some of its subsequent cases, the court was examining as I mentioned a wide variety of factors. They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision as an element of the crime and then considered whether there was a substantial effect on commerce. It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the factors that it was looking at to find that that particular statute was within Congress' powers. That is the basic approach it has used to other statutes it has looked at. I would note that its most recent case in this area, the Raich case. The court did uphold a crime that was non-economic in the sense of that it involved just the possession of marijuana. There it looked at the broader statute in which that provision was passed and the intent of Congress to regulate a market in illegal drugs. So the broad principles established in those cases have been the court's precedent. Its most recent holding suggests that another factor purports to look at and each situation will provide a unique factual setting that the court will apply those principles to.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. One last question on that point. One of the main concerns is that this interpretation which is much more restrictive now could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act or anything that we might even do with cap and trade.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In fact there are cases pending before the courts raising those arguments. So those are issues that the courts are addressing. I can't speak much more further than that because of the restrictions on me.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. I understand. It is just that Congress has to have the ability to legislate. In those general areas it is the Commerce clause that enables that legislation. Now as you pointed out, you did revise the Lopez case and make specific findings and perhaps with more care toward the actual findings that bring about the legislative conclusion that we might be able to continue to legislate in these areas, but my hope is that you would go to the court with the sensitivity that this body has to be able to legislate in those areas. They involve all of the states and they are very important questions involving people's well being, control of the environment, the air, the water, et cetera.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I do believe that in all of the cases the court has addressed this issue that it pays particular attention to congressional findings. I know that individuals may disagree with what the court has done in individual cases, but it has never disavowed the importance of deference to legislative findings with respect to legislation that it is passing within its powers under the Constitution.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you. I wish you best of luck. Thank you very much.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Mr. Chairman, I want to correct one thing. I said I had a letter earlier from Miguel Estrada. That was not correct. It wasn't a letter.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. If we could have a copy of whatever you put in the record. I did send Mr. Estrada a note last night about my earlier statement.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, we both made an error talking about it.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. We should remember that Mr. Estrada is not the nominee here, just as with all the statements made about President Obama's philosophy, his confirmation hearing was last November, not now. It is just you, Judge Sotomayor, and have a good lunch and we will come back. Who is next? Senator Grassley will be recognized when we come back in and we will start right at 2:00. [Whereupon, at 12:32 p.m., the hearing was recessed.] After Recess [2 p.m.] Chairman Leahy. Judge, I once, on a television interview, said if I could do anything I wanted to do in life, I said, well, if I ever have to work for a living I want to be a photographer, because I do. At which point, 2 minutes after the interview, the phone rings. My mom was still alive. She called. She said, don't you ever say that. They'll think you don't work! [Laughter.] Chairman Leahy. Actually, I don't. I just recognize Senators here. You're doing all the work, and I appreciate how well you're doing it. I turn, next, to Senator Grassley, and then after Senator Grassley, to Senator Feingold.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Senator Grassley. Yes. Welcome once again, Judge. I hope you had a good break. I appreciate very much the opportunity to ask you some questions. I'd like to start off my round with some questions about your understanding of individual property rights and how they're protected by the Constitution. And let me say, as I observe property rights around the world, there's a big difference between developed nations and developing nations, and respect for private property has a great deal to do with the advancement of societies. So I believe all Americans care about this right. They want to protect their homes and anything they own from unlawful taking by government. But this is also a right that is important for agricultural interests. As you know, besides being a Senator, I come from an agricultural State in Iowa and am a farmer as well. I'm sure that ordinary Americans, besides the economic interests that might be involved, are all very well concerned about where you stand on property rights. So some of these issues have been discussed, but I want to go into a little more depth on Kelo, as an example. Could you explain what your understanding is of the state of the Fifth Amendment's Taking Clause jurisprudence after the Supreme Court decision in Kelo? Senator Brownback said this, aptly, when Chief Justice Roberts was before this committee: ``Isn't it now the case that it is much easier for one man's home to become another man's castle? '' Your general understanding of the Taking Clause.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Good afternoon, Senator Grassley. And it's wonderful to see you again.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Thank you.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I share your view of the importance of property rights under the Constitution. As you know, I was a commercial litigator that represented national and international companies, and it wasn't even the case that it was a difference between developed and under-developed countries. Many of my clients who were from developed countries chose to, in part, to invest in the United States because of the respect that our Constitution pays to property rights in its various positions, in its various amendments. With respect to the Kelo question, the issue in Kelo, as I understand it, is whether or not a State who had determined that there was a public purpose to the takings under the Takings Clause of the Constitution that requires the payment of just compensation when something is--is condemned for use by the government, whether the Takings Clause permitted the State, once it's made a proper determination of public purpose and use according to the law, whether the State could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose? And so the holding, as I understood it in Kelo, was a question addressed to that issue. With respect to the importance of property rights and the process that the State must use, I just point out to you that in another case involving that issue that came before me in a particular series of cases that I had involving a village in New York, that I--I ruled in favor of the property rights--the property owner's rights to challenge the process that the State had followed in his case and to hold that the State had not given him adequate notice of their intent to use the property-- well, not adequate notice not to use the property, but to be more precise, that they hadn't given him an adequate opportunity to express his objection to the public taking in that case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Could I zero in on two words in the Kelo case? The Constitution uses the word ``use'', ``public use'', whereas the Kelo case talked about taking private property for public purpose. In your opinion, is public use and public purpose the same thing?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, as I understood the Supreme Court's decision in Kelo, it was looking at the court's precedents over time and determining that its precedents had suggested that the two informed each other, that public purpose in terms of developing an area that would have a public improvement and use, that the two would inform each other.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Do you believe that the Supreme Court overstepped their constitutional authorities when they went beyond the words of the Constitution, in other words, to the word ``purpose'', and thus expanded the ability of government to take an individual's private property? Because I think everybody believes that Kelo was an expansion of previous precedent there.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I know that there are many litigants who have expressed that view, and in fact there's been many State legislators that have passed State legislation not permitting State governments to take in the situation that the Supreme Court approved of in Kelo. The question of whether the Supreme Court overstepped the Constitution, as I've indicated, the court--at least my understanding of the majority's opinion--believed and explained why it thought not. I have to accept, because it is precedent, that as precedent and so I can't comment further than to say that I understand the questions and I understand what State legislatures have done----
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And would have to await another situation, or the court would, to apply the holding in that case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Then I think that answers my next question, but it was going to be to ask you whether you think that Kelo improperly undermines the constitutionally protected private property rights. I presume you're saying that you believe that's what the court said and it doesn't undermine property rights?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can only talk about what the--the court said in the context of that particular case and to explain that it is the court's holding, and so it's entitled to stare decisis effect and deference.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But the extent of that has to await the next step, the next cases.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Well, then maybe it would be fair for me to ask you, what is your understanding of the constitutional limitations then on government entity--any government entity taking land for a public purpose?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, that was the subject of much discussion in the Kelo case among the Justices, and with certain Justices in the dissent, hypothesizing that the limits were difficult to see, the majority taking the position that there were limits. As I've indicated to you, opining on a hypothetical is very, very difficult for a judge to do.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And as a potential--as a potential Justice on the Supreme Court, but more importantly as a Second Circuit Judge still sitting, I can't engage in a question that involves hypotheses.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Let me ask you a couple obvious, then. Does the--does the Constitution allow for takings without any compensation?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, it--the Constitution provides that when the government takes it has to pay compensation. As you know, the question of what constitutes an actual taking is a very complex one because there is a difference between taking a home and regulation that may or may not constitute a taking. So I'm not at all trying to not answer your question, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Well, then let me ask you another question that maybe you can answer. Would you strike down a takings that provided no compensation at all?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, as I explained, if the taking violates the Constitution, I would be required to--to strike it down.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Let me move on to the Didden case v. Village of Port Chester. It raised serious concerns about whether you understand the protection provided by the Constitution for individual property rights. In this case, Mr. Didden alleged that his local village government violated his Fifth Amendment rights when it took his property to build a national-chain drugstore. At a meeting with a government agency, another developer, Mr. Didden was told that he could give the developer $800,000 or a 50 percent interest in his pharmacy project, and if Mr. Didden did not accept either condition, the government would simply take his property. Two days after Mr. Didden refused to comply with these demands, the government began proceeding to take his land. The District Court denied Mr. Didden his day in court, and your panel affirmed that decision in a five-paragraph opinion. Why did you deny Mr. Didden his day in court? How can these facts--in essence, allegations of extortion--at least not warrant the opportunity to call witnesses to see if Mr. Didden was telling an accurate story?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Didden case presented a narrow issue that the court below---- [Interruption by the audience.]
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Officer, remove that man immediately. We will stand in order. We will stand in order. Officers will remove that man. [Laughter.] Chairman Leahy. Again, both Senator Sessions and I have said, as all previous Chairs and Ranking Members of this have said, this is a hearing of the U.S. Senate. The judge deserves respect. Senators asking questions deserve respect. I will order the removal of anyone who disrupts it, whether they are supportive of the nominee or opposed to the nominee, whether they are supportive of a position I take, or opposed to it. We will have the respect that should be accorded to both the nominee and to the U.S. Senate.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you, Mr. Chairman. I think you've handled this well throughout, and I support you 100 percent.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Senator Grassley, we did stop the clock there so it did not take from your time.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Thank you. People always say I have the ability to turn people on. [Laughter.] Senator Grassley. Maybe you could start over again with your--with your sentence, please.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Now, where were we?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I hope I remember where we were. [Laughter.]
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, the right of property owners to have their day in court is a very important one, but there is a corollary to the right to have your day in court, which is that you have to bring it to court in a timely manner.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Because people who are relying on your assertion of rights should know when you're going to make them. And so there's a doctrine called the Statute of Limitations that says if a party knows, or has reason to know, of their injury, then that party has to come in to court and raise their arguments within that statute that sets the limits of the action.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. I----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In the Didden case--oh, I'm sorry.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. No. No, no, no.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, no, no.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Please, I interrupted you. I shouldn't have interrupted you.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. I--I----
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Please go----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In the Didden case----
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Yeah.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. The question was whether Mr. Didden knew that the State was intending to take his property, and for what it, the State, claimed was a public use and that it had plans to have a private developer take his--they take his property and the private developer develop the land. So there was a full hearing by the village on this question of whether there was a public use of the land. Mr. Didden didn't claim in the action before the courts that he didn't have notice of that hearing, he did not raise a challenge in that hearing to the public taking, and he didn't raise a challenge to the State's intent to have a private developer develop the land. Now, in that case the developer was developing not just Mr. Didden's property, it was one piece of property in a larger development project and that larger development project had been based on the village's conclusions, from its very lengthy hearings in accordance with New York law, that the area was blighted and that the area needed economic development. So, too, that issue became the issue before the court in the sense of, had Mr. Didden, knowing that he could be injured by the State's finding of public use and the State's decision to let a private developer develop this land, did he bring his lawsuit in a timely manner?
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Well----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And the court below, and our court, ruled on that basis, that he hadn't because he had reason to know about the injury that could occasion--that could come to him.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Well, since Mr. Didden's claim was based on conduct of the developer, how could he ever have filed a successful claim under the standard that you just mentioned?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Mr. Didden alleged in his complaint that the private developer had extorted him. Extortion, under the law, is defined as ``an unlawful demand for money''. On this one piece of property within a larger development that the private developer was actively engaged in doing what he had contracted with the State to do, to revive the economic base by making investments in it, the private developer knew that Mr. Didden has his claims. The private developer had his agreement with the State, and so he was doing, in--at least this was the private developer's argument--what he was entitled to do, which is to say, we disagree. I'm claiming that I have a right under contract, you're claiming that you have a right under the Takings Clause. Let's settle this. I am going to lose X amount of money, so you pay me back for me not to do what I'm entitled to do under the law. That, however, was--those were the claims of the parties in the action. In the end, the decision of the court was, if you believe that the takings of your property were not proper under the public use, under the Takings Clause, and you knew that the State had entered a contract with this private developer, then you had knowledge that you could be injured and you should have come to court earlier.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Why was the situation in Didden not the kind of prohibited pretextual taking articulated in Kelo? How was this not some sort of form of extortion? And if there wasn't a pretext in the Didden case where the developer says ``give me the money personally or we'll take your land'', then what is a pretext?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, as I--as I have described the case-- --
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Yes, I understand.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The question comes up in the context of, what did Mr. Didden know? Did he have enough to know he could be injured? Was there no public use to which the property would apply, and what rights did the private developer have with the State? And so the extortion question came up in a legal context surrounding the relative rights of the parties. So as I said, extortion is a term, a legal term, which is someone demanding money with no lawful claim to it. I'm simplifying this because there's different definitions of extortion that apply to different situations.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Sure.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But in the context of this case, that's the simplest description of the case, I believe.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. The Second Circuit panel in Didden took over a year to issue its ruling, suggesting that you understood the novelty and importance of this case. Yet your opinion dealt with Mr. Didden's Fifth Amendment claim in just one paragraph. Did you believe that this was an ordinary takings case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, cases present claims by parties, and to the extent that Mr. Didden was raising claims that sounded in the issues the court was looking at in Kelo, certainly if Kelo had not come out and the court had to--for whatever reason, determined that somehow the Kelo decision affected the Statute of Limitations question, it may have had to reach the question. But courts do often wait for Supreme Courts to act on cases that are pending in order to see if some form of its analysis changes or not, or inform whether a different look should be given to the case. But on the bottom-line issue, Kelo didn't change, in the judgment of the panel, the Statute of Limitations question.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Regardless of the Statute of Limitations, I am curious why you didn't elaborate on your Kelo analysis, and why wasn't this opinion published?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, Kelo didn't control the outcome, the Statute of Limitations did, so there was no basis to go into an elaborate discussion of Kelo. The discussion of Kelo, really, was to say that we had understood the public taking issue that Mr. Didden had spent a lot of time in his argument about, but the ruling was based on the narrow Statute of Limitations ground so the Kelo discussion didn't need to be longer because it wasn't the holding of the case. The holding of the case was the Statute of Limitations.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. This--on another case, the Supreme Court reversed you 6:3 just 3 months ago in Entergy Corporation v. Riverkeeper. You had held that the Environmental Protection Agency, which is the agency with expertise, could not use a cost-benefit analysis in adopting regulations from the construction of water structures that had an impact on fish. Rather, you interpreted the Clean Water Act to hold that EPA had to require upgrades to technology that achieved the greatest reduction in adverse environmental impact, even when the cost of those upgrades were disproportionate to benefit. Following long-established precedent, the Supreme Court held that the EPA was reasonable in applying a cost-benefit analysis when adopting regulations under the Clean Water Act. In reversing, the Supreme Court questioned your proper application of subtle law that agency regulations should be upheld so long as they're reasonable. Under Chevron, agency interpretation of statutes are entitled to deference so long as they are reasonable, in other words, if they aren't capricious and arbitrary. Do you find it unreasonable that the EPA was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. To be able to answer your question I would need to explain a little bit more about the background. The Supreme Court has now ruled in that case that the conclusion of the Second Circuit would not be upheld on this narrow question, but the question the Second Circuit was looking at is, what did Congress intend or mean when, in the statute at issue, it said that the agency had to use the ``best technology available to minimize an adverse environmental impact''. Those were the statute's words. In looking at that, the Circuit applied general statutory construction principles, which is, in our judgment, what was the ordinary meaning of that? And----
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Are you saying you're not bound by Chevron, then?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Oh, no. Absolutely not.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Okay. Go ahead.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Chevron speaks to agency action or interpretation, but ultimately the task of a court is to give deference to what Congress wants. That's the very purpose of Congress' legislation. And so what the court was trying to do there was to see if the agency's interpretation, in light of the words of the statute and how Congress has used cost-benefit analysis in other statutes in this area, and determine what Congress intended. And so we looked at the language and it said just what it said, ``best technology available to minimize adverse environmental impact''. We looked at how Congress used cost-benefit in similar statutes and similar provisions--or I shouldn't say similar, in other provisions. We noted that under the statutes at issue when Congress wanted the agency to use cost-benefit analysis, it said so. In this provision, Congress was silent but the language, in the panel's judgment, was the language. And so in trying to discern what Congress' intent was, we came to the conclusion not that cost had no role in the agency's evaluation, but that Congress had specified a more limited role that cost-benefit. We described it as cost- effectiveness. And, in fact, we voted to--voted past our decision, asked and sent the case back to describe to us exactly what the agency had done, and why. Had it used cost- benefit? Had it used cost-effectiveness? But cost was always going to be a part of what the agency could consider. The issue was more, in what approach did Congress' words intend? And so agency deference is important, but Congress is the one who writes the statutes so you have to start as a court with, what did Congress intend?
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. It seems to me like you're saying, in ignoring the expertise of the statute, that the agency was being arbitrary and capricious in----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Not--not at all, sir. We were trying to look at the statute as a whole and determine what Congress meant by words that appeared to say that ``best technology available had to minimize environmental effect''.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, that does have--and as our opinion said--considerations of cost. But given that Congress didn't use the cost-benefit--give the agency cost-benefit approval in the terms of this particular provision while it had in others, we determined that the agency and precedent interpreting provisions limited the use of cost-benefit analysis.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. In another 2004 administrative law case dealing with environmental issues, NRDC v. Abraham, you voted to strike down a Bush administration regulation and reinstate a Clinton administration environmental rule that had never even become final. In this case it appears you also fairly narrowly interpreted Chevron deference when striking down EPA adoptions of reasonable regulations. If you are elevated to the Supreme Court, do you intend to replace an agency's policy decisions with your own personal policy opinions as it appears you did in both--in the Abraham case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. In that case we were talking about, and deciding, an issue of whether the agency had followed its own procedures in changing policy. We weren't substituting our judgment for that of the agency, we were looking at the agency's own regulations as to the procedure that it had to follow in order to change an approach by the agency. So, that was a completely different question. With respect to deference to administrative bodies, in case after case where Chevron deference required deference, I have voted in favor of upholding administrative--executive and administrative decisions.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. This will probably have to be my last question. Since 2005, you have been presiding judge on the panel of an appeal filed by eight States and environmental groups, arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions. Your panel, in Connecticut v. American Electric Power, has sat on that case for 45 months, or nearly three times the average of the Second Circuit. Why, after 4 years, have you failed to issue a decision in this case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The American Bar Association rule on Code of Conduct does not permit me to talk about a pending case. I can talk to you about one of the delays for a substantial period of time in that decision, and it was that the Supreme Court was considering a case, the Massachusetts case, that had some relevancy, or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case to that decision.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you, Senator Grassley.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Senator Feingold. Judge, let me first say I don't mind telling you how much I'm enjoying listening to you, both your manner and your obvious tremendous knowledge and understanding of the law. In fact, I am enjoying it so much that I hope when you go into these deliberations about cameras in the courtroom, that you consider the possibility that I, and other Americans, would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms. I think it's a---- [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You were a very good lawyer, weren't you, Senator? [Laughter.]
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. But I'm not going to ask you about that one now; others have covered it. Let me get into a topic that I discussed at length with the two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that's the issue of executive power. In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events, and how people from small Midwestern towns and people from New York City found ``their common threads as Americans,'' you said. As you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, there was a sense in those early days of coming together as one community that we would all help each other get through this. It was something that none of us had ever experienced before, and something I've often discussed as well. But what I have also said is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for. So I'm going to ask you some questions that I asked now- Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. September 11th was a horrific tragedy, for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks. The issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just Senators, but the whole nation. In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad: so what's an unreasonable search and seizure? What are other questions are fact-specific. But in answer to your specific question, did it change my view of the Constitution, no, sir. 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 protected us as a nation, it has inspired our survival. That doesn't change.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. I appreciate that answer, Judge. Are there any elements of the government's response to September 11th that you think, maybe 50 or 60 years from now, we as a nation will look back on with some regret?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I'm a historian by undergraduate training. I also love history books. It's amazing how difficult it is to make judgments about one's current positions. That's because history permits us to look back and to examine the actual consequences that have arisen, and then judgments are made. As a Judge today, all I can do, because I'm not part of the legislative branch--it's the legislative branch who has the responsibility to make laws consistent with that branch's view of constitutional requirements in its powers. It's up to the President to take his actions, and then it's up to the court to just examine each situation as it arises.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. I can understand some hesitance on this. But the truth is that courts are already dealing with these very issues. The Supreme Court itself has now struck down a number of post-9/11 policies, and you yourself sat on a panel that struck down one aspect of the National Security Letter statutes that were expanded by the PATRIOT Act. So I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the court's decisions in Rasul, Hamdi, Hamdan, and Boumediene. What is your general understanding of that line of cases?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That the court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. And is it fair to say, given that line of cases, that we can say that, at least as regards the Supreme Court, it believes mistakes were made with regard to post-9/11 policies? Because in each of those cases there was an overturning of a decision made either by the Congress or the executive.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I smiled only because that's not the way that judges look at that issue. We don't decide whether mistakes were made, we look at whether action was consistent with constitutional limitations or statutory limitations.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. And in each of those cases there was a problem with either a constitutional violation or a problem with a congressional action, right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. That's fine. As I'm sure you are aware, many of us on the Committee discussed at length with the prior Supreme Court nominees the framework for evaluating the scope of executive power in the national security context. You already discussed this at some length with Senator Feinstein, including Justice Jackson's test in the Youngstown case. And I and others on the Committee are deeply concerned about the very broad assertion of executive power that has been made in recent years--an interpretation that has been used to authorize the violation of clear statutory prohibitions--from the Foreign Intelligence Surveillance Act, to the anti-torture statute. You discussed with Senator Feinstein the third category, the lowest ebb category in the Youngstown framework, and that's where, as Justice Jackson said, the President's power is at its lowest ebb because Congress has, as you well explained it, specifically prohibited some action. I take the point of careful scholars who argue that, hypothetically speaking, Congress could conceivably pass a law that is plainly unconstitutional. For example, if Congress passed a law that said that somebody other than the President would be the Commander-in-Chief of a particular armed conflict and not subject to Presidential direction, presumably that would be out of bounds. But setting aside such abstract hypotheticals, as far as I'm aware--and I'm pretty sure this is accurate--the Supreme Court has never relied on the Youngstown framework to conclude that the President may violate a clear statutory prohibition. In fact, in Youngstown itself, the court rejected President Truman's plan to seize the steel mills. Now, is that your understanding of the Supreme Court precedent in this area?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I haven't had cases--or a sufficient a number of cases--in this area to say that I can remember every Supreme Court decision on a question related to this topic. As you know, in the Youngstown case, the court held that the President had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time. But the question or the framework doesn't change, which is, each situation would have to be looked at individually because you can't determine ahead of time with hypotheticals what a potential constitutional conclusion will be. As I may have said to an earlier question, academic discussion is just that. It's presenting the extremes of every issue and attempting to debate about, on that extreme of the legal question, how should the judge rule?
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. I'll concede that point, Judge. I mean, given your tremendous knowledge of the law and your preparation, I'm pretty sure you would have run into any example of where this had happened. And I just want to note that I am unaware of--and if anybody is aware of an example of where something was justified under the President's power under the lowest ebb, I'd love to know about it. But I think that's not a question of a hypothetical, that's a factual question about what the history of the case law is.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can only accept your assumption. As I said, I--I have not had sufficient cases to--to--to have looked at what I know in light of that particular question that you're posing.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. All right. In August 2002, the Office of Legal Counsel at the Department of Justice issued two memoranda considering the legal limits on interrogation of terrorism detainees. One of these contained a detailed legal analysis of the criminal law prohibiting torture. It concluded, among other things, that enforcement of the anti-torture statute would be an unconstitutional infringement on the President's Commander-in- Chief authority. Judge, that memo did not once cite to the Youngstown case or to Justice Jackson's opinion in Youngstown. We just learned on Friday, in a new Inspector General report, that a November 2001 OLC memo providing the legal basis for the so-called Terrorist Surveillance Program also did not cite Youngstown. Now, I don't think you would have to be familiar with those memos to answer my question. Does it strike you as odd that a complex legal analysis of the anti-torture statute, or the FISA Act, that considers whether the President could violate those statutes would not even mention the Youngstown case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I have never been an advisor to a President. That's not a function I have served, so I don't want to comment on what was done or not done by those advisors in that case. And it's likely that some question--and I know some are pending before the court in one existing case, so I can't comment. All I can--on whether that's surprising or not. I can only tell you that I would be surprised if a court didn't consider the Youngstown framework in a decision involving this question because it is--that case's framework is how these issues are generally approached.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Good. I appreciate that answer. Let me go to a topic that Senator Leahy and Senator Hatch discussed with you at some length: the Second Amendment. I have long believed that the Second Amendment grants citizens an individual right to own firearms. Frankly, I was elated when the court ruled in Heller last year, and unified what I think had been a mistake all along and recognized it as an individual right. The question of whether Second Amendment rights are incorporated in the Fourteenth Amendment's guarantee of due process of law, and therefore applicable to the states, as you pointed out, was not decided in Heller. A Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government. So in my view, it is unremarkable that, as a Circuit Court judge in the Maloney case, you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's would be an unfair criticism of a case, and I think you needed to rule that way, given the state of the law. But let me move on from that, because many of my constituents would like to know more about how you would make such a decision as a member of the highest court, so I want to follow up on that. First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, sir. My own judgment is that it would seem odd, indeed, if any Justice would sit in review of a decision that they authored. I would think that the Judicial Code of Ethics that govern recusals would suggest and command that that would be inappropriate.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Fair enough. What about if one of the other pending appeals comes to the court, such as the Seventh Circuit decision in NRA v. Chicago, which took the same position as your decision in Maloney? Would you have to recuse yourself from that one as well?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There are many cases in which a Justice, I understand, has decided cases as a Circuit Court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the Justices to determine whether or not I--that would counsel to--to recuse myself. I would just note that many legal issues, once they come before the court, present a different series of questions than the one one addresses as a Circuit Court.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Well, let's assume you were able to sit on one of these cases or a future case that deals with this issue of incorporating the right to bear arms as applied to the states. How would you assess whether the Second Amendment, or any other amendment that has not yet been incorporated through the Fourteenth Amendment, should be made applicable to the States? What's the test that the Supreme Court should apply?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's always the issue that litigants are arguing in litigation. So to the extent that the Supreme Court has not addressed this question yet, and there's a strong likelihood it may in the future, I can't say to you that I've prejudged the case and decided this is exactly how I'm going to approach it in that case.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. But what would be the general test for incorporation?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well----
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. I mean, what is the general principle?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. One must remember that the Supreme Court's analysis in its prior precedent predated its principles of--or the development of cases discussing the incorporation doctrine. Those are newer cases, and so the framework established in those cases may well inform.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, I--I am hesitant of prejudging and saying they will or won't, because that will be what the parties are going to be arguing in the litigation.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Well, it----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But it is--I'm sorry.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. No, no. Go ahead.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken--has been more recent, and those cases, as well as stare decisis and a lot of other things, will inform the court's decision on how it looks at a new challenge to a State regulation.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. And, of course, it is true that despite that trend that you just described, the Supreme Court has not incorporated several constitutional amendments as against the states, but most of those are covered by constitutional provisions and state constitutions, and the Supreme Court decisions that refuse to--incorporate the federal constitutional protections like the case involving the Second Amendment, a 19th century case, date back nearly a century. So after Heller, doesn't it seem almost inevitable that when the Supreme Court again considers whether the Second Amendment applies to the states, it will find the individual right to bear arms to be fundamental, which is a word that we've been talking about today? After all, Justice Scalia's opinion said this: ``By the time of the founding, the right to have arms--bear arms had become fundamental for English subjects.'' Blackstone, whose works we have said constituted the preeminent authority on English law for the founding generation, cited the arms provision in the Bill of Rights as one of the fundamental rights of Englishmen. ``It was,'' he said, ``the natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defense.''
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said earlier, you are a very eloquent advocate. But a decision on what the Supreme Court will do and what's inevitable will come up before the Justices in great likelihood in the future, and I feel that I'm threading the line----
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. Of answering a question about what the court will do in a case that may likely come before it in the future.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Let me try it in a more--less lofty way then. [Laughter.] Senator Feingold. You talked about nunchucks before.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Okay. [Laughter.]
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. That's an easier kind of case. But what Heller was about, was that there was a law here in DC that said you couldn't have a handgun if you wanted to have it in your house to protect yourself. It is now protected under the Constitution that the citizens of the District of Columbia can have a handgun. Now, what happens if we don't incorporate this right and the people of the State of Wisconsin--let's say we didn't have a constitutional provision in Wisconsin. We didn't have one until the 1980s, when I and other State Senators proposed that we have a right to bear arms provision. But isn't there a danger here that if you don't have this incorporated against the States, that we'd have this result where the citizens of DC have a constitutional right to have a handgun, but the people of Wisconsin might not have that right? Doesn't that make it almost inevitable that you would have to apply this to the states?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's a question the court will have to consider.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. I appreciate your patience.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And it's meaning---- [Laughter.] Judge Sotomayor. Senator, 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. In whatever new cases come before me that don't involve incorporation as a Second Circuit judge, I would have to consider those--those issues in the context of a particular State regulation of firearms or other instruments.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. I accept that answer. I'm going to move on to another area, what I'd like to call ``secret law'', that is, the development of controlling legal authority that has direct effects on the rights of Americans but that is done entirely in secret. There are two strong examples of that. First, the FISA court often issues rulings containing substantive interpretation of the Foreign Intelligence Surveillance Act, or FISA, that with very few exceptions have been kept from the public, and until a recent change in the law, many of them were not available to the full Congress either, meaning that members had been called upon to vote on statutory changes without knowing how the court had interpreted the existing statute. Second, the Office of Legal Counsel at the Justice Department issues legal opinions that are binding on the executive branch, but are also often kept from the public and Congress. Now, I understand that these legal documents may sometimes contain classified operational details that would need to be redacted, but I'm concerned that the meaning of a law like FISA, which directly affects the privacy rights of Americans, could develop entirely in secret. I think it flies in the face of our traditional notion of an open and transparent American legal system. Does this concern you at all? Can you say a little bit about the importance of the law itself being public?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, the question for a judge as a judge would look at it, is to examine, first, what policy choices the Congress is making in its legislation. It is important to remember that some of the issues that you are addressing were part of congressional legislation as to how FISA would operate. And as you just said, there's been amendments subsequent to that, and so a court would start with what Congress has--what Congress has done and whether the acts of the other branch of government is consistent with that or not. The issue of whether, and how, a particular document would affect national security or affect questions of that nature would have to be looked at in--with respect to an individual case. And as I understand it, there are review processes in the FISA procedure. I'm not a member of that court, so I am not intimately familiar with those procedures, but I know that this is part of the review process there, in part. And so when you ask concern, there is always some attention paid to the issue of--of the public reviewing or looking at the actions that a court is taking, but that also is tempered with the fact that there are situations in which complete openness can't be had, for a variety of different reasons. So courts--I did as a District Court judge and I have as a Circuit Court judge--looked at situations in which judges have to have determined whether juries should be empaneled anonymously, and in those situations we do consider the need for public actions, but we also consider that there may be, in some individual situations, potential threats to the safety of jurors that require an anonymous jury. I am attempting to speak about this as--it's always a question of balance----
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. What most concerns----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. And you have to look at, first, what Congress says about that.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. The concerns you just raised, don't they have to do more with the facts that shouldn't be revealed than the legal basis? It's sort of hard for me to imagine a threat to national security by revealing properly redacted documents as simply referred to the legal basis for something. Isn't there a distinction between those two things?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can't--it's difficult to speak from the abstract, in large measure, because as I explained, I've never been a part of the FISA court and so I've never had the experience of reviewing what those documents are and whether they, in fact, can be redacted or not without creating risk to national security. One has to think about what the--what explanations the government has. There's so many issues a court would have to look at.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Let me go to something completely different. There's been a lot of talk about this concept of empathy. In the context of your nomination, a judge's ability to feel empathy does not mean the judge should rule one way or another, as you well explained. But I agree with President Obama that it's a good thing for our country for judges to understand the real-world implications of their decisions and the effects on regular Americans, and to seek to understand both sides of an issue. Judge, your background is remarkable. As you explained yesterday, your parents came to New York from Puerto Rico during World War II, and after your father died your mother raised you on her own in a housing project in the South Bronx. You are a lifelong New Yorker and a Yankee fan, as I understand it. But many Americans don't live in big cities. Many of my constituents live in rural areas and small towns--and they root for the Brewers and the Packers. Some might think that you don't have a lot in common with them. What can you tell me about your ability as a judge to empathize with them--to understand the everyday challenges of rural and small-town Americans and how Supreme Court decisions might affect their lives?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, I live in New York City and it is a little different than other parts of the country, but I spend a lot of time in other parts of the country. I've visited a lot of States. I've stayed with people who do all types of work. I've lived on--not lived, I've visited and vacationed on farms. I've lived and vacationed in mountaintops. I've lived and vacationed in all sorts--not lived. I'm using the wrong word. I've visited all sorts of places. In fact, one of my habits is, when I travel somewhere new, I try to find a friend I know to stay with them. And it's often not because I can't afford a hotel--usually the people who are inviting me would be willing to pay--but it's because I do think it's important to know more than what I live and to try to stay connected to people and to different experiences. I don't think that one needs to live an experience without appreciating it, listening to it, watching it, reading about it, all of those things, experiencing it for a period of time, help judges in appreciating the concerns of other experiences that they don't personally have. And as I said, I try very, very hard to ensure that, in my life, I introduce as much experience with other people's lives as I can.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. I realize I'm jumping back and forth to these issues, but the last one I want to bring up has to do with wartime Supreme Court decisions like Korematsu that we look back at with some bewilderment. I'm referring, of course, Korematsu v. United States, the decision in which the Supreme Court upheld the government policy to round up and detain more than 100,000 Japanese-Americans during World War II. It seems inconceivable that the U.S. Government would have decided to put huge numbers of citizens in detention centers based on their race, and yet the Supreme Court allowed that to happen. I asked Chief Justice Roberts about this, and I'll ask you as well: Do you believe that Korematsu was wrongly decided?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It was, sir.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Does a judge have a duty to resist the kind of war-time fears that people understandably felt during World War II, which likely played a role in the 1944 Korematsu decision?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. A judge should never rule from fear. A judge should rule from law and the Constitution. It is inconceivable to me today that a decision permitting the detention/arrest of an individual solely on the basis of their race would be considered appropriate by our government.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Now, some of the great justices in the history of our country were involved in that decision. How does a judge resist those kind of fears?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. One hopes, by having the wisdom of a Harlan in Plessy, by having the wisdom to understand, always, no matter what the situation, that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Thank you, Judge.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Thank you very much, Senator Feingold.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Thank you, Mr. Chairman. Could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Sure. Good afternoon, by the way.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I am sorry?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Good afternoon, by the way.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Yes, good afternoon. You had indicated, of course, if that case were to come before the Court, under the recusal statute you would recuse yourself from participating in the decision.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In that case, yes.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Yes, and you are aware that--or maybe you are not, but there are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit and one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit. The Ninth Circuit has decided it differently, although that case is on rehearing. If the Court should take all three--let's assume the Ninth Circuit stays with its decision so you do have the conflict among the circuits, and the Court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I haven't actually been responding to that question, and I think you're right proposing it. I clearly understand that recusing myself from Maloney would be appropriate. The impact of the joint hearing by the Court would suggest that I would have to apply the same principle, but as I indicated, issues of recusal are left to the discretion of Justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices with respect to a question like this.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Sure. I appreciate that, and I agree with your reading of the law; 28 U.S.C. Section 455 provides, among other things, and I quote, ``Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.'' And that, of course, raises the judge's desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would think--and I would want your responses. I would think that there would be no difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the Court at the same time.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, that is an issue that is different than the question that was posed earlier----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Would you not be willing to make an unequivocal commitment on that at this time?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's impossible to say I will recuse myself on any case involving Maloney. How the other cert. is granted and whether joint argument is presented or not, I would have to await to see what happened.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Let me ask you this: Suppose that the other two cases are considered by the Court, your circuit is not involved; or that the Court takes either the Seventh or Ninth Circuit and decides the question of incorporation of the Second Amendment. I gather that in subsequent decisions you would consider yourself bound by that precedent or that you would consider that to be the decision of the Court on the incorporation question.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Absolutely. The decision of the Court in Heller is--its holding has recognized an individual right to bear arms as applied to the Federal Government.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. If as a result--I mean, that was the matter before your circuit, and if as a result of the fact that the Court decided one of the other or both of the other two circuit cases and resolved that issue so that the same matter would have been before the Court, would it not also make sense for you to indicate to this Committee now that should that same matter come before the Court and you are on the Court, that you would necessarily recuse yourself from its consideration?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I didn't quite follow the start of your question, Senator. I want to answer precisely.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Sure.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But I'm not quite sure----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. You agreed with me that if the Court considered either the Seventh or Ninth Circuit or both decisions and decided the issue if incorporation of the Second Amendment to make it applicable to the States, you would consider that binding precedent of the Court. That, of course, was the issue in Maloney. As a result, since it is the same matter that you resolved in Maloney, wouldn't you have to, in order to comply with the statute, recuse yourself if either or both or all three of those cases came to the Court?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, as I indicated, clearly the statute would reach Maloney. How I would respond to the Court taking certiorari in what case and whether it held--it took certiorari in one or all three is a question that I would have to await to see what the Court decides to do and what issues it addresses in its grant of certiorari. There is also the point that whatever comes before the Court will be on the basis of a particular State statute, which might involve other questions. It's hard to speak about recusal in the abstract because there's so many different questions that one has to look at.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. And I do appreciate that, and I appreciate that you should not commit yourself to a particular decision in a case. If the issue is the same, however, it is simply the question of incorporation, that is a very specific question of law. It does not depend upon the facts. I mean, it did not matter that in your case you were dealing with a very dangerous arm but not a firearm, for example. You still considered the question of incorporation. Well, let me just try to help you along here. Both Justice Roberts and Justice Alito made firm commitments to this Committee. Let me tell you what Justice Roberts said. He said that he would recuse him, and I am quoting now, ``from matters in which he participated while a judge on the court of appeals matters.'' And since you did acknowledge that the incorporation decision was the issue in your Second Circuit case, and the question that I asked was whether if that is the issue from the Ninth and Seventh Circuits, you would consider yourself bound by that. It would seem to me that you should be willing to make the same kind of commitment that Justice Roberts and Justice Alito did.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I didn't understand their commitment to be broader than what I have just said, which is that they would certainly recuse themselves from any matter. I understood it to mean any case that they had been involved in as a circuit judge. If their practice was to recuse themselves more broadly, then obviously I would take counsel from what they did. But I believe, if my memory is serving me correctly--and it may not be, but I think so--that Justice Alito as a Supreme Court Justice has heard issues that were similar to ones that he considered as a circuit court judge. So as I have indicated, I will take counsel from whatever the practices of the Justices are with the broader question of what----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I appreciate that. ``Issues which are similar'' is different, though, from ``an issue which is the same.'' And I would just suggest that there would be an appearance of impropriety. If you have already decided the issue of incorporation one way, that is the same issue that comes before the Court, and then you, in effect, review your own decision, that to me would be a matter of inappropriate-- and perhaps you would recuse yourself. I understand your answer. Let me ask you about what the President said and I talked about in my opening statement, whether you agree with him. He used two different analogies. He talked once about the 25 miles, the first 25 miles of a 26-mile marathon, and then he also said in 95 percent of the cases, the law will give you the answer, and the last 5 percent, legal process will not lead you to the rule of decision; the critical ingredient in those cases is supplied by what is in the judge's heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided what's in the judge's heart?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. That's--I don't--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'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. The judge applies the law to the facts before that judge.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I appreciate that. And has it been your experience that every case, no matter how tenuous it has been, and every lawyer, no matter how good their quality of advocacy, that in every case every lawyer has had a legal argument of some quality to make, some precedent that he cited. It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said, ``I don't have any legal argument to make, Judge. Please go with your heart on this, or your gut'' ?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, I've actually had lawyers say something very similar to that. [Laughter.] Judge Sotomayor. I have had lawyers where questions have been raised about the legal basis of their argument. I had one lawyer throw up his hands and say, ``But it's just not right.'' ``But it's just not right'' is not what judges consider. What judges consider is what the law says.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. You have always been able to find a legal basis for every decision that you have rendered as a judge.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, to the extent that every legal decision has--this is what I do in approaching legal questions, is I look at the law that's being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one--that is a process. You use----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Right, and all I am asking--this is not a trick question.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. I wasn't----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I can't imagine that the answer would be otherwise than, yes, you have always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution, or whatever it might be. You haven't ever had to throw up your arms and say, ``I can't find any legal basis for this opinion, so I am going to base it on some other factor.''
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. When you say, use the words ``some legal basis,'' it suggests that a judge is coming to the process by saying I think the result should be here----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. No, no. I----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor.--and so I'm going to use something to get there.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. No. I am not trying to infer that any of your decisions have been incorrect or that you have used an inappropriate basis. I am simply confirming what you first said in response to my question about the President; that in every case the judge is able to find a basis in law for deciding the case. Sometimes there are not cases directly on point. That is true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous, and you may have to rely upon authority like scholarly opinions in law reviews or whatever. But my question was really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept such as empathy or some other concept other than a legal interpretation or precedent?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Exactly, sir. We apply law to facts. We don't apply feelings to facts.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Right. Now--thank you for that. Let me go back to the beginning. I raise this issue about the President's interpretation because he clearly is going to seek nominees to this Court and other courts that he is comfortable with, and that would imply who have some commonality with his view of the law and judging. It is a concept that I also disagree with, but in this respect, it is-- the speeches that you have given and some of the writings that you have engaged in have raised questions because they appear to fit into what the President has described as this group of cases in which the legal process or the law simply doesn't give you the answer. And it is in that context that people have read these speeches and have concluded that you believe that gender and ethnicity are an appropriate way for judges to make decisions in cases. That is my characterization. I want to go back through the--I have read your speeches, and I have read all of them several times. The one I happened to mark up here is the Seton Hall speech, but it was virtually identical to the one at Berkeley. You said this morning that the point of those speeches was to inspire young people, and I think there is some in your speeches that certainly is inspiring. In fact, it is more than that. I commend you on several of the things that you talked about, including your own background, as a way of inspiring young people. Whether they are minority or not, and regardless of their gender, you said some very inspirational things to them. And I take it that, therefore, in some sense your speech was inspirational to them. But in reading these speeches, it is inescapable that your purpose was to discuss a different issue, that it was to discuss--in fact, let me put it in your words. You said, ``I intend to talk to you about my Latina identity, where it came from, and the influence I perceive gender, race, and national origin representation will have on the development of the law.'' And then after some preliminary and sometimes inspirational comments, you got back to the theme and said, ``The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go, but instead to discuss what it will mean to have more women and people of color on the bench.'' You said, ``No one can or should ignore asking and pondering what it will mean or not mean in the development of the law.'' You cited some people who had a different point of view than yours, and then you came back to it and said, ``Because I accept the proposition that, as Professor Resnick explains, to judge is an exercise of power; and because, as Professor Martha Minow of Harvard Law School explains, there is no objective stance but only a series of perspectives. No neutrality, no escape from choice in judging,'' you said. ``I further accept that our experiences as women and people of color will in some way affect our decisions.'' Now, you are deep into the argument here. You have agreed with Resnick that there is no objective stance, only a series of perspectives, no neutrality--which, just as an aside, it seems to me is relativism run amok. But then you say, ``What Professor Minow's quote means to me is not all women or people of color or all in some circumstances or me in any particular case or circumstance, but enough women and people of color in enough cases will make a difference in the process of judging.'' You are talking here about different outcomes in cases. And you go on to substantiate your case by, first of all, citing a Minnesota case in which three women judges ruled differently than two male judges in a father's visitation case. You cited two excellent studies which tended to demonstrate differences between women and men in making decisions in cases. You said, ``As recognized by legal scholars, whatever the cause is, not one woman or person of color in any one position, but as a group, we will have an effect on the development of law and on judging.'' So you develop the theme. You substantiated it with some evidence to substantiate your point of view. Up to that point, you had simply made the case, I think, that judging could certainly reach--or judges could certainly reach different results and make a difference in judging depending upon their gender or ethnicity. You hadn't rendered a judgment about whether they would be better judgments or not. But then you did. You quoted Justice O'Connor to say that a wise old woman and a wise old man would reach the same decision. And then you said, ``I am also not sure I agree with that statement.'' And that is when you made the statement that is now relatively famous: ``I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion.'' So here you are reaching a judgment that not only will it make a difference but that it should make a difference. And you went on--and this is the last thing that I will quote here. You said, ``In short, I''--well, I think this is important. You note that some of the old white guys made some pretty good decisions eventually--Oliver Wendell Holmes, Cardozo, and others--and you acknowledged that they made a big difference in discrimination cases. But it took a long time, to understand takes time and effort, something not all people are willing to give, and so on. And then you concluded this: ``In short, I accept the proposition that difference will be made by the presence of women and people of color on the bench and that my experiences will affect the facts that I choose to see.'' You said, ``I don't know exactly what the difference will be in my judging, but I accept that there will be some based on gender and my Latina heritage.'' As you said in your response to Senator Sessions, you said that you weren't encouraging that, and you talked about how we need to set that aside. But you didn't in your speech say that this is not good, we need to set this aside. Instead, you seemed to be celebrating it. The clear inference is it is a good thing that this is happening. So that is why some of us are concerned, first with the President's elucidation of his point of view here about judging, and then these speeches, several of them, including speeches that were included in law review articles that you edited that all say the same thing, and that would certainly lead one to a conclusion that, A, you understand it will make a difference and, B, not only are you not saying anything negative about that, but you seem to embrace that difference in concluding that you will make better decisions. That is the basis of concern that a lot of people have. Please take the time you need to respond to my question.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you. I have a record for 17 years. Decision after decision, decision after decision, it is very clear that I don't base my judgments on my personal experiences or my feelings or my biases. All of my decisions show my respect for the rule of law, the fact that, regardless about if I identify a feeling about a case, which was part of what that speech did talk about, there are situations where one has reactions to speeches, to activities. It's not surprising that in some cases the loss of a victim is very tragic. A judge deals with those situations, and acknowledging that there is a hardship to someone doesn't mean that the law commands the result. I have any number of cases where I have acknowledged a particular difficulty to a party or disapproval of a party's action and said, no, but the law requires this. So my views, I think, are demonstrated by what I do as a judge. I am grateful that you took notice that much of my speech, if not all of it, was intended to inspire, and my whole message to those students--and that is the very end of what I said to them--was, ``I hope I see you in the courtroom someday.'' I don't know if I said it in that speech, but I often end my speeches with saying, ``And I hope someday you're sitting on the bench with me.'' And so the intent of the speech, its structure, was to inspire them to believe, as I do, as I think everyone does, that life experiences enrich the legal system. I used the words ``process of judging,'' that experience that you look for in choosing a judge, whether it is the ABA rule that says the judge has to be a lawyer for X number of years, or it's the experience that your Committee looks for in terms of what's the background of the judge. Have they undertaken serious consideration of constitutional questions? All of those experiences are valued because our system is enriched by a variety of experiences. And I don't think that anybody quarrels with the fact that diversity on the bench is good for America. It's good for America because we are the land of opportunity, and to the extent that we are pursuing and showing that all groups can be lawyers and judges, that's just reflecting the values of our society.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. And if I could just interrupt you right now, to me that is the key. It is good because it shows these young people that you are talking to that, with a little hard work, it doesn't matter where you came from; you can make it. And that is why you hope to see them on the bench. I totally appreciate that. The question, though, is whether you leave them with the impression that it's good to make different decisions because of their ethnicity or gender, and it strikes me that you could have easily said in here, ``Now, of course, Blind Lady Justice doesn't permit us to base decisions in cases on our ethnicity or gender. We should strive very hard to set those aside when we can.'' I found only one rather oblique reference in your speech that could be read to say that you warned against that. All of the other statements seem to embrace it, or certainly to recognize it and almost seem as if you are powerless to do anything about it. ``I accept that this will happen,'' you said. So while I appreciate what you are saying, it still doesn't answer to me the question of whether you think that these--that ethnicity or gender should be making a difference.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There are two different, I believe, issues to address and to look at because various statements are being looked at and being tied together. But the speech, as it is structured, didn't intend to do that and didn't do that. Much of the speech about what differences there will be in judging was in the context of my saying or addressing an academic question, all the studies that you reference I cited in my speech, which is that studies, they were suggesting that there could be a difference. They were raising reasons why I was inviting the students to think about that question. Most of the quotes that you had and reference say that. We have to ask this question: Does it make a difference? And if it does, how? And the study about differences in outcomes was in that context. There was a case in which three women judges went one way and two men went the other, but I didn't suggest that that was driven by their gender. You can't make that judgment until you see what the law actually said. And I wasn't talking about what law they were interpreting in that case. I was just talking about the academic question that one should ask.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. If I could just interrupt, I think you just contradicted your speech, because you said in the line before that, ``Enough women and people of color in enough cases will make a difference in the process of judging.'' Next comment: ``The Minnesota Supreme Court has given us an example of that.'' So you did cite that as an example of gender making a difference in judging. Now, look, I am not--I do not want to be misunderstood here as disagreeing with a general look into the question of whether people's gender, ethnicity, or background in some way affects their judging. I suspect you can make a very good case that that is true in some cases. You cite a case here for that proposition. Neither you nor I probably know whether for sure that was the reason, but one could infer it from the decision that was rendered. And then you cite two other studies. I am not questioning whether the studies are not valuable. In fact, I would agree with you that it is important for us to be able to know these things so that we are on guard to set aside prejudices that we may not even know that we have, because when you do judge a case--let me just go back in time. I tried a lot of cases, and it always depended on the luck of the draw what judge you got. Ninety-nine times out of a hundred, it didn't matter. So what? We got Judge Jones. Fine. We got Judge Smith. Fine. It didn't matter because you knew they would all apply the law. In the Federal district court in Arizona, there was one judge you didn't want to get. All of the lawyers knew that, because they knew he had predilections that were really difficult for him to set aside. It is a reality. And I suspect you have seen that on some courts, too. So it is a good thing to examine whether or not those biases and prejudices exist in order to be on guard and to set them aside. The fault I have with your speech is that you not only do not let these students know that you need to set it aside. You don't say that that is what you need this information for. But you almost celebrate it. You say if there are enough of us, we will make a difference--inferring that it is a good thing if we begin deciding cases differently. Let me just ask you one last question here. Have you ever seen a case where, to use your example, the wise Latina made a better decision than non-Latina judges?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. What I've seen----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I mean, I know you like all of your decisions, but---- [Laughter.]
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Let her answer the----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. I was just saying that I know that she appreciates her own decisions, and I don't mean to denigrate her decisions, Mr. Chairman.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I was using a rhetorical riff that harkened back to Justice O'Connor, because her literal words and mine have a meaning that neither of us, if you were looking at it, in their exact words make any sense. Justice O'Connor was a part of a Court in which she greatly respected her colleagues, and yet those wise men--I am not going to use the other word--and wise women did reach different conclusions in deciding cases. I never understood her to be attempting to say that that meant those people who disagreed with her were unwise or unfair judges. As you noted, my speech was intending to inspire the students to understand the richness that their backgrounds could bring to the judicial process in the same way that everybody else's background does the same. I think that's what Justice Alito was referring to when he was asked questions by this Committee, and he said, ``You know, when I decide a case, I think about my Italian ancestors and their experiences coming to this country.'' I don't think anybody thought that he was saying that that commanded the result in the case. These were students and lawyers who I don't think would have been misled either by Justice O'Connor's statement or mine in thinking that we actually intended to say that we could really make wiser and fairer decisions. I think what they could think and would think is that I was talking about the value that life experiences have, in the words I used, in the process of judging. And that is the context in which I understood the speech to be doing. The words I chose, taking the rhetorical flourish, it was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concern. But I have repeated more than once, and I will repeat throughout, if you look at my history on the bench, you will know that I do not believe that any ethnic, gender, or race group has an advantage in sound judging. You noted that my speech actually said that. And I also believe that every person, regardless of their background and life experiences, can be good and wise judges.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. In fact----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Excuse me, if I may, just for the record. I don't think it was your speech that said that, but that is what you said in response to Senator Sessions' question this morning.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. When we get references made to Justice Alito, that was on January 11, 2006. When he said, ``When I get a''--this is Justice Alito speaking. ``When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender, and I do take that into account.'' We will take a 10-minute break. [Whereupon, at 3:37 p.m., the committee was recessed.] After Recess [3:52 p.m.] The Chairman. First off, Judge, I compliment your family. You cannot see them sitting behind you, because they have all been sitting there very attentively, and I have to think that after a while, they would probably rather just be home with you. But I do appreciate it. So we are going to go to Senator Schumer, who did such a good job introducing you yesterday. Senator Schumer?
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Thank you, Mr. Chairman. And thank all of my colleagues. First, I am going to follow-up on some of the line of questioning of Senators Sessions and Kyl, but I would like to, first, thank my Republican colleagues. I think the questioning has been strong, but respectful. I would also like to compliment you, Judge. I think you have made a great impression on America today. The American people have seen today what we have seen when you have met with us one-on-one. You are very smart and knowledgeable, but down to earth. You are a strong person, but also a very nice person. And you have covered the questions thoughtfully and modestly. So now I am going to go on to that line of questions. We have heard you asked about snippets of statements that have been used to criticize you and challenge your impartiality, but we have heard precious little about the body and totality of your 17-year record on the bench, which everybody knows is the best way to evaluate a nominee. In fact, no colleague has pointed to a single case in which you said the court should change existing law, in which you have attempted to change existing law, explicitly or otherwise, and I had never seen such a case anywhere in your long and extensive record. So if a questioner is focusing on a few statements or ``those few words'' and does not refer at all to the large body of cases where you have carefully applied the law, regardless of sympathies, I do not think that is balanced or down the middle. By focusing on these few statements rather than your extensive record, I think some of my colleagues are attempting to try and suggest that you might put your experiences and empathies ahead of the rule of law. But the record shows otherwise and that is what I now want to explore. Now, from everything I have read in your judicial record and everything I have heard you say, you put rule of law first. But I want to clear it up for the record, so I want to talk to you a little bit about what having empathy means and then I want to turn to your record on the bench, which I believe is the best way to get a sense of what your record will be on the bench in the future. Now, I believe that empathy is the opposite of indifference, the opposite of, say, having ice water in your veins rather than the opposite of neutrality, and I think that is the mistake, in concept, that some have used. But let us start with the basics. Will you commit to us today that you will give every litigant before the court a fair shake and that you will not let your personal sympathies toward any litigant overrule what the law requires?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That commitment I can make and have made for 17 years.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Okay. Well, good. Let us turn to that record. I think your record shows extremely clearly that even when you might have sympathy for the litigants in front of you, as a judge, your fidelity is first and foremost to the rule of law, because as you know, in the courtroom of a judge who ruled based on empathy, not law, one would expect that the most sympathetic plaintiffs would always win. But that is clearly not the case in your courtroom. I am going to take a few cases here and go over them with you. For example, in In re: Air Crash Off Long Island, which is sort of a tragic, but interesting name for a case, you heard the case of families of the 213 victims of a tragic TWA crash, which we all know about in New York. The relatives of the victims sued manufacturers of the airplane, which spontaneously combusted in midair, in order to get some modicum of relief, though, of course, nothing a court could do would make up for the loss of the loved ones. Did you have sympathy for those families?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. All of America did. That was a loss of life that was traumatizing for New York State, because it happened off the shores of Long Island. And I know, Senator, that you were heavily involved in ministering to the families during that case.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. I was, right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Everyone had sympathy for their loss. It was absolutely tragic.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Many of them were poor families, many of them from your borough in the Bronx. I met with them. But, ultimately, you ruled against them, did you not?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I didn't author the majority opinion in that case. I dissented from the majority's conclusion, but my dissent suggested that the court should have followed what I viewed as existing law and reject their claims or at least a portion of their claim.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right. Your dissent said that, ``The appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice which should not be made by the courts.'' Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, sir.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. That is exactly, I think, the point that my colleague from Arizona and others were making about how a judge should rule. How did you feel ruling against individuals who had clearly suffered a profound personal loss and tragedy and were looking to the courts and to you for a sense of justice?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. One, in a tragic, tragic, horrible situation like that, can't feel anything but personal sense of regret, but those personal senses can't command a result in a case. As a judge, I serve the greater interest and that greater interest is what the rule of law supplies. As I mentioned in that case, it was fortuitous that there was a remedy and that remedy, as I noted in my case, was Congress and, in fact, very shortly after the second circuit's opinion, Congress amended the law, giving the victims the remedies that they had sought before the court. And my dissent was just pointing out that despite the great tragedy, that the rule of law commanded a different result.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. And it was probably very hard, but you had to do it. Here is another case, Washington v. County of Rockland, Rockland is a county, a suburb of New York, which was a case involving black corrections officers who claimed that they were retaliated against after filing discrimination claims. Remember that case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I do.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Did you have sympathy for the officers filing that case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, to the extent that anyone believes that they had been discriminated on the basis of race, that not only violates the law, but one would have--I wouldn't use the word ``sympathy,'' but one would have a sense that this claim is of some importance and one that the court should very seriously consider.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right, because I am sure, like Judge Alito said and others, you had suffered discrimination in your life, as well. So you could understand how they might feel, whether they were right or wrong in the outcome, in filing.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I've been more fortunate than most. The discrimination that I have felt has not been as life-altering as it has for others. But I certainly do understand it, because it is a part of life that I'm familiar with and have seen others suffer so much with, as I have in my situation.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Now, let me ask you, again, how did you feel ruling against law enforcement officers, the kind of people you have told us repeatedly you have spent your career working with, DA's office and elsewhere, and for whom you have tremendous respect?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As with all cases where I might have a feeling of some identification with because of background of because of experiences, one feels a sense of understanding what they have experienced. But in that case, as in the TWA case, the ruling that I endorsed against them was required by law.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Here is another one. It was called Boykin v. Keycorp. It was a case in which an African-American woman filed suit after being denied a home equity loan, even after her loan application was conditionally approved based on her credit report. She claimed that she was denied the opportunity to own a home because of her race, her sex, and the fact that her prospective home was in a minority-concentrated neighborhood. She did not even have a lawyer or anyone else to interpret the procedural rules for her. She filed the suit on her own. Did you have sympathy for the woman seeking a home loan from the bank?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Clearly, everyone has sympathy for an individual who wants to own their own home. That's the typical dream and aspiration, I think, of most Americans. And if someone is denied that chance for a reason that they believe is improper, one would recognize and understand their feeling.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right. In fact, you ruled that her claim was not timely. Rather than overlooking the procedural problems with the case, you held fast to the complicated rules that keep our system working efficiently, even if it meant that claims of discrimination could not be heard. We never got to whether she was actually discriminated against, because she did not file in a timely manner. Is my summation there accurate? Do you want to elaborate?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, in terms of the part of the claim that we held was barred by the statute of limitation. In a response to the earlier question--to an earlier question, I indicated that the law requires some finality and that's why Congress passes or a state legislature passes statutes of limitations that require people to bring their claims within certain timeframes. Those are statutes and they must be followed if a situation--if they apply to a particular situation.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Finally, let us look at a case that cuts the other way, with a pretty repugnant litigant. This is the case called Pappas v. Giuliani, and you considered claims of a police employee who was fired for distributing terribly bigoted and racist materials. First, what did you think of the speech in question that this officer was distributing?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Nobody, including the police officer, was claiming that the speech wasn't offensive, racist and insulting. There was a question about what his purpose was in sending the letter. But my opinion dissent in that case pointed out that offensiveness and racism of the letter, but I issued a dissent from the majority's affirmance of his dismissal from the police department because of those letters.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right. As I understand it, you wrote that the actual literature that the police officer was distributing was ``patently offensive, hateful and insulting.'' But you also noted that, and this is your words in a dissent, where the majority was on the other side, ``Three decades of jurisprudence and the centrality of First Amendment freedom in our lives,'' that is your quote, the employee's right to speech had to be respected.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In the situation of that case, that was the decision that I took, because that's what I believe the law commanded.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Even though, obviously, you would not have much sympathy or empathy for this officer or his actions. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't think anyone has sympathy for what was undisputedly a racist statement, but the First Amendment commands that we respect people's rights to engage in hateful speech.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right. Now, I am just going to go to a group of cases here rather than one individual case. We could do this all day long, where sympathy, empathy would be on one side, but you found rule of law on the other side and you sided with rule of law. So, again, to me, analyzing a speech and taking words maybe out of context does not come close to analyzing the cases as to what kind of judge you will be, and that is what I am trying to do here. Now, this one, my office conducted an analysis of your record in immigration cases, as well as the record of your colleagues. In conducting this analysis, I came across a case entitled Chen v. Board of Immigration Appeals, where your colleague said something very interesting. This was Judge Jon Newman. He is a very respected judge on your circuit. He said something very interesting when discussing asylum cases. Specifically, he said the following, this is Judge Newman, ``We know of no way to apply precise calipers to all asylum cases so that any particular finding would be viewed by any three of the 23 judges of this court as either sustainable or not sustainable. Panels will have to do what judges always do in similar circumstances--apply their best judgment, guided by the statutory standard governing review in the holdings of our precedents to the administrative decision and the record assembled to support it.'' In effect, what Judge Newman is saying is these cases would entertain more subjectivity, let us say, because as he said, you could decide many of them as sustainable or not sustainable. So given the subjectivity that exists in the asylum cases, it is clear that if you had wanted to be ``an activist judge,'' you could certainly have found ways to rule in favor of sympathetic asylum-seekers, even when the rule of law might have been more murky and not have dictated an exact result. Yet, in the nearly 850 cases you have decided in the second circuit, you ruled in favor of the government, that is, against the petitioner seeking asylum, immigrant seeking asylum, 83 percent of the time. That happens to be the exact statistical median rate for your court. It is not one way or the other. This means that with regard to immigration, you were neither more liberal nor more conservative than your colleagues. You simply did what Judge Newman said. You applied your best judgment to the record at hand. Now, can you discuss your approach to immigration cases, explain to this panel and the American people the flexibility that judges have in this context, and your use of this flexibility in a very moderate manner?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Reasonable judges look at the same set of facts and may disagree on what those facts should result in. It harkens back to the question of wise men and wise women being judges. Reasonable people disagree. That was my understanding of Judge Newman's comment in the quotation you made. In immigration cases, we have a different level of review, because it's not the judge making the decision whether to grant or not grant asylum. It's an administrative body. And I know that I will--I'm being a little inexact, but I think using old terminology is better than using new terminology. And by that, I mean the agency that most people know as the Bureau of Immigration has a new name now, but that is more descriptive than its new name.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Some people think the new name is descriptive, but that is okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In immigration cases, an asylum-seeker has an opportunity to present his or her case before an immigration judge. They then can appeal to the Bureau of Immigration and argue that there was some procedural default below or that the immigration judge or the bureau itself has committed some error or law. They then are entitled by law to appeal directly to the second circuit. In those cases, because they are administrative decisions, we are required, under the Chevron Doctrine and other tests in administrative law, to give deference to those decisions. But like with all processes, there are occasions when processes are not followed and an appellate court has to ensure that the rights of the asylum-seeker have been--whatever those rights may be--have been given. There are other situations in which an administrative body hasn't adequately explained its reasoning. There are other situations where administrative bodies have actually applied erroneous law. No institution is perfect. And so that accounts for why, given the deference--and I'm assuming you're statistic is right, Senator, because I don't add up the numbers. Okay? But I do know that in immigration cases, the vast majority of the Bureau of Investigation cases are--the petitions for review are denied. So that means that----
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right. The only point I am making here, if some are seeking to suggest that your empathy or sympathy overrules rule of law, this is a pretty good body of law to look at. A, it is a lot of cases, 850; B, one would think--I am not going to ask you to state it, but you will have sympathy for immigrants and immigration; and, third, there is some degree of flexibility here, as Judge Newman said, just because of the way the law is. Yet, you were exactly in the middle of the second circuit. If empathy were governing you, I do not think you would have ended up in that position, but I will let everybody judge whether that is true. But the bottom line here, in the Air Crash case, in Washington, in Boykin, in this whole mass of asylum cases, you probably had sympathy for many of the litigants, if not all of them, ruled against them. The cases we just discussed are just a sampling of your lengthy record, but they do an effective job of illustrating the fact that in your courtroom, rule of law always triumphs. Would you agree? That seems to me, looking at your record, you know it much better than I do, that rule of law triumphing probably best characterizes your record in your 17 years as a judge.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I firmly believe in the fidelity to the law. In every case I approach, I start from that working proposition and apply the law to the facts before it.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Has there ever been a case in which you ruled in favor of a litigant simply because you were sympathetic to their plight, even if rule of law might not have led you in that direction?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Never.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Thank you. Let us go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you will improperly consider foreign law and sources in cases before you. You gave a speech in April that has been selectively quoted, discussing whether it is permissible to use foreign law or international law to decide cases. You stated clearly that, ``American analytic principles do not permit us,'' that is your quote, to do so. Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. American law does not permit the use of foreign law or international law to interpret the Constitution. That's a given, and my speech explained that, as you noted, explicitly. There is no debate on that question. There is no issue about that question. The question is a different one, because there are situations in which American law tells you to look at international or foreign law, and my speech was talking to the audience about that. In fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing. So, for example, if the U.S. is a party to a treaty and there's a question of what the treaty means, then courts routinely look at how other courts of parties who are signatories are interpreting that. There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that's going to be done in that other country, then American law would say you may have to look at that foreign law to determine the contract issue. The question of use of foreign law then is different than considering the idea that it may, on an academic level, provide. Judges--and I'm not using my words. I'm using Justice Ginsberg's words. You build up your story of knowledge as a person, as a judge, as a human being with everything you read. For judges, that includes law review articles and there are some judges who have opined negatively about that. You use decisions from other courts. You build up your story of knowledge. It is important, in the speech I gave, I noted and agreed with Justices Scalia and Thomas that one has to think about this issue very carefully, because there are so many differences in foreign law from American law. But that was the setting of my speech and the discussion that my speech was addressing.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. And you have never relied on a foreign court to interpret U.S. law nor would you.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In fact, I know that in my 17 years on the bench, other than applying it in treaty interpretation or conflicts of law situations, that I have not cited to foreign law.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right, and it is important. American judges consider many non-binding sources when reaching a determination. For instance, consider Justice Scalia's well known regard for dictionary definitions in determining the meaning of words or phrases or statutes being interpreted by a court. In one case, MCI v. AT&T, that is a pretty famous case, Justice Scalia cited not one, but five different dictionaries to establish the meaning of the word ``modify'' in a statute. Would you agree that dictionaries are not binding on American judges?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. They are a tool to help you in some situations to interpret what is meant by the words that Congress or a legislature uses.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right. So it was not improper for Justice Scalia to consider dictionary definitions, but they are not binding, same as citing of foreign law, as long as you do not make it binding on the case.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes. Well, foreign law, except in the situation----
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Of treaties.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor.--which we spoke about and even then is not binding. It's American principles of construction that are binding.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Right. Okay. Good. Now, we will go to a little easier topic, since we are close to the end here. That is a topic that you like and I like and, that is, we have heard a lot of discussions about baseball in metaphorical terms, judges as umpires. We had a lot of that yesterday, a little of that today. But I want to talk about baseball a little more concretely. First, am I correct you share my love for America's past-time?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's often said that I grew up in the shadow of Yankee Stadium. To be more accurate, I grew up sitting next to my dad, while he was alive, watching baseball and it's one of my fondest memories of him.
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. So given that you lived near Yankee Stadium and you are from the Bronx, I was going to ask you, are you a Mets or a Yankee fan, but I guess you have answered that. Right?
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Be careful. You want to keep the Chairman on your side. [Laughter.]
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. No, no. As much as Judge Scalia might want to be nominated, I do not think she would adopt the Red Sox as her team as you have, Mr. Chairman. Judge Sotomayor, I am sorry. What did I say? I do not know who Judge Scalia roots for, but I know who Judge Sotomayor roots for.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I know many residents of Washington, D.C. have asked me to look at the Senators for----
Senator Chuck Schumer (NY)
Senator
(D)
Senator Schumer. Anyway, I do want to ask you just about the 1995 players strike case, which comes up, but it is an interesting case for everybody. You will not have to worry about talking about it, because I do not think the Mets v. Yankees will come up or the Red Sox v. the Yankees will come up before the court, although the Yankees could use all the help they can get right now. But could you tell us a little bit about the case and why you listed it in your questionnaire that you filled out as one of your 10 most important cases? And that will be my last question, Mr. Chairman.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That was and people often forget how important some legal challenges seem before judges decide the case. Before the case was decided, all of the academics and all of newspapers and others talking about the case were talking about the novel theory that the baseball owners had developed in challenging the collective bargaining rights of players and owner. In that case, as with all the cases that I approach, I look at what the law is, what precedent says about it, and I try to discern it a new factual challenge how the principles apply, and that's the process I used in that case. And it became too clear to me, after looking at that case, that that process led to affirming the decision of the National Labor Relationships Board, that it could and should issue an injunction on the grounds that it claimed. So that, too, was a case where there's a new argument, a new claim, but where the application of the law came from taking the principles of the law and applying it to that new claim.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much, Senator Schumer.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Senator Graham. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. And then we will go to Senator Durbin.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. Thank you, Judge. I know it's been a long day, and we'll try to keep it moving here. I think you're one Senator after me away from taking a break. My problem, quite frankly, is that, as Senator Schumer indicated, the cases that you've been involved in, to me, are left of center, but not anything that jumps out at--at me, but the speeches really do. I mean, the speech you gave to the ACLU about foreign law--we'll talk about that probably in the next round--was pretty disturbing. And I keep talking about these speeches because what I'm trying--and I listen to you today, and I think I'm listening to Judge Roberts. I mean, I'm, you know, listening to a strict constructionist here. So we've got to reconcile in our minds here to put the puzzle together to go that last line, is that you've got Judge Sotomayor, who has come a long way and done a lot of things that every American should be proud of. You've got a judge who has been on a Circuit Court for a dozen years. Some of the things trouble me, generally speaking, left of center, but within the mainstream, and you have these speeches that just blow me away. Don't become a speech writer if this law thing doesn't work out, because these speeches really throw a wrinkle into everything. And that's what we're trying to figure out: who are we getting here? You know, who are we getting, as a Nation? Now, legal realism. Are you familiar with that term?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What does it mean, for someone who may be watching the hearing?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. To me it means that you are guided in reaching decisions in law by the realism of the situation, of the--the--it's less--it looks at the law through the----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. It's kind of touchy-feely stuff. [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's not quite words that I would use, because there are many academics and judges who have talked about being legal realists. I don't apply that label to myself at all. I--as I said, I look at law and--and precedent and discern its principles and apply it to the situation before me.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. So you would not be a disciple of the legal realism school?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. All right. Would you be considered a strict constructionist, in your own mind?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't use labels to describe what I do. There's been much discussion today about what various labels mean and don't mean.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Uh-huh.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Each person uses those labels and gives it their own sense of what----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. When Judge Rehnquist says he was a strict constructionist, did you know what he was talking about?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I think I understood what he was referencing.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Uh-huh.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But his use----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Uh-huh.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor.--is not how I go about looking at----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What does ``strict constructionism'' mean to you?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, it means that you look at the Constitution as it's written, or statutes as is--as they are written and you apply them exactly by the words.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Right. Would you be an originalist?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Again, I don't use labels.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And--because----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What is an originalist?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In my understanding, an originalist is someone who looks at what the founding fathers intended and what the situation confronting them was, and you use that to determine every situation presented--not every, but most situations presented by the Constitution.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you believe the Constitution is a living, breathing, evolving document?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed, except by amendment. It is a process--an amendment process that is set forth in the document. It doesn't live, other than to be timeless by the expression of what it says. What changes, is society. What changes, is what facts a judge may get presented.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What's the--what's the best way for society to change, generally speaking?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What's the--what's the most legitimate way for society to change?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't know if I can use the word ``change''. Society changes because there's been new developments in technology, medicine, in--in society growing.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you think judges----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There's----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you think judges have changed society by some of the landmark decisions in the last 40 years?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, in the last few years?
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Forty years.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I'm sorry. You said the----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Forty. I'm sorry. Forty, 4-0. Do you think Roe v. Wade changed American society?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Roe v. Wade looked at the Constitution and decided that the Constitution, as applied to a claimed right, applied.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Is there anything in the Constitution that says a State legislator or the Congress cannot regulate abortion or the definition of life in the first trimester?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The holding of the court as----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I'm asking, the Constitution. Does the Constitution, as written, prohibit a legislative body at the State or Federal level from defining life or regulating the rights of the unborn, or protecting the rights of the unborn in the first trimester?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Constitution, in the Fourteenth Amendment, has a----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I'm talking about, is there anything in the document written about abortion?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There--the word ``abortion'' is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And that gets us to the speeches. That broad provision of the Constitution that has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on, and on, and on, and on. And that's what drives us here, quite frankly. That's my concern. And when we talk about balls and strikes, maybe that's not the right way to talk about it. But a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they're not doing it right, get rid of them through the electoral process. And a lot of us are concerned, from the left and the right, that unelected judges are very quick to change society in a way that's disturbing. Can you understand how people may feel that way?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Certainly, sir.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. Now, let's talk about you. I like you, by the way, for whatever that matters. Since I may vote for you, that ought to matter to you. One thing that stood out about your record is that when you look at the almanac of the Federal judiciary, lawyers anonymously rate judges in terms of temperament. And here's what they said about you: ``she's a terror on the bench''; ``she's temperamental, excitable''; ``she seems angry''; ``she's overly aggressive, not very judicial''; ``she does not have a very good temperament''; ``she abuses lawyers''; ``she really lacks judicial temperament''; ``she believes in an out-of-control--she behaves in an out-of-control manner''; ``she makes inappropriate outbursts''; ``she is nasty to lawyers''; ``she will attack lawyers for making an argument she does not like''; ``she can be a bit of a bully''. When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I do ask tough questions at oral argument.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Are you the only one that asks tough questions in oral argument?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. No, not at all. I can only explain what I'm doing, which is, when I ask lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that they're right. I do know that in the Second Circuit, because we only give litigants 10 minutes of oral argument each, that the processes in the Second Circuit are different than in most other circuits across the country, and that some lawyers do find that our court--which is not just me, but our court generally--is described as a ``hot bench''. It's a term of art lawyers use. It means that they're peppered with questions. Lots of lawyers who are unfamiliar with the process in the Second Circuit find that tough bench difficult and challenging.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. If I may interject, Judge, they find you difficult and challenging more than your colleagues. And the only reason I mention this is that it stands out when you--you know, there are many positive things about you, and these hearings are--are--are designed to talk--talk about the good and the bad. And I--I never liked appearing before a judge that I thought was a bully. It's hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. I can only talk about what I know of my relationship with the judges of my court and with the lawyers who appear regularly from our Circuit. And I believe that my reputation is--is such that I ask the hard questions, but I do it evenly for both sides.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. In fairness to you, there are plenty of statements in the record in support of you as a person that-- that do not go down this line. But I would just suggest to you, for what it's worth, Judge, as you go forward here, that these statements about you are striking. They're not about your colleagues; you know, the 10-minute rule applies to everybody. Obviously you've accomplished a lot in your life, but maybe these hearings are a time for self-reflection. This is pretty tough stuff that you don't see from--about other judges on the Second Circuit. Let's talk about the ``wise Latino'' comment yet again. And the only reason I want to talk about it yet again is that I think what you said--let me just put my biases on the table here. One of the things that I constantly say when I talk about the war on terror is that one of the missing ingredients in the Mideast is the rule of law that Senator Schumer talked about, that the hope for the Mideast, Iraq and Afghanistan, is that there will be a courtroom one day that, if you find yourself in that court, it would be about what you allegedly did, not who you are. It won't be about whether you're a Sunni, Shia, a Khurd or a Pastune, it will be about what you did. And that's the hope of the world, really, that our legal system, even though we fail at times, will spread. And I hope one day that there will be more women serving in elected official and judicial offices in the Mideast, because I can tell you this from my point of view: one of the biggest problems in Iraq and Afghanistan is a mother's voice is seldom heard about the fate of her children. And if you wanted to change Iraq, apply the rule of law and have more women involved in having a say about Iraq. And I believe that about Afghanistan, and I think that's true here. I think for a long time a lot of talented women were asked, ``Can you type,'' and we're trying to get beyond that and improve as a Nation. So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process from different backgrounds, count me in. But your speeches don't really say that to me. They--along the lines of what Senator Kyl was saying, they kind of represent the idea, there's a day coming when there will be more of us, women and minorities, and we're going to change the law. And what I hope we'll take away from this hearing, is there needs to be more women and minorities in the law to make a better America, and the law needs to be there for all of us if, and when, we need it. And the one thing that I've tried to impress upon you, through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we're talking about putting you on the Supreme Court and judging your fellow citizens, and one of the things that I need to be assured of is that you understand the world as it pretty much really is, and we've got a long way to go in this country. And I can't find the quote, but I'll find it here in a moment, the ``wise Latino'' quote. Do you remember it? [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. Say it to me. Can you recite it from memory? I've got it. All right. ``I would hope that a wise Latina woman, with the richness of her experience, would, more often than not, reach a better conclusion than a white male.'' And the only reason I keep talking about this is that I'm in politics, and you've got to watch what you say because, 1) you don't want to offend people you're trying to represent. But do you understand, ma'am, that if I had said anything like that, and my reasoning was that I'm trying to inspire somebody, they would have had my head? Do you understand that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I do understand how those words could be taken that way, particularly if read in isolation.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, I don't know how else you could take that. If Lindsey Graham said that I will make a better Senator than X because of my experience as a Caucasian male, makes me better able to represent the people of South Carolina, and my opponent was a minority, it would make national news, and it should. Having said that, I am not going to judge you by that one statement. I just hope you'll appreciate the world in which we live in, that you can say those things meaning to inspire somebody and still have a chance to get on the Supreme Court; others could not remotely come close to that statement and survive. Whether that's right or wrong, I think that's a fact. Does that make sense to you?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It does. And I would hope that we've come, in America, to the place where we can look at a statement that could be misunderstood and consider it in the context of the person's life and the work we have done.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. You know what? If that comes of this hearing, the hearing has been worth it all, that some people deserve a second chance when they misspeak, and you would look at the entire life story to determine whether this is an aberration or just a reflection of your real soul. If that comes from this hearing, then we've probably done the country some good. Now, let's talk about the times in which we live in. You're from New York. Have you grown up in New York all your life?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. My entire life.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What did September 11, 2001 mean to you?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It was the most horrific experience of my personal life, and the most horrific experience in imagining the pain of the families of victims of that tragedy.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you know anything about the group that planned this attack, who they are and what they believe? Have you read anything about them?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I've followed the newspaper accounts, I've read some books in the area. So, I believe I have an understanding of that----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. What would a woman's life be in their world if they can control a government or a part of the world? What do they have in store for women?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I understand that some of them have indicated that women are not equal to men.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I think that's a very charitable statement. Do you believe that we're at war?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. We are, sir. We have--we have tens and thousands of soldiers in the battlefields of Afghanistan and Iraq. We are at war.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Are you familiar with military law much at all? And if you're not, that's Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, no, no, no. I--I'm thinking, because I've never practiced in the area. I've only read the Supreme Court decisions in this area.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I've obviously examined, by referencing cases, some of the procedures involved in military law. But I-- I'm not personally familiar with military law.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. From which----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I haven't participated.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I understand. From what you've read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Given the announcements of certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent, then the answer would be on-- based on that, yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Under the Law of Armed Conflict--and this is where I may differ a bit with my colleagues--it is an international concept, the Law if Armed Conflict. Under the Law of Armed Conflict, do you agree with the following statement, that if a person is detained who is properly identified through accepted legal procedures under the Law of Armed Conflict as a part of the enemy force, there is no requirement based on a length of time that they be returned to the battle or released. In other words, if you capture a member of the enemy force, is it your understanding of the law that you have to at some point of time let them go back to the fight?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I--it's difficult to answer that question in the abstract, for the reason that I indicated later. I've not been a student of the law of war.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Other than to----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. We'll have another round. I know you'll have a lot of things to do, but try to--try to look at that. Look at that general legal concept. And the legal concept I'm espousing is that, under the law of war, Article 5, specifically, of the Geneva Convention, requires a detaining authority to allow an impartial decisionmaker to determine the question of status, whether or not you're a member of the enemy force. And see if I'm right about the law, that if that determination is properly had, there is no requirement under the Law of Armed Conflict to release a member of the enemy force that still presents a threat. I would like you to look at that.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Now, let's talk about--thank you. Let's talk about your time as a lawyer. The Puerto Rican Legal Defense Fund. Is that right? Is that the name of the organization?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It was then. I think it--I--I know it has changed names recently.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. How long were you a member of that organization?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Nearly 12 years.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. If not 12 years.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Right. During that time you were involved in litigation matters. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Fund was involved in litigations. I was a board member of the Fund.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. Are you familiar with the position that the Fund took regarding taxpayer-funded abortion, the briefs they filed?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. I never reviewed those briefs.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, in their briefs they argued--and I will submit the quotes to you--that if you deny a low-income woman Medicaid funding, taxpayer funds to have an abortion, if you deny her that, that's a form of slavery. And I can get the quotes. Do you agree with that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I wasn't aware of what was said in those briefs. Perhaps it might be helpful if I explain what the function of a board member is and what the function of the staff would be in an organization like the Fund.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In a small organization, as the Puerto Rican Legal Defense Fund was back then, it wasn't the size of-- of other Legal Defense Funds, like the NAACP Legal Defense Fund----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. Or the Mexican-American Legal Defense Fund, which are organizations that undertook very similar work to PRLDF. In an organization like PRLDF, a board member's main responsibility is to fund-raise, and I'm sure that a review of the board meetings would show that that's what we spent most of our time on. To the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the Fund.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Is the mission statement of the Fund to include taxpayer-funded abortion?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Our mission----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Was that one of the goals?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Our mission statement was broad like the Constitution.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Yeah.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Which meant that it--its focus was on promoting the equal opportunities of Hispanics in the United States.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, Judge, I've got--and I'll share them with you and we'll talk about this more--a host of briefs for a 12-year period where the Fund is advocating to the State court and to the Federal courts that to deny a woman taxpayer funds, low-income woman taxpayer assistance in having an abortion, is a form of slavery, it's an unspeakable cruel--cruelty to the life and health of a poor woman. Was it--was it or was it not the position of the Fund to advocate taxpayer-funded abortions for low-income women?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I wasn't, and I didn't as a board member, review those briefs. Our lawyers were charged with----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Would it bother you if that's what they did?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, I know that the Fund, during the years I was there, was involved in public health issues as it affected the Latino community. It was involved----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Is abortion a public health issue?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, it was certainly viewed that way generally by a number of civil rights organizations at the time.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you personally view it that way?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It wasn't a question of whether I personally viewed it that way or not. The issue was whether the law was settled on what issues the Fund was advocating on behalf of the community it represented. And----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, the Fund--I'm sorry. Go ahead.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And so the question would become, was there a good-faith basis for whatever arguments they were making, as the Fund's lawyers were lawyers.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, yeah.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. They had an ethical obligation.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. And quite frankly, that's--you know, lawyers are lawyers and people who have causes that they believe in have every right to pursue those causes. And the Fund, when you look--you may have been a board member, but I'm here to tell you, that filed briefs constantly for the idea that taxpayer-funded abortion was necessary and to deny it would be a form of slavery, challenged parental consent as being cruel, and I can go down a list of issues that the Fund got involved in, that the death penalty should be stricken because it has--it's a form of racial discrimination. What's your view of the death penalty in terms of personally?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The issue for me with respect to the death penalty is that the Supreme Court, since Gregg, has determined that the death penalty is constitutional under certain situations.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I have rejected challenges to the Federal law and it's application in the one case I handled as a District Court judge, but it's a reflection of what my views are on the law.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. As an advocate--as an advocate, did you challenge the death penalty as being an inappropriate punishment because the effect it has on race?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I never litigated a death penalty case personally. The Fund----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Did you ever sign the memorandum saying that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I send the memorandum for the board to take under consideration what position, on behalf of the Latino community, the Fund should take on New York State reinstating the death penalty in the State. You--it's hard to remember because so much time has passed in the 30 years since I----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Yeah. Well, we'll give you a chance to look at some of the things I'm talking about because I want you to be aware of what I'm talking about. Let me ask you this. We've got 30 seconds left. If a lawyer on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. An advocate advocates on behalf of the client they have, and so that's a different situation than how a judge has acted in the cases before him or her.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Okay. And the only reason I mention this, Judge, is that the positions you took, or this Fund took, I think, like the speeches, tell us some things, and we'll have a chance to talk more about your full life. But I appreciate the opportunity to talk with you.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you, sir.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much, Senator Graham.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Senator Durbin. Thank you, Mr. Chairman. Judge, good to see you again.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Hello, Senator. Thank you. And I thank you again for letting me use your conference room when I was as hobbled as I was.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. You were more than welcome there and there was more traffic of Senators in my conference room than I have seen since I was elected to the Senate. This has been an interesting exercise today for many of us who have been on the Judiciary Committee for a while, because the people new to it may not know, but there has been a little bit of a role reversal here. The Democratic side is now, largely speaking, in favor of our president's nominee. The other side is asking questions more critical. In the previous two Supreme Court nominees, the tables were turned. There were more critical questions coming from the Democratic side. There is also another obvious contrast. The two previous nominees that were considered while I was on the committee, Chief Justice Roberts and Justice Alito, are white males, and, of course, you come to this as a minority woman candidate. When we asked questions of the white male nominees of a Republican president, we were basically trying to make sure that they would go far enough in understanding the plight of minorities, because, clearly, that was not in their DNA. The questions being asked of you from the other side primarily are along the lines of: will you go too far in siding with minorities? It is an interesting contrast, as I watch this play out. Two things have really been the focus on the other side, although a lot of questions have been asked. One was, your speeches, one or two speeches. I took a look here at your questionnaire. I think you have given hundreds of speeches. So that they would only find fault in one or two to bring up is a pretty good track record from this side of the table. If, as politicians, all we had were one or two speeches that would raise some questions among our critics, we would be pretty fortunate. And when it came down to your cases, it appears that you have been involved, at least as a Federal judge, in over 3,000 cases and it appears that the Ricci case really is the focus of more attention than almost any other decision. I think that speaks pretty well of you for 17 years on the bench and I want to join, as others have said, in commending the other side, because although the questions have sometimes been pointed, I think they have been fair and I think you have handled the responses well. I would like to say that on the speech which has come up time and again, the wise Latina speech, the next paragraph in that speech, I do not know if it has been read to the members, but it should be, because after you made the quote which has been the subject of many inquiries here, you went on to say, ``Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case.'' You went on to say, ``I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable.'' ``As Judge Cedarbaum,'' who may still be here, ``pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.'' That, to me, tells the whole story. You are, of course, proud of your heritage, as I am proud of my own. But to suggest that a special insight and wisdom comes with it is to overlook the obvious. Wise men have made bad decisions. White men have made decisions favoring minorities. Those things have happened when people looked at the law and looked at the Constitution. So I would like to get into two or three areas, if I might, to follow-up on, because they are areas of particular interest to me. I will return to one that Senator Graham just touched on and that is the death penalty. A book, which I greatly enjoyed, I do not know if you ever had a chance to read, is ``Becoming Justice Blackmun,'' a story of Justice Blackmun's career and many of the things that happened to him. Now, late in his career, he decided that he could no longer support the death penalty and it was a long, thoughtful process that brought him to this moment. He made the famous statement, maybe the best known line attributed to him, in a decision, Callins v. Collins, ``From this day forward, I no longer shall tinker with the machinery of death.'' The 1994 opinion said: ``Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency, or not at all, see Furman v. Georgia, and despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake.'' Judge Sotomayor, I know that you have thought about this issue. Senator Graham made reference to the Puerto Rican Legal Defense and Education Fund memo that you once signed on the subject. What is your thought about Justice Blackmun's view that despite our best legal efforts, the imposition of the death penalty in the United States has not been handled fairly?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. With respect to the position the fund took in 1980-1981 with respect to the death penalty, that was, as I noted, a question of being an advocate and expressing views on behalf of the community on a policy choice New York State was making: Should we or should we not reinstitute the death penalty? As a judge, what I have to look at and realize is that in 30 years or 40, actually, there has been--excuse me, Senator. I'm sorry----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. It is all right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. Enormous changes in our society, many, many cases looked at by the Supreme Court addressing the application of the death penalty, addressing issues of its application and when they're constitutional or not. The state of this question is different today than it was when Justice Blackmun came to his views. As a judge, I don't rule in an abstract. I rule in the context of a case that comes before me and a challenge to a situation and an application of the death penalty that arises in an individual case. I've been and am very cautious about expressing personal views since I've been a judge. I find that people who listen to judges give--express their personal views on important questions that the courts are looking at; that they have a sense that the judge is coming into the process with a closed mind; that their personal views will somehow influence how they apply the law. It's one of the reasons why, since I've been a judge, I've always been very careful about not doing that and I think my record speaks more loudly than I can----
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. It does.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. About the fact of how careful I am about ensuring that I'm always following the law and not my personal views.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Well, you handled one death penalty case as a district court judge, United States v. Heatley, after, you had signed on to the Puerto Rican Legal Defense and Education Fund memo in 1981 recommending that the organization oppose reinstituting the death penalty in New York. After you had done that, some years later, you were called on to rule on a case involving the death penalty. Despite the policy concerns that you and I share, you denied the defendant's motion to dismiss and you paved the way for the first Federal death penalty case in Manhattan in more than 40 years. Now, the defendant ultimately accepted a plea bargain to a life sentence but you rejected his challenge to the death penalty and found that he had shown no evidence of discriminatory intent. So that makes your point. Whatever your personal feelings, you, in this case at the district court level, ruled in a fashion that upheld the death penalty. I guess I am trying to take it a step beyond and maybe you will not go where I want to take you, and some nominees do not, but I guess the question that arises, in my mind, is how a man like Justice Blackmun, after a life on the bench, comes to the conclusion that despite all our best efforts, the premise of your 1981 memo is still the same, that, ultimately, the imposition of the death penalty in our country is too arbitrary. Minorities in America today have accounted for a disproportionate 43 percent of executions, that is a fact, since 1976. And while white victims account for about one-half of all murder victims, 80 percent of death penalty cases involve victims who are white. This raises some obvious questions we have to face on this side of the table. I am asking you if it raises questions of justice and fairness on your side of the table.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In the Heatley case, it was the first prosecution in the Southern District of New York of a death penalty case in over 40 years. Mr. Heatley was charged with being a gang leader of a crack and cocaine enterprise who engaged in over--if the number wasn't 13, it was very close to that--13 murders to promote that enterprise. He did challenge the application of the death penalty, charges against him, on the ground that the prosecutor had made its decision to prosecute him and refused him a cooperation agreement on the basis of his race. The defense counsel, much as you have Senator, raised any number of concerns about the application of the death penalty and in response to his argument, I held hearings not on that question, but on the broader question of what had--on the specific legal question--what had motivated this prosecutor to enter this prosecution and whether he was denied the agreement he sought on the basis of race. I determined that that was not the case and rejected his challenge. With respect to the issues of concerns about the application of the death penalty, I noted for the defense attorneys that, in the first instance, one back question of the effects of the death penalty, how it should be done, what circumstances warrant it or don't in terms of the law, that that's a legislative question. And, in fact, I said to him--I acknowledged his concerns, I acknowledged that many had expressed views about that, but that's exactly what I said, which is, ``I can only look at the case that's before me and decide that case.''
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. There is a recent case before the Supreme Court I would like to make reference to, District Attorney's Office v. Osborne, involving DNA. It turns out there are only three states in the United States that do not provide state legislated post-conviction access to DNA evidence that might exonerate someone who is in prison. I am told that since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court, in the Osborne case, was asked, What about those three states? Is there a Federal right to post-conviction access to DNA evidence for someone currently incarcerated? It asked whether or not they were properly charged and convicted. And the court said, no, there was no Federal right. But it was a 5-4 case. So though I do not quarrel with your premise that it is our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court, right across the street, to say, We think this gets to an issue of due process, regarding someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no post-conviction right of access to DNA evidence. So I ask you, either from the perspective of DNA or from other perspectives, is it not clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the court may conclude that the state has acted unconstitutionally and invalidate the act. But it's difficult to answer a question about the role of the court outside of the functions of the court, which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. I follow you and I understand the limitations on policy-related questions that you are facing. So I would like to go to another area relating to policy and ask your thoughts on it. We have, on occasion, every 2 years here, a chance to go across the street for an historic dinner. The members of the U.S. Senate sit down with the members of the U.S. Supreme Court. We look forward to it. It is a tradition that is maybe six or 8 years old, Mr. Chairman, I do not think much older.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. It is a great tradition.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Great tradition, and we get to meet them, they get to meet us. I sat down with one Supreme Court justice, I won't name this person, but I said at the time that I was chairing the Crime Subcommittee in Judiciary and said to this justice, ``What topic do you think I should be looking into as a Senator when it comes to justice in the United States? '' And this justice said, ``Our system of corrections and incarceration in America, it has to be the worst.'' It is hard to imagine how it could be much worse if we tried to design it that way. Today, in the United States, 2.3 million people are in prison. We have the most prisoners of any country in the world, as well as the highest per capita rate of prisoners in the world. In America today, African-Americans are incarcerated at six times the rate of white Americans. Now, there is one significant reason for this and you have faced at least an aspect of it as a judge, and that is the crack-powder disparity in sentencing. I will readily concede I voted for it, as did many members of the House of Representatives, frightened by the notion of this new narcotic called crack that was so cheap and so destructive that we had to do something dramatic. We did. We established a 100-to-1 ratio in terms of sentencing. Now, we realize we made a serious mistake. Eighty-one percent of those convicted for crack offenses in 2007 were African-American, although only about 25 percent of crack cocaine users are African-Americans. I held a hearing on this and Judge Reggie Walton, the former associate director of the Office of National Drug Control Policy, testified and he basically said that this sentencing disparity between crack and powder has had a negative impact in courtrooms across America. Specifically, he stated that people come to view the courts with suspicion as institutions that mete out unequal justice, and the moral authority of not only the Federal courts, but all courts, is diminished. I might say, for the record, that this administration has said they want to change this and make the sentencing ratio one-to-one. We are working on legislation on a bipartisan basis to do so. You face this as a judge, at least some aspect of it. You sentenced Louis Gomez, a non-violent drug offender, to a 5-year mandatory minimum and you said, when you sentenced him, ``You do not deserve this, sir. I am deeply sorry for you and your family, but I have no choice.'' May I ask you to reflect for a moment, if you can, beyond this specific case or using this specific case, on this question of race and justice in America today? It goes to the heart of our future as a nation and whether we can finally come to grips and put behind us some of the terrible things that have happened in our history.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's so unsatisfying, I know, for you and probably the other Senators, when a nominee to the court doesn't engage directly with the societal issues that are so important to you, both as citizens and Senators. And I know they are important to you, because this very question you just mentioned to me is part of bipartisan efforts that you're making, and I respect that many have concerns on lots of different issues. For me, as a judge, both on the circuit or potentially as a nominee to the Supreme Court, my role is a very different one. And in the Louis Gomez case, we weren't talking about the disparity. We were talking about the quantity of drug and whether I had to follow the law on the statutory minimum that Congress required for the weight of drugs at issue. In expressing a recognition of the family's situation and the uniqueness of that case, it was at a time when Congress had not recognized the safety valve for first-time offenders under the drug laws. That situation had motivated many judges in many situations to comment on the question of whether the law should be changed to address the safety valve question, then make a statement, making any suggestions to Congress, I followed the law. But I know that the attorney general's office, many people spoke to Congress on this issue and Congress passed a safety valve. With respect to the crack-cocaine disparity, as you may know, the guidelines are no longer mandatory as a result of a series of recent Supreme Court--not so recent, but Supreme Court cases probably almost in the last 10 years. I think the first one, Apprendi, was in 2000, if my memory is serving me right, or very close to that. At any rate, that issue was addressed recently by the Supreme Court in a case called U.S. v. Kimbro and the court noted that the Sentencing Commission's recommendation of sentences was not based on its considered judgment that the 100-to-1 ratio was an appropriate sentence for this conduct and the court recognized that sentencing judges could take that fact into consideration in fashioning an individual sentence for a defendant. And, in fact, the Sentencing Commission, in very recent time, has permitted defendants who have been serving prior sentences, in certain situations, to come back to court and have the courts reconsider whether their sentences should be reduced in a way specified under the procedures established by the Sentencing Commission. This is an issue that I can't speak further about, because it is an issue that's being so actively discussed by Congress and which is controlled by law. But as I said, I can appreciate why not saying more would feel unsatisfying, but I am limited by the role I have.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. One last question I will ask you. I would like to hear your perspective on our immigration courts. A few years ago, Judge Richard Posner from my home state of Illinois brought this problem to my attention. In 2005, he issued a scathing opinion criticizing our immigration courts in America. He wrote, ``The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice.'' For those who do not know this Judge Posner, he is an extraordinary man. I would not know where to put him exactly on the political spectrum, because I am not sure what his next book will be. He has written so many books. He is a very gifted and thoughtful person. In 2002, then Attorney General John Ashcroft issued so- called streamlining regulations that made dramatic changes in our immigration courts, reducing the size of the Board of Immigration Appeals from 23 to 11. This board stopped using three-member panels and board members began deciding cases individually, often within minutes and without written opinions. In response, immigrants began petitioning the Federal appellate court in large numbers. In 2004, immigration cases constituted 17 percent of all Federal appeals, up from 3 percent in 2001, the last year before the regulations under Attorney General Ashcroft. I raised this issue with Justice Alito during his confirmation hearing and he told me, ``I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I have been troubled by this.'' What has been your experience on the circuit court when it came to these cases and what is your opinion of Judge Posner's observation in this 2005 case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There's been 4 years since Judge Posner's comments and they have to be placed somewhat in perspective. Attorney General Ashcroft's--what you described as streamlining procedures have been by, I think, all of the circuit courts that have addressed the issue, affirmed and given Chevron deference. So the question is not whether the streamlined procedures are constitutional or not, but what happened when he instituted that procedure is that, with all new things, there were many imperfections. New approaches to things create new challenges and there's no question that courts faced with large numbers of immigration cases, as was the second circuit--I think we had the second largest number of new cases that arrived at our doorsteps, the ninth circuit being the first, and I know the seventh had a quite significantly large number--were reviewing processes that, as Justice Alito said, left something to be desired in a number of cases. I will say that that onslaught of cases and the concerns expressed in a number of cases by the judges, in the dialog that goes on in court cases, with administrative bodies, with Congress, resulted in more cooperation between the courts and the immigration officials in how to handle these cases, how to ensure that the process would be improved. I know that the attorney general's office devoted more resources to the handling of these cases. There's always room for improvement. The agency is handling so many matters, so many cases, has so many responsibilities, making sure that it has adequate resources and training is an important consideration, again, in the first instance, by Congress, because you set the budget. In the end, what we can only do is ensure that due process is applied in each case, according to the law required for the review of ths cases.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Do you feel that it has changed since 2005, when Judge Posner said the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, I wouldn't--I'm not endorsing his views, because he can only speak for himself. I do know that in, I would say, the last two or 3 years, the number of cases questioning the processes in published circuit court decisions has decreased.
Senator Dick Durbin (IL)
Senator
(D)
Senator Durbin. Thank you very much. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very, very much Senator Durbin. I have discussed this with Senator Sessions and, as I told him earlier, also, at his request, we have not finished the first round, but once we finish the first round of questions, we will have 20-minute rounds on the second. I am going to urge Senators, if they do not feel the need to use the whole round, just as Senator Durbin just demonstrated, that they not. But here will be the schedule. We will break for today. We will begin at 9:30 in the morning. We will finish the first round of questions, the last round will be asked by Senator Franken, and then we will break for the traditional closed door session with the nominee. So for those who have not seen one of these before, we do this with all Supreme Court nominees. We have a closed session just with the nominee. We go over the FBI report. We do it with all of them. I think we can generally say it is routine. We did it with Chief Justice Roberts and Justice Alito and Justice Breyer and everybody else. Then we will come back for a round of 20 minutes each, but during that round, I will encourage Senators, if they feel all the questions have been asked--I realize sometimes all questions may have been asked, but not everybody has asked all of the questions--that we try to ask at least something new to keep up the interest and then we can determine whether we are prepared--depending on how late it is--whether we can do the panels or whether we have to do the panels on Thursday.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you, Chairman Leahy. I do think that the scheme you arranged for this hearing is good, the way we have gone forward. I thank you for that. We have done our best to be ready in a short timeframe, and I believe the members on this side are ready. Talking of questions, there is not any harm in asking. Is that not a legal rule? To get people to reduce their time. But there are still some important questions and I think we will certainly want to use--most members would want to use that 20 minutes. I appreciate that and look forward to being with you in the morning.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. That is why I asked the question. I probably have violated the first rule that I learned as a trial lawyer--you should not ask a question if you do not know what the answer is going to be. But then I also had that other aspect where hope springs eternal. As we have a whole lot of other things going on in the Senate, I would hope we might. Senator Cardin, Senator Whitehouse, Senator Klobuchar, Senator Specter and Senator Franken, I am sorry that we do not get to you yet, but we will before we do the closed session. Judge, thank you very much.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. We stand in recess. 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SONIA SOTOMAYOR, TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES ---------- 40009 U.S. Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 9:31 a.m., in room SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and Coburn. Chairman Leahy. Good morning, everyone. Judge, it is good to see you back, and your family. Judge Sotomayor, yesterday you answered questions from 11 Senators. Frankly, I feel you demonstrated your commitment to the fair and impartial application of law. You certainly demonstrated your composure and patience and your extensive legal knowledge. Today we will have questioning from the remaining eight members of the Committee, and then just to set the schedule, once we finish that questioning, we will arrange a time to go into the traditional--something that we do every time for the Supreme Court nominee--closed-door session, which is usually not very lengthy, and then go back to others. I have talked with Senator Sessions. We will then go to a second round of questions of no more than 20 minutes each. I have talked with a number of Senators who have told me they will not use anywhere near that 20 minutes, although every Senator has the right to do it. Then I would hope we might be able to wrap it up. But we are going to go to Senator Cornyn, himself a former member of the Texas Supreme Court and former Attorney General. And, Senator Cornyn, it is yours.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Thank you, Mr. Chairman. Good morning, Judge.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Good morning, Senator. It's good to see you again.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Good to see you. I recall when we met in my office, you told me how much you enjoy the back-and-forth that lawyers and judges do, and I appreciate the good humor and attitude that you brought to this. And I very much appreciate your willingness to serve on the highest Court in the land. I am afraid that sometimes in the past these hearings have gotten so downright nasty and contentious that some people are dissuaded from willingness to serve, which I think is a great tragedy. And, of course, some have been filibustered. They have been denied the opportunity to have an up-or-down vote on the Senate floor. I told you when we visited in my office, that is not going to happen to you, if I have anything to say about it. You will get that up-or-down vote on the Senate floor. But I want to ask your assistance this morning to try to help us reconcile two pictures that I think have emerged during the course of this hearing. One is, of course, as Senator Schumer and others have talked about, your lengthy tenure on the Federal bench as a trial judge and court of appeals judge. And then there is the other picture that has emerged from your speeches and your other writings, and I need your help trying to reconcile those two pictures, because I think a lot of people have wondered about that. The reason why it is even more important that we understand how you reconcile some of your other writings with your judicial experience and tenure is the fact that, of course, now you will not be a lower-court judge subject to the appeals to the Supreme Court. You will be free as a United States Supreme Court Justice to basically do what you want with no court reviewing those decisions, harkening back to the quote we started with during my opening statement about the Supreme Court being infallible only because it is final. So I want to just start with the comments that you made about the wise Latina speech that, by my count, you made at least five times between 1994 and 2003. You indicated that this was really--and please correct me if I am wrong, I am trying to quote your words--``a failed rhetorical flourish that fell flat.'' I believe at another time you said they were ``words that don't make sense.'' And another time I believe you said it was ``a bad idea.'' Am I accurately characterizing your thoughts about the use of that phrase that has been talked about so much?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, generally, but the point I was making was that Justice O'Connor's words, the ones that I was using as a platform to make my point about the value of experience generally in the legal system, was that her words literally and mine literally made no sense, at least not in the context of what judges do or--what judges do. I didn't and don't believe that Justice O'Connor intended to suggest that when two judges disagree, one of them has to be unwise. And if you read her literal words that wise old men and wise old women would come to the same decisions in cases, that's what the words would mean. But that's clearly not what she meant. And if you listen to my words, it would have the same suggestion, that only Latinos would come to wiser decisions. But that wouldn't make sense in the context of my speech either, because I pointed out in the speech that eight, nine white men had decided Brown v. Board of Education. And I noted in a separate paragraph of the speech that no one person speaks in the voice of any group. So my rhetorical flourish, just like hers, can't be read literally. It had a different meaning in the context of the entire speech.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. But, Judge, she said that a wise man and a wise woman would reach the same conclusion. You said that a wise Latina woman would reach a better conclusion than a male counterpart. What I am confused about is, are you standing by that statement? Or are you saying that it was a bad idea and are you disavowing that statement?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. They didn't work. The message that the entire speech attempted to deliver, however, remains the message that I think Justice O'Connor meant, the message that prior nominees including Justice Alito meant when he said that his Italian ancestry he considers when he's hearing discrimination cases. I don't think he meant, I don't think Justice O'Connor meant that personal experiences compel results in any way. I think life experiences generally, whether it's that I'm a Latina or was a State prosecutor or have been a commercial litigator or been a trial judge and an appellate judge, that the mixture of all of those things, the amalgam of them, helped me to listen and understand. But all of us understand, because that's the kind of judges we have proven ourselves to be, we rely on the law to command the results in the case. So when one talks about life experiences and even in the context of my speech, my message was different than I understand my words have been understood by some.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. So do you stand by your words of yesterday when you said it was ``a failed rhetorical flourish that fell flat,'' that they are ``words that don't make sense,'' and that they are ``a bad idea'' ?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I stand by the words. It fell flat. And I understand that some people have understood them in a way that I never intended and I would hope that in the context of the speech that they would be understood.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. You spoke about the law students to whom these comments were frequently directed and your desire to inspire them. If, in fact, the message that they heard was that the quality of justice depends on the sex, race, or ethnicity of the judge, is that an understanding that you would regret?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I would regret that because for me the work I do with students--and it's just not in the context of those six speeches. As you know, I give dozens more speeches to students all the time, and to lawyers of all backgrounds, and I give--and have spoken to community groups of all types. And what I do in each of those situations is to encourage both students and, as I did when I spoke to new immigrants that I was admitting as students, to try to encourage them to participate on all levels of our society. I tell people that that's one of the great things about America, that we can do so many different things and participate so fully in all of the opportunities America presents. And so the message that I deliver repeatedly as the context of all of my speeches is: I have made it. So can you. Work hard at it. Pay attention to what you're doing and participate.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Let me ask about another speech you gave in 1996 that was published in the Suffolk University Law Review where you wrote what appears to be an endorsement of the idea that judges should change the law. You wrote, ``Change, sometimes radical change, can and does occur in the legal system that serves a society whose social policy itself changes.'' You noted with apparent approval that, ``A given judge or judges may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.'' Can you explain what you meant by those words?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The title of that speech was ``Returning Majesty to the Law.'' As I hope I communicated in my opening remarks, I'm passionate about the practice of law and judging, passionate in the sense of respecting the rule of law so much, the speech was given in the context of talking to young lawyers and saying, ``Don't participate in the cynicism that people express about our legal system.'' I----
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. What kind of--excuse me. I am sorry. I didn't mean to interrupt you.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And I was encouraging them not to fall into the trap of calling decisions that the public disagrees with, as they sometimes do, ``activism'' or using other labels; but to try to be more engaged in explaining the law and the process of law to the public. And in the context of the words that you quoted to me, I pointed out to them explicitly about evolving social changes, that what I was referring to is Congress is passing new laws all the time, and so whatever was viewed as settled law previously will often get changed because Congress has changed something. I also spoke about the fact that society evolves in terms of technology and other developments, and so the law is being applied to a new set of facts. In terms of talking about different approaches in law, I was talking about the fact that there are some cases that are viewed as radical, and I think I mentioned just one case, Brown v. Board of Education, and explaining and encouraging them to explain that process, too. And there are new directions in the law in terms of the Court. The Court, the Supreme Court, is often looking at its precedents and considering whether in certain circumstances--because precedent is owed deference for very important reasons. But the Court takes a new direction, and those new directions rarely, if ever, come at the initiation of the Court. They come because lawyers are encouraging the Court to look at a situation in a new way, to consider it in a different way. What I was telling those young lawyers is, ``Don't play into people's skepticism about the law. Look to explain to them the process.'' I also, when I was talking about returning majesty to the law, I spoke to them about what judges can do, and I talked about, in the second half of that speech, that we had an obligation to ensure that we were monitoring the behavior of lawyers before us so that when questionable ethical or other conduct could bring disrepute to the legal system, that we monitor our lawyers, because that would return a sense----
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Judge, if you would let me--I think we are straying away from the question I had talking about oversight of lawyers. Would you explain how, when you say judges should-- I am sorry. Let me just ask. Do you believe that judges ever change the law? I take it from your statement that you do.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. They change--we can't change law. We're not lawmakers. But we change our view of how to interpret certain laws based on new facts, new developments of doctrinal theory, considerations of whether--what the reliance of society may be in an old rule. We think about whether a rule of law has proven workable. We look at how often the Court has affirmed a prior understanding of how to approach an issue. But in those senses, there's changes by judges in the popular perception that we're changing the law.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. In another speech in 1996, you celebrated the uncertainty of the law. You wrote that the law is always in a, and I quote, ``necessary state of flux.'' You wrote that the law judges declare is not ``a definitive, capital `L' law that many would like to think exists,'' and ``that the public fails to appreciate the importance of indefiniteness in the law.'' Can you explain those statements? And why do you think indefiniteness is so important to the law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's not that it's important to the law as much as it is that it's what legal cases are about. People bring cases to courts because they believe that precedents don't clearly answer the fact situation that they are presenting in their individual case. That creates uncertainty. That's why people bring cases. And they say, Look, the law says this, but I'm entitled to that. I have this set of facts that entitle me to relief under the law. It's the entire process of law. If law was always clear, we wouldn't have judges. It's because there is indefiniteness not in what the law is, but its application to new facts that people sometimes feel it's unpredictable. That speech, as others I've given, is an attempt to encourage judges to explain to the public more of the process. The role of judges is to ensure that they are applying the law to those new facts, that they're interpreting that law with Congress' intent, being informed by what precedents say about the law and Congress' intent and applying it to the new facts. But that's what the role of the courts is, and obviously, the public is going to become impatient with that if they don't understand that process. And I'm encouraging lawyers to do more work in explaining the system, in explaining what we are doing as courts.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. In a 2001 speech at Berkeley, you wrote, ``Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging.'' A difference is physiological if it relates to the mechanical, physical or biochemical functions of the body, as I understand the word. What do you mean by that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I was talking just about that. There are in the law--there have been upheld in certain situations that certain job positions have a requirement for a certain amount of strength or other characteristics that maybe a person who fits that characteristic can have that job. But there are differences that may affect a particular type of work. We do that all the time. You need to----
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. We are talking about judging, though, aren't----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. Be a pilot who has good eyesight.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. We are not talking about pilots. We are talking about judging, right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, no, no, no. What I was talking about there, because the context of that was talking about the difference in the process of judging, and the process of judging for me is what life experiences bring to the process. It helps you listen and understand. It doesn't change what the law is or what the law commands. A life experience as a prosecutor may help me listen and understand an argument in a criminal case. It may have no relevancy to what happens in an antitrust suit. It's just a question of the process of judging. It improves both the public's confidence that there are judges from a variety of different backgrounds on the bench, because they feel that all issues will be more--better at least addressed--not that it's better addressed, but that it helps that process of feeling confidence that all arguments are going to be listened to and understood.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. So you stand by the comment or the statement that inherent physiological differences will make a difference in judging?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I'm not sure--I'm not sure exactly where that would play out, but I was asking a hypothetical question in that paragraph. I was saying, look we just don't know. If you read the entire part of that speech, what I was saying is let's ask the question. That's what all of these studies are doing. Ask the question if there's a difference. Ignoring things and saying, you know, it doesn't happen isn't an answer to a situation. It's consider it. Consider it as a possibility and think about it. But I certainly wasn't intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. As you can tell, I am struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sole standard and how any litigant can know where that will end. Let me ask you on another topic, there was a Washington Post story on May 29, 2009, that starts out saying, ``The White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor's scant record on abortion rights.'' And it goes on to say, ``The White House Press Secretary said the President did not ask Sotomayor specifically about abortion rights during their interview.'' Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes. It is absolutely correct. I was asked no question by anyone, including the President, about my views on any specific legal issue.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Do you know then on what basis, if that is the case--and I accept your statement--on what basis the White House officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in a challenge to Roe v. Wade?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir, because you just have to look at my record to know that in the cases that I addressed, on all issues I follow the law.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. On what basis would George Pavia, who is apparently a senior partner in the law firm that hired you as a corporate litigator, on what basis would he say that he thinks support of abortion rights would be in line with your generally liberal instincts? He is quoted in this article saying, ``I can guarantee she'll be for abortion rights.'' On what basis would Mr. Pavia say that, if you know?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I have no idea, since I know for a fact I never spoke to him about my views on abortion, frankly, my views on any social issue. George was the head partner of my firm, but our contact was not on a daily basis. I have no idea why he's drawing that conclusion because if he looked at my record, I have ruled according to the law in all cases addressed to the issue of the termination of abortion rights-- of women's right to terminate their pregnancy, and I voted in cases in which I have upheld the application of the Mexico City policy, which was a policy in which the government was not funding certain abortion-related activities.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Do you agree with his statement that you have generally liberal instincts?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and the attempts to ensure that. But he has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator, and my experience with corporate litigators is that they only look at the law when it affects the case before them. [Laughter.]
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. Well, I hope, as you suggested, not only liberals endorse the idea of equal opportunity in this country. That is, I think, a bedrock doctrine that undergirds all of our law. But that brings me, in the short time I have left, to the New Haven firefighter case. As you know, there are a number of the New Haven firefighters who are here today and will testify tomorrow. And I have to tell you, Your Honor, as a former judge myself, I was shocked to see the sort of treatment that the three-judge panel you served on gave to the claims of these firefighters by an unpublished summary order, which has been pointed out in the press would not be likely to be reviewed or even caught by other judges on the Second Circuit, except for the fact that Judge Cabranes read about a comment made by the lawyer representing the firefighters in the press that the court gave short shrift to the claims of the firefighters. Judge Cabranes said, ``The core issue presented by this case, the scope of a municipal employer's authority to disregard examination results based solely on the successful applicant, is not addressed by any precedent of the Supreme Court or our circuit.'' And looking at the unpublished summary order, this three-judge panel of the Second Circuit doesn't cite any legal authority whatsoever to support its conclusion. Can you explain to me why you would deal with it in a way that appears to be so--well, ``dismissive'' may be too strong a word--but that avoids the very important claim such that the Supreme Court ultimately reversed you on, that was raised by the firefighters' appeal?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I can't speak to what brought this case to Judge Cabranes' attention. I can say the following, however: When parties are dissatisfied with a panel decision, they can file a petition for rehearing en banc. And, in fact, that's what happened in the Ricci case. Those briefs are routinely reviewed by judges, and so publishing by summary order--or addressing an issue by summary order or by published opinion doesn't hide a party's claims from other judges. They get the petitions for rehearing. Similarly, parties, when they are dissatisfied with what a circuit has done, file petitions for certiorari, which is a request for the Supreme Court to review a case, and so the Court looks at that as well. And so regardless of how a circuit decided a case, it's not a question of hiding it from others. With respect to the broader question that you are raising, which is why do you do it by summary order or why do you do it in a published opinion or in a per curiam, the question--or the practice is that about 75 percent of circuit court 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. And in this case, there was a 78-page decision by the district court. It adequately explained the question that the Supreme Court addressed and reviewed. And so to the extent that a particular panel considers that an issue has been decided by existing precedent, that's a question that the court above can obviously revisit, as it did in Ricci, where it looked at it and said, well, we understand what the circuit did, we understand what existing law is, but we should be looking at this question in a new way. That's the job of the Supreme Court. I would----
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. But, Judge, even the district court admitted that a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that the exams--they knew that were the exams certified, the mayor would incur the wrath of Reverend Boise Kimber and other influential leaders of New Haven's African American community. You decided that based on their claim of potential disparate impact liability that there was no recourse, that the city was justified in disregarding the exams and, thus, denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court's opinion. And ultimately, as you know, the Supreme Court said that you just can't claim potential disparate impact liability as a city and then deny someone a promotion based on the color of their skin. There has to be a strong basis in evidence. But you didn't look to see whether there was a basis in evidence to the city's claim. Your summary opinion, unpublished summary order, didn't even discuss that. Don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately denied their claim?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As you know, the court's opinion, issued after discussions en banc, recognized, as I do, the hardship that the firefighters experienced. That's not been naysayed by anyone. The issue before the court was a different one, and the one that the district court addressed was what decision the decision makers made, not what people behind the scenes wanted the decision makers to make, but what they were considering. And what they were considering was the state of the law at the time. And in an attempt to comply with what they believed the law said and what the panel recognized as what the Second Circuit precedent said, that they made a choice under that existing law. The Supreme Court in its decision set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. That test was not discussed with the panel. It wasn't part of the arguments below. That was a decision by the Court, borrowing from other areas of the law and saying we think this would work better in this situation.
Senator John Cornyn (TX)
Senator
(R)
Senator Cornyn. My time is up. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Thank you very much. I will put in the record a letter of support for Judge Sotomayor's nomination from the United States Hispanic Chamber of Commerce on behalf of its 3 million Hispanic-owned business members, 16 undersigned organizations, including the El Paso Hispanic Chamber of Commerce, Greater Dallas Hispanic Chamber of Commerce, the Houston Hispanic Chamber of Commerce, the Odessa Hispanic Chamber of Commerce, and a similar letter from the Arizona Hispanic Chamber of Commerce. I had meant to put those in the record before. We will put them in the record now. [The letters appear as a submission for the record.]
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Mr. Chairman, I would offer a letter for the record from the National Rifle Association in which they express serious concern about the nomination of Judge Sonia Sotomayor. Also I noticed that the head of that organization, Mr. LaPierre, wrote an article this morning raising increased concern after yesterday's testimony, and I would also offer for the record a letter from Mr. Richard Land, of the Ethics and Religious Liberty Commission of the Southern Baptist Convention, also raising concerns.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Without objection, those will be made part of the record. [The letters appear as a submission for the record.] Chairman Leahy. Do you have anything else?
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Nothing else.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. I will yield to Senator Cardin.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Thank you, Mr. Chairman. Judge Sotomayor, good morning. Welcome back to our committee. I just want you to know that the baseball fans of Baltimore knew there was a judge somewhere that changed in a very favorable way the reputation of Baltimore forever. You are a hero and they now know it is Judge Sotomayor. You are a hero to Baltimore baseball fans. Let me explain. The major league baseball strike, you allowed the season to continue so Cal Ripken could become the iron man of baseball in September 1995. So we just want to invite you--as a baseball fan, we want to invite you to an Orioles game and we promise it will not be when the Yankees are playing, so you can root for the Baltimore Orioles. [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's a great invitation, and good morning, Senator. You can assure your Baltimore fans that I have been to Camden Yards. It's a beautiful stadium.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Well, we think it is the best. Of course, it was the beginning of the new trends of baseball stadiums, and you are certainly welcome. Before this hearing, the people of this country knew that the president had selected someone with incredible credentials to be a Supreme Court member. Now, they know the person is able and is capable and understands the law and has been able to understand what the appropriate role is for a judge in interpreting the law and has done very well in responding to the members of the U.S. Senate, which I think bodes well for your interaction with attorneys and your colleagues on the bench in having a thorough discussion of the very important issues that will affect the lives of all people in our nation. I do want to, first, start with the judicial temperament issue and the reference to the Almanac on the Federal Judiciary. I just really want to quote from other statements that were included in that almanac, where they were commenting about you and saying that she is very good, she is bright, she is a good judge, she is very smart, she is frighteningly smart, she is intellectually tough, she is very intelligent, she has a very good commonsense approach to the law, she looks at the practical issues, she is good, she is an exceptional judge overall, she is engaged in oral argument, she is well prepared, she participates actively in oral argument, she is extremely hardworking and well prepared. And I want to quote from one of the judges on your circuit, Judge Miner, who was appointed by President Reagan, when he said, ``I don't think I go as far as to classify her in one camp or another. I think she just deserves the classification of an outstanding judge.'' I say that because maybe you would like to comment to these more favorable comments about how the bar feels about your service on the bench.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I thank those who have commented in the way they did. I think that most lawyers who participate in argument before me know how engaged I become in their arguments and trying to understand them. And as I indicated yesterday, that can appear tough to some people, because active engagement can sometimes feel that way. But my style is to engage as much as I can so I can ensure myself that I understand what a party is intending to tell me. I am, in terms of what I do, always interested in understanding, and so that will make me an active participant in argument. As I noted yesterday, I have colleagues who never ask questions. There are some judges on the Supreme Court who rarely ask questions and others ask a lot of questions. Judges approach issues in different ways, with different styles, and mine happens to be on one end of the style and others choose others.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Well, I thank you for that response. I agree with you that the Constitution and Bill of Rights are timeless documents and have served our nation well for over 200 years and are the envy of many other nations. Now, there are many protections in the Constitution, but I would like to talk a little bit about civil rights and the basic protections in our Constitution and how we have seen a progression in the Constitution and Bill of Rights through constitutional amendments, including the 13th, 14th, 15th and 19th, through congressional action, through the passage of such bills as the Civil Rights Act of 1964, the Voting Rights Act of 1965, Supreme Court decisions that we have talked about that have changed civil rights in America and made it possible for many people to have the opportunities of this country that otherwise would have been denied. We have made a lot of progress since the days of segregated schools and restrictions on people's opportunities to vote. But I think we would all do well to remember the advice given to us by our colleague, Senator Edward Kennedy, the former chairman of this Committee, as we talk about the civil rights struggle; he says, ``The work goes on, the cause endures, the hope still lives, and the dream shall never die.'' So I say that as an introduction to one area of civil rights, and that is the right to vote, a fundamental right. My own experience in 2006, that is just a few years ago, causes me to have concerns. In my own election, I found that there were lines longer in the African-American precincts to vote than in other precincts, and I was curious as to why this took place. They did not have as many voting machines. There were a lot of irregularities, and it caused a lot of people who had to get back to work to be denied their right to participate. We also found, on election day, fraudulent sample ballots that were targeted to minority voters in an effort to diminish their importance in the election. I mention that because that happened not 50 years ago, but happened just a few years ago. Congress renewed the Voting Rights Act by rather large votes, 98-0 in the U.S. Senate, 390-33 in the House of Representatives; this reflects a clear intent of Congress to continue to protect voters in this country. In Northwest Austin Municipal Utility District Number One v. Holder, one justice on the court, in dictum, challenged Congress' authority to extend the civil rights case. Now, I say that knowing your view about giving due deference to Congress, particularly as it relates to expanding and extending civil rights protections. So my question to you is tell me a little bit about your passion for protecting the right to vote, to make sure that the laws are enforced as Congress intended, to guarantee to every American the right to participate at the voting place.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. When we speak about my passion, I don't think that the issue of guaranteeing each citizen the right to vote is unique to me or that it's different among any Senator or among any group of people who are Americans. It is a fundamental right and it is one that you've recognized, Congress has addressed for decades and has done an amazing job in passing a wide variety of statutes in an effort to protect that right. The question that a court would face in any individual situation is whether an act of Congress conflicts with some right of either the state or an individual with respect to the issue of voting. There could be other challenges raised on a wide variety of different bases, but each case would present its own unique circumstance. There is one case involving the Voting Rights Act where I addressed the issue of the right to vote and in that case, I issued a dissent on an en banc ruling by my court. For the public who may not understand what en banc ruling means, when the whole court is considering an issue. In that case, if it wasn't 13, it may have been 12 members of the court, we're a complement of 13 judges, but I, right now, can't remember if we were a full complement at the time, considering an issue. The majority upheld a state regulation barring a group of people from voting. I dissented on a very short opinion, one-paragraph opinion, saying, ``These are the words of Congress in the statute it passed, and the words are that no state may impose a--and I'm paraphrasing it now. I'm not trying to read the statute, but no condition or restriction on voting that denies or abridges the right to vote on the basis of race. I noted that given the procedural posture of that case, that the plaintiff had alleged that that's exactly what the state was doing, and I said that's the allegation on the complaint. That's what a judge has to accept on the face of the complaint. We've got to give him a chance to prove that, and that, to me, was the end of the story. To the extent that the majority believed that--and there was a lot of discussion among the variety of different opinions in the case as to whether this individual could or could not prove his allegation and there was a suggestion by both sides that he might never be able to do it. My point was a legal one. These are Congress' words. We have to take them at their word. And if there's an end result of this process that we don't like, then we have to leave that to Congress to address that issue. We can't fix it by ruling against what I viewed as the express words of Congress.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Let me use your quote there, because I thought it was particularly appropriate. You said, ``I trust the Congress would prefer to make needed changes itself rather than have the courts do so for it,'' and I think the members of this Committee would agree with you. As you responded to Senator Grassley in regard to the Riverkeeper case, you said you give deference to Congress. I think we all share that. One of my concerns is that we are seeing judicial activism in restricting the clear intent of Congress in moving forward on fundamental protections. Let me move, if I might, to the environment, which is an area that is of great concern to all of us. In the past 50 years, Congress has passed important environmental laws, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, the Safe Drinking Water Act, and Superfund. Despite the progress we have made over the years, it is important that we keep advancing the protections in our environment. During your testimony yesterday, you made it clear that you understand that Senators and Members of Congress elected by the people are the ones making policy by passing laws and you also made it clear that judges apply the laws enacted and that they should do so or least they should do so with deference to the intent of Congress. Yet, we have seen, in recent decisions of the Supreme Court, like the Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers and Rapanos v. United States, that they have forced the EPA to drop more than 500 cases against alleged polluters. These decisions have impact and it is clear to many of us that they reject longstanding legal interpretations and ignore the science that served as the foundations for the laws passed by Congress and the intent of Congress to protect American people by providing them with clean water, clean air and a healthy environment. As a Senator from Maryland, I am particularly concerned about that as it relates to the efforts that we are making on the Chesapeake Bay. Now, I understand that these decisions are now precedent and they are binding and that it may very well require the Congress to pass laws further clarifying what we meant to say so that we can try to get back on track. I understand that. But I would like you to comment and, I hope, reinforce the point that you have said that in reaching decisions that come to the bench, whether they are environmental laws or other laws to protect our society, you will follow the intent of Congress and will not try to supplant individual judgment that would restrict the protections that Congress has passed for our community.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I believe my cases, my entire record shows that I look at the acts of Congress, as I think the Supreme Court does, with deference, because that is the bedrock of our constitutional system, which is that each branch has a different set of constitutional powers; that deference must be given to the rights of each branch in each situation; that it is exercising its powers; and, to the extent that the court has a role, because it does have a role, to ensuring that the Constitution is followed, it attempts to do that. When I say ``attempt,'' but it always attempts it with a recognition of the deference it owes to the elected branches in terms of setting policy and making law.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Thank you for that response. Let me turn, if I might, to our personal backgrounds. There has been a lot of discussion here about what each of us brings to our position in public life. Progress for women in this country has not come easily or quickly. At one time, women could not vote, could not serve on juries, could not hold property. I sit here today wanting to feel confident that the Supreme Court and its justices who make key decisions on women's rights in society will act to ensure continued progress for equality between men and women. Now, we all agree that in rendering an individual decision, gender or ethnic backgrounds should not affect your judgment. There is an importance to diversity which I think we have all talked about. Each of us brings our life experiences to our job. Your life experience at Princeton, I think, serves as an example. You attended the school that F. Scott Fitzgerald 90 years ago called ``the pleasantist country club in America,'' with very restrictive policies as to who could attend Princeton University. By 1972, your freshman class, it was a different place, but still far from where it should be. And I admire your efforts to change that at Princeton and you were actively involved in improving diversity at that school, and Princeton is a better place today because of your efforts. I think of my own experiences at law school, University of Maryland Law School, which denied admission to Thurgood Marshall and, in my class, had very few women. Times have changed. Justice Ginsberg said, referring to the importance of women on the bench, ``I think the presence of women on the bench made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title 7.'' So on behalf of myself, on behalf of my daughter and two granddaughters, I want to hear from you the importance of different voices in our schools, in our Congress, and on the Supreme Court of the United States as to how having diversity, the importance of diversity, and your views as to what steps are appropriate for government to take in helping to improve diversity.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Your comments about your daughter and granddaughter makes me remember a letter I received when I was being nominated to the circuit court. It was from a woman who said she had 19 daughters and grandchildren and how much pride she took in knowing that a woman could serve on a court like the second circuit. And I realized then how important the diversity of the bench is to making people feel and understand the great opportunity American provides to all its citizens, and that has value. That's clear. With respect to the issue of the question of what role diversity serves in the society, it harkens back almost directly to your previous question. I've been overusing that word ``harkens,'' sorry. It almost comes around to your earlier question, which is that issue is one that starts with the legislative branches and the government, the executive bodies, and employers who look at their workforce, that look at the opportunities in society, and make policy decisions about what promotes that equal opportunity in the first instance. The court then looks at what they have done and determines whether that action is constitutional or not. And with respect at least to the education field, in a very recent set of cases, the Supreme Court looked at the role of diversity in educational decisions as to which students they would admit, and the court upheld the University of Michigan's law school admissions policy, which would--because the school believed that it needed to promote as wide a body and diverse a body of students to ensure that life perspectives, that the experience of students would be as fulsome as they wished. And they used race there as one of many factors, but not one that compelled individual choices of the student. The court upheld that. And Justice O'Connor, in the opinion she wrote, authored, expressed the hope that in 25 years, race wouldn't even need to be considered. In a separate case, the University of Michigan's undergraduate admissions policy, the court struck that down and it struck it down because it viewed the use of race as a form of impermissible quota, because it wasn't based on an individual assessment of the people applying, but as an impermissible violation of the equal protection clause and of the law. These situations are always looked at individually and, as I said, in the context of the choices that Congress, the executive branch, an employer is making and the interest that it's asserting and the remedy that it's creating to address the interest it's trying to protect. All of that is an individual question for the courts.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. And you need to look at all the facts in reaching those decisions, which you have stressed over and over again. I want a justice who will continue to move the court forward in protecting those important civil rights. I want a justice who will fight for people like Lawrence King, who, at the age of 15, was shot in school because he was openly gay. I want a justice who will fight for women like a 28-year-old Californian who was gang raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd, who was beaten and dragged by a truck for two miles because he was black. So we need to continue that focus. You talked about race and I think about the Gant case, where a 6-year-old black child was removed from school and was treated rather harshly with racial harassment. And in your dissent, you stated that the treatment this lone black child encountered during his brief time in Cook Hill's first grade to have been not merely arguable, unusual, indisputable discretion, but unprecedented and contrary to the school's established policy. Justice Blackmun spoke, ``In order to get beyond racism, we first must take an account of race.'' And if you ignore race completely, aren't you ignoring facts that are important in a particular case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, it depends on the context of the case that you're looking at. In the Gant case, for example, there were a variety of different challenges brought by the plaintiff to the conduct that was alleged the school had engaged in. I joined the majority in dismissing some of the claims as not consistent with law. But in that case, there was a disparate treatment element and I pointed out to the set of facts that showed or presented evidence of that disparate treatment. That's the quote that the quote that you were reading from, that this was a sole child who was treated completely different than other children of a different race in the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help. That is obviously different, because what you're looking at is the law as it exists and the promise that the law makes to every citizen of equal treatment in that situation.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. I agree. I think you need to take a look at all the facts and circumstances and to ignore race, you are ignoring an important fact. Let me talk a little bit about privacy, if I might. Justice Brandeis describes privacy as the right to be left alone. In other words, if we must restrict this right, it must be minimal and protections must occur before any such action occurs. The Supreme Court has advanced rights of privacy in the Meyer case and the Loving case, which established the fundamental rights of persons to raise families and to marry whom they please, regardless of race; the Lawrence case, which held that states cannot criminalize homosexual conduct; Griswold, which held that allowed for family planning as a fundamental right; and, of course, Roe v. Wade, which gave women the right to control their own bodies. I just would like to get your assessment of the role the court faces on privacy issues in the 21st century, recognizing that our Constitution was written in the 18th century and the challenges today are far different than they were when the Constitution was written as it relates to privacy. The technologies are different today and the circumstances of life are different. How do you see privacy challenges being confronted in the 21st century in our Constitution and in the courts?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The right to privacy has been recognized, as you know, in a wide variety of circumstances for more than probably 90 years now, close to 100. That is a part of the court's precedence in applying the immutable principles of the Constitution, the liberty provision of the due process clause, and recognizing that that provides a right to privacy in a variety of different settings. You have mentioned that line of cases and there are many others in which the court has recognized that as a right. In terms of the coming century, it's guided by those cases, because those cases provide the courts precedence and framework, and with other cases, to look at how we will consider a new challenge to a new law or to a new situation. That's what precedent's do. They provide a framework. The Constitution remains the same. Society changes. The situations it brings before courts change, but the principles are the words of the Constitution guided by how precedence gives--or has applied those principles to each situation and then you take that and you look at the new situation.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. In the time that I have remaining, I would like to talk about pro bono. I enjoyed our conversation when you were in my office talking about your commitment to pro bono. I think, as attorneys, we all have a special responsibility to ensure equal justice and that requires equal access. The Legal Aid lawyers, per capita, are about 61 per 6,800. For private attorneys, it is one per 525. This is not equal justice under the law as promised by the etching on the entrance to the United States Supreme Court. Now, it makes a difference if you have a lawyer. If you have a lawyer, you are more likely to be able to save your home, to get the health care that you need, to be able to deal with consumer problems. I had the honor of chairing the Maryland Legal Services Corporation. I chaired a commission that looked into legal services in Maryland. I am proud of the fact that we helped establish, at the University of Maryland Law School and University of Baltimore Law School, required clinical experiences for our law students so they not only get the experience of handling the case, but understand the need to deal with people who otherwise could not afford an attorney. Congress needs to do more in this area. There is no question about that, and I am hopeful that we will reauthorize the Legal Service Act and provide additional resources. But I would like to get your view as to what is the individual responsibility of a lawyer for equal justice under the law, including pro bono, and how you see the role of the courts in helping to establish the efforts among the legal community to carry out our responsibility.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I know that there's been a lot of attention paid to one speech and its variants that I've given. If you look at the body of my speeches, public service and pro bono work is probably the main topic I speak at--I speak about. Virtually every graduation speech I give to law students, speeches I've given to new immigrants being sworn in as citizens, to community groups of all types is the importance of participation in bettering the conditions of our society, active involvement in our communities. It doesn't have to be active involvement in politics. I tell people that. Just get involved in your community, work on your school boards, work in your churches, work in your community to improve it. The issue of public service is a requirement under the code of the American Bar Association. Virtually every state has a requirement that lawyers participate in public service in some way. I have given multiple speeches in which I've talked to law school bodies and said, ``Make sure your students don't leave your school without understanding the critical importance of public service in what they do as lawyers.'' In that, we are in full agreement, Senator. To me, that's a core responsibility of lawyering. Our founding fathers, they became what they became, our founding fathers, because of their fundamental belief of involvement in their society and public service, and it's, to me, a spirit that is the charge of the legal profession, because that's what we do, we help people; in a different way than doctors do, but helping people receive justice under the law is a critical importance of our work.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Very, very well said. I look forward to working with Congress and the courts in advancing a strategy. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much, Senator Cardin.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Senator Coburn. Thank you, Mr. Chairman. I'd ask unanimous consent to put an article from the newspaper this morning, The Washington Times.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Without objection it will be placed in the record.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Welcome again. First of all, let me apologize to you because I was not able to hear, although I got to read some of your testimony yesterday. We have a schedule that says we must finish health care within a certain time whether we get it right or wrong, we've got to get it done in a certain time. And so I was involved with that and I apologize. No. 2 is I apologize to you for the outbursts that have occurred in this committee. Anybody who values life like I do and who is pro-life recognizes that the way you change minds is not yell at people, you love them and you care about their concerns and you create to a level of understanding, not condemnation. So for that, I apologize. I admire your composure and I thank the Chairman and the Ranking Member for the way they handled that as well. I want to spend a few moments with you, but I kind of want to change the tone here a little bit in terms of what we talk about. A lot of Americans are watching this hearing and when I get together with a couple of doctors, they don't understand half of what I say. When two lawyers talk, most of us who aren't lawyers, like I'm not, have trouble following. So I want us to use words that the American people can truly understand as I both ask you questions and as you answer them. I will try to do that and I hope that you will as well because I think it benefits our country to do that. You have been asked a lot of questions about abortion and you have said that Roe v. Wade has set a law. Where are we today? What is the settle law in America about abortion?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can speak to what the court has said in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the court holding of Roe v. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman's constitutional right. That is my understanding of what the state of the law is.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Let me give you a couple of cases. Let's say I'm 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum, the lower part of the back on my baby and I feel like I just can't handle a child with that. Would it be legal in this country to terminate that child's life?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can't answer that question in the abstract because I would have to look at what the state of the state's law was on that question and what the state said with respect to that issue. I can say that the question of the number of weeks that a woman is pregnant has been approached to looking at a woman's act as was changed by Casey. The question is is the state regulation regulating what a woman does an undue burden. And so I can't answer your hypothetical because I can't look at it as an abstract without knowing what state laws exist on this issue or not. And even if I knew that, I probably couldn't opine because I'm sure that situation might well arise before the court.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Well, does technology in terms of the advancement of technology, should it have any bearing whatsoever on the way we look at Roe v. Wade? For example, published reports most recently of a 21-week, 21-week, that's 142 days, fetus alive and well now at 9 months of age with no apparent complications because the technology has advanced so far that we can now save children who are born prematurely at that level. Should that have any bearing as we look at the law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The law has answered a different question. It has talked about the constitutional right of women.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I understand that.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In certain circumstances. As I indicated, the issue becomes one of what is the state regulation in any particular circumstance.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I understand. But all I'm asking is should it have any bearing?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can't answer that in the abstract because the question as it would come before me wouldn't be in the way that you form it as a citizen. It would come to me as a judge in the context of some action that someone is taking, whether if it is the state, the state, if it is a private citizen being controlled by the state challenging that action. Those issues are----
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. But viability is a portion of a lot of that, and a lot of the decisions have been made based on liability. If we now have liability at 21 weeks, why would that not be something that should be considered as we look at the status of what can and cannot happen in terms of this right to privacy that has been granted in Roe v. Wade?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. All I can say to you is what the court has done.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And the standard that the court has applied, what factors it may or may not look at within a particular factual situation can't be predicted in a way to say yes, absolutely, that's going to be considered. No, this won't be considered.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. All I'm asking is whether it should. Should viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on so many people. Your answer is that you can't answer it.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can't because that's not a question that the court reaches out to answer. That is a question that gets created by a state regulation of some sort or an action by the state that may or may not according to some claimant, place an undue burden on her. We don't make policy choices in the court. We look at the case before us with the interests that are argued by the parties, look at our precedent and try to apply its principles to the arguments parties are raising.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I'm reminded of one of your coats that says you do make policy and I won't continue that. I'm concerned and I think many others are. Does a state legislature have the right under the Constitution to determine what is death? Have we statutorily defined, and we have in 50 states and most of the territories, what is the definition of death. You think that's within the realm of the Constitution that states can do that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It depends on what they are applying that definition to. So there are situations in which they might and situations where that definition would or would not have applicability to the dispute before the court. All state action is looked at within the context of what the state is attempting to do and what liabilities it is imposing.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. But you would not deny the fact that states do have the right to set up statutes that define, that give guidance to their citizen, what constitutes death.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, it depends on in what context they are attempting to do that.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. They are doing it so they limit the liability of others with regard to that decision which would inherently be the right of a state legislature as I read the Constitution. You may have a different response to that. Which brings me back to technology again. As recently as 6 months ago, we now record fetal heartbeats at 14 days post conception, we record fetal brain waves at 39 days post conception. I don't expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues. We have this schizophrenic rule of the law as we have defined death as the absence of those, but we refuse to define life as the presence of those. All of us are dependent at different levels on other people during all stages of our development from the very early in the womb, outside of the womb, to the very late. It concerns me that we are so inaccurate, or inaccurate is an improper term. Inconsistent in terms of our application of logic. You said that Roe v. Wade did set a law yesterday and I believe it is settled under the basis of the right to privacy which has been there. So the question I'd like to turn to next is in your ruling, the Second Circuit ruling, and I'm trying to remember the name of the case, Maloney, the position was that there is not an individual fundamental right to bear arms in this country. Is that a correct understanding of that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Okay. Please educate me if you would.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In the Supreme Court's decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the second amendment, an important right, and one that limited the actions the Federal Government could take with respect to the position of firearms. In that case we are talking about handguns. The Maloney case presented a different question. That was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to me. To most people the word by its dictionary term is critically important, central, fundamental, it is sort of rock basis. Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning which means is that amendment of the Constitution incorporated against the states.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Through the Fourteenth Amendment?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And others. But generally, and I shouldn't say and others, through the 14th. The question becomes whether and how that amendment to the Constitution, that protection, applies or limits the states to act. In Maloney, the issue for us was a very narrow one. We recognized that Heller held, and it is the law of the land right now in the sense of precedent that there is an individual right to bear arms as it applies to Federal Government regulation. The question in Maloney was different for us. Was that right incorporated against the states. We determined that given Supreme Court precedent, a precedent that had addressed that precise question and said it is not, so it wasn't fundamental in that legal doctrine sense, that was the court's holding.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Did the Supreme Court say in Heller that it was not, or did they just fail to rule on it?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, they failed to rule on it, you're right. But I----
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. There is a very big difference there.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I agree.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Let me continue with that. So I sit in Oklahoma in my home, and what we have today as law on the land as you see it is I do not have a fundamental incorporated right to bear arms, as you see the law today.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is not how I see the law.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Well, as you see the interpretation of the law. In your opinion of what the law is today, is my statement a correct statement?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, it's not my interpretation. I was applying both Supreme Court precedent deciding that question and Second Circuit precedent that had directly answered that question and said it's not incorporated. The issue of whether or not it should be is a different question, and that is the question that the Supreme Court may take up. In fact, in his opinion, Justice Scalia suggested it should, but it is not what I believe. It is what the law has said about it.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. So what does the law say today about the statement? Where do we stand today about my statement that I have--I claim to have a fundamental, guaranteed, spelled out right under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can't answer the question of incorporation other than to refer to precedent. Precedent says----
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I understand.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. As the Second Circuit interpreted the Supreme Court's precedent----
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I understand.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. That it is not incorporated. It is also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Context, yes.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And by that, I mean what the court will look at is a state regulation of your right and then determine can the state do that or not. So even once you recognize a right, you are always considering what the state is doing to limit or expand that right and then decide is that Okay constitutionally.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. It is very interesting to me. I went back and read the history of the debate on the Fourteenth Amendment, and for many of you who don't know, what generated much of the Fourteenth Amendment was in reconstruction. Southern states were taking away the right to bear arms by freed men, recently freed slaves. Much of the discussion in the Congress was to restore that right of the Second Amendment through the Fourteenth Amendment to restore an individual right that was guaranteed under the Constitution. So one of the purposes for the Fourteenth Amendment, one of the reasons it came about is because those rights were bring abridged in the southern states post Civil War. Let me move on. In the Constitution we have the right to bear arms. Whether it is incorporated or not, it is stated there. I'm having trouble understanding how we got to a point where a right to privacy which is not explicitly spelled out but it spelled out to some degree in the Fourth Amendment, which has set a law and is fixed, and something such as the Second Amendment which is spelled out in the Constitution has not set a law and fixed. I don't want you to answer that specifically. What I would like to hear you say is how did we get there? How did we get to the point where something that is spelled out in our Constitution isn't guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer? I don't want to tie you down on any future decisions, but how did we get there when we can read this book and it says certain things and those aren't guaranteed, but the things that it doesn't say are?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. One of the frustrations with judges and their decisions by citizens is that, and this was an earlier response to Senator Cornyn. What we do is different than the conversation that the public has about what it wants the law to do. We don't, judges, make law. What we do is we get a particular set of facts presented to us, we look at what those facts are, what in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the Constitution and see what it says and attempt to take its words and the principles and the precedents that have described those principles and apply them to the facts before you. In discussing the Second Amendment as it applied to the Federal Government, Justice Scalia noted that there had been long regulations by many states on a variety of different issues related to the possession of guns. He wasn't suggesting that all regulation was unconstitutional. He was holding in that case that DC's particular regulation was illegal. As you know, there are many states that prohibit felons from possessing guns. So does the Federal Government. So it's not that we make a broad policy choice and say this is what we want, what judges do. What we look at is what other actors in the system are doing, what their interest in doing it is and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix. All of that is the court's function. So I can't explain it philosophically. I can only explain it by its setting and what the function of judging is about.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Thank you. Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself? Personal self-defense. Do I have a right to personal self-defense?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? I can't think of one. I could be wrong, but I can't think of one. Generally, as I understand, most criminal law statutes are passed by states. I'm also trying to think if there is any Federal law that includes a self-defense provision or not. I just can't. What I was attempting to explain is the issue of self- defense is usually defined in criminal statutes by the state's laws. I would think, although I haven't studied all of the state's laws. I'm intimately familiar with New York.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. But do you have an opinion or can you give me your opinion of whether or not in this country I personally as an individual citizen have the right to self-defense?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, I don't know. I don't know if that legal question has been ever presented.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I wasn't asking about the legal question. I'm asking about your personal opinion.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But that is sort of an abstract question with no particular meaning to me outside of----
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Well, I think that's what American people want to hear, Your Honor. They want to know, do they have a right to personal self-defense. Could the Second Amendment mean something under the Fourteenth Amendment? Does what the Constitution, how they take the Constitution, not how our bright legal minds, but what they think is important. Is it Okay to defend yourself in your home if you're under attack? In other words, the general theory is do I have that right? And I understand if you don't want to answer that because it might influence your position that you might have in a case, and that's a fine answer with me. Those are the kinds of things that people would like for us to answer and would like to know. Not how you would rule or what you are going to rule, and specifically what you think about it, but just yes or no. Do we have that right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I know it's difficult to deal with someone like a judge who is so sort of--whose thinking is so cornered by law.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I know.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Could I----
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Kind of like a doctor. I can't quit using doctor terms.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's exactly right. But let me try to address what you are saying in the context that I can, which is what I have experience with, which is New York criminal law because I was a former prosecutor. I am talking in very broad terms, but under New York law, if you are being threatened with imminent death or very serious injury, you can use force to repel that. That would be legal. The question that would come up and does come up before juries and judges is how imminent is the threat? If the threat was in this room, I'm going to come get you and you go home and get, or I go home, I don't want to suggest I am by the way. Please, I don't want anybody to misunderstand what I'm trying to say. If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend----
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. You will have lots of explaining to do.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I'd be in a lot of trouble then. But I couldn't do that under a definition of self-defense. So that is what I was trying to explain in terms of why in looking at this as a judge, I'm thinking about how that question comes up and how the answer can differ so radically given the hypothetical facts before you.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. The problem is we doctors think like doctors. It is hard to get out of the doctor's skin. Judges think like judges, lawyers think like lawyers. What American people want to see is inside, what your gut says. Part of that is why we are having this hearing. I want to move to one other area. You have been fairly critical of Justice Scalia's criticism of the use of foreign law in making decisions. I would like for you to cite for me either in the Constitution or in the oath that you took outside of treaties the authority that you can have to utilize foreign law in deciding cases in a court's law in this country.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I have actually agreed with Justice 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. That is in treaty interpretation or in conflicts of law because it is a different system of law.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. But I accepted that. I said outside of those. In other areas where you will sit in judgment, can you cite for me the authority either given in your oath or the Constitution that allows you to utilize laws outside of this country to make the decisions about laws inside this country?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. My speech and my record on this issue, because I have never used it to interpret the Constitution or to interpret American statute is that there is none. My speech has made that very clear.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. So you stand by it. There is no authority for a Supreme Court Justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Unless the statute requires you or directs you to look at foreign law, and some do by the way, 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.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Well, let me give you one of your quotes. `To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is to close their mind to good ideas. Nothing in the American legal system prevents us from considering those ideas.' We don't want judges to have closed minds, just as much as we don't want judges to consider legislation and foreign law that is developed through bodies, elected bodies outside of this country to influence either rightly so or wrongly so, against what the elected representatives and Constitution of this country says. So would you kindly explain the difference that I perceive in both this statement versus the way you just answered?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There is none. If you look at my speech, you will see that repeatedly I pointed out both that the American legal system was structured not to use foreign law, it repeatedly underscored that foreign law could not be used as a holding as precedent or to interpret the Constitution of the statute. What I pointed out to in that speech is that there is a public misunderstanding of the word use. What I was talking about, one doesn't use those things in the sense of coming to a legal conclusion in a case. What judges do, and I cited Justice Ginsburg, is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider. But that is just thinking. It's an academic discussion when you're talking about thinking about ideas. Then it is how most people think about the citation of foreign law in a decision. They assume that if there is a citation to foreign law, that is driving the conclusion. In my experience when I have seen other judges cite foreign law, they are not using it to drive the conclusion, they are using just to point something out about a comparison between American law or foreign law. But they are not using it in the sense of compelling a result.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. I'm not sure I agree with that on certain Eighth Amendment and Fourteenth Amendment cases. Let me go to another--I have just a short period of time. Do you feel--it has been said that we should worry about what other people think about us in terms of how we interpret our own law, and I'm paraphrasing not very well I believe. Is it important that we look good to people outside of this country? Or is it more important that we have a jurisprudence that is defined correctly and followed correctly according to our Constitution? And whatever the results may be, it is our result rather than a politically correct result that might please other people in the world?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. We don't render decisions to please the home crowd or any other crowd. I know that because I have heard speeches by a number of Justices, that in the past, Justices have indicated that the Supreme Court hasn't taken many treaty cases, that maybe it should think about doing that because we are not participating in the discussion among countries on treaty positions that are ambiguous. That may be a consideration to some Justices. Some have expressed that as a consideration. My point is you don't rule to please any crowd. You rule to get the law right under its terms.
Senator Tom Coburn (OK)
Senator
(R)
Senator Coburn. Thank you. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Senator Coburn.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Senator Whitehouse. Thank you, Mr. Chairman, and welcome again, Your Honor. I have to say, before I get into the questions that I have for you, that I, like many, many, many Americans, feel enormous pride that you are here today. And I was talking with some friends in Providence when I was home about your nomination, and I said, ``It actually gives me goose bumps to think about the path that has brought you here today and, more importantly, to think about''--because it is not about you--more important to think what that means about America, that path. And they said, ``No, no. You can't say `goose bumps.' You have to say `piel de gachina.' '' And so I promised them that I would, so I am keeping that promise right now. But I want to tell you that I think in the way you have handled yourself in this Committee so far, you have done nothing but to vindicate and reinforce the pride that so many people feel in you. And I hope that as this process continues-- I know these days are long, and it can be a bit of an order--I hope that you very much feel buoyed and sustained by that pride and that optimism and that confidence that people across this country feel for you and that so many people in this room feel for you. So I wanted to say that. I also wanted to fulfill another promise, which is the one I made to you, that in my opening statement I said I would ask you to make a simple pledge, and that simple pledge is that you will decide cases on the law and the facts before you; that you will respect the role of Congress as representatives of the American people; that you will not prejudge any case, but will listen to every party that comes before you; and that you will respect precedent and limit yourself to the issues that the Court must decide. May I ask you to make that pledge?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can. That's the pledge I would take if I was--that I took as a district court judge, as a circuit court judge, and if I am honored to be confirmed by this body, that I would take as a Supreme Court Justice, yes.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Thank you. Some of my colleagues have raised questions about your role at the Puerto Rican Legal Defense and Education Fund many years ago before you left that organization to become a Federal trial judge in 1992, I guess it was. I just want to clarify. That was clearly a part of your history and your package that came to the Senate at the time of those confirmations, when you were confirmed both in 1992 and 1997, so this is nothing new to the Senate. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's correct.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And in terms of the way that the Puerto Rican Legal Defense and Education Fund operated, you were a member of the board. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I was.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Did the attorneys for the Puerto Rican Legal Defense and Education Fund make it a practice to vet their legal filings with the board first? Did the board approve individual briefs and arguments that were made by attorneys for the organization?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, because most of us on the board didn't have civil rights experience. I had actually--when I was a prosecutor in private practice, that wasn't my specialty of law. Even if they tried to show it to me, I don't know that I could have made a legal judgment even if I tried. That was not our function.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And I think that is customary in charitable organizations for the board not to sign off specifically on briefs and other legal filings that the attorneys make. Certainly in the years I have spent on the boards of charitable organizations, it has never been something presented to me. So I appreciate that. In 1992 and in 1997, when the Senate was, again, fully aware of all that, was there, to your recollection, the objection made in those confirmations?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't believe any question was asked about my service on the Puerto Rican Legal Defense and Education Fund. The fund is an organization that has and has been considered in the mainstream of civil rights organizations like the NAACP and the Mexican American Legal Defense and Education Fund, promotes the civil rights of its community.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Let me turn to some more general questions, if I may, and one has to do with the role of the jury--not just in trials. Obviously, you are eminently familiar with the role of juries in trials. I think you will be the only member of the United States Supreme Court, if you are confirmed, to actually have had Federal trial judge experience, which I think is a valuable attribute. But I am not thinking so much about the role of the jury in the courtroom as I am about the role of the jury in the American system of government. When the Constitution was set up, as you know so well, the Founders made great efforts to disaggregate power, to create checks and balances, and the matrix of separated powers that they created has served us very, very well. In the course of that, or as a part of that, the Founders also revealed some very strongly felt concerns about the hazards of both unchecked power and of the vulnerability of the legislative and executive branches to either corruption or to being consumed and overwhelmed by passing passions. And I would love to hear your thoughts on the importance of the jury in that American system of Government, and if you could, with particular reference to the concerns of the Founders about the vulnerabilities of the elected branches.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Like you, I am--and perhaps because I was a State prosecutor and I have been a trial judge, and so I've had very extensive experience with jury trials in the American criminal law context. I have had less in the civil law context as a private practitioner, but much more as a district court judge. I can understand why our Founding Fathers believed in the system of juries. I have found in my experience with juries that virtually every juror I have ever dealt with, after having experienced the process, came away heartened, more deeply committed to the fundamental importance of their role as citizens in that process. Every juror I ever dealt with showed great attention to what was going on, took their responsibilities very seriously. I had a juror who was in the middle of deliberations, on her way to my courtroom--not on her way to my courtroom--on her way home from court on the previous day broke her leg, was in the hospital the entire night, came back the next morning on time, in a wheelchair, with a cast that went up to her hip. What a testament both to that woman and to the importance of jury service to our citizens. I was very active in ensuring that her service was recognized by our court. It has a central role. Its importance to remember is that it hasn't been fully incorporated against the States. Many States limit jury trials in different ways. And so the question of what cases require a jury trial and what don't is still somewhat within the discretion of States. But it is a very important part of a sense of protection for defendants accused in criminal cases, and one that I personally value from my experience with it.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And does the Founders' concern about the potential vulnerabilities or liabilities about the elected branch illuminate the importance of the jury system?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I--as I see the jury system, I don't know exactly--I don't actually--and I've read the Federalist Papers and I've read other historical accounts. The jury system was--I thought the basic premise of it was to ensure that a person subject to criminal liability would have a group of his or her peers pass judgment on whether that individual had violated the law or not. To the extent that the Constitution looked to the courts to determine whether a particular act was or was not constitutional, it seems to me that that was a different function than what the jury was intended to serve. The jury, as I understood it, was to ensure that a person's guilt or innocence was determined by a group of peers. To the extent that that has a limit on the elected branches, it's to ensure that someone is prosecuted under the law and that the law is applied to them in the way that the law is written and intended.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And where the jury requirement applies to civil trials, the argument would be the same. Correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Again, on the question of the American system of Government, how would you characterize the Founders' view of any exercises of unilateral or unchecked power by any of the three branches of Government in the overall scheme?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Constitution by its terms sets forth the powers and limits of each branch of Government, and so to the extent that are limits recognized in the Constitution, that is really what the Constitution intends. The Bill of Rights, the Amendments set forth there are often viewed as limits on Government action. And so it's a question always of looking at what the Constitution says and what kind of scope it is for a Government action at issue.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Would you feel, in light of all of the attention--very, very careful and thoroughly thought out attention--that the Constitution gives to establishing and enforcing a whole variety of different checks and balances among the different powers of Government, that a judge who was presented with an argument that a particular branch of Government should exercise or have the authority to exercise unilateral unchecked power in a particular area should approach that argument with a degree of heightened caution or attention?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The best framework that has been set out on this question of a unilateral act by one branch or another-- but usually the challenge is raised when the Executive is doing something, because the Executive executes the law, takes the action, typically. The best description of how to approach those questions was done by Justice Jackson in his concurring opinion in the Youngstown case. And that opinion laid out a framework that generally is applied to all questions of Executive action, which is that you have to look at the powers of each branch together. You have to start with what has Congress said, express or implicitly. And if it's authorized to do something, to let the President do something, then the President's acting at the height of his powers. If Congress has implicitly prohibited--expressly or implicitly prohibited something, then the President's acting at the lowest ebb of his powers. There is a zone of twilight, which is the zone in between, which is: Has Congress said something or not said something? In all of the situations, once you've looked at what Congress has done or not done, you then are directed to look at what the President's powers may be under the Constitution minus whatever powers Congress has in that area. So the whole exercise is really, in terms of Congress and the Executive, an exercise of the two working together. And, in fact, that's the basic structure of our system of Government. That's why Congress makes the laws. The President can veto them, but he can't make them. He can regulate if the Congress gives him the authority to do so, and within other delegated authorities or-- I shouldn't use the word ``delegated'' because it has a legal meaning. But the point is that that question is always looked at in light of what Congress has said on the issue and in light of Congress' power as specified in the Constitution.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Let me change to a more law enforcement-oriented topic. I appreciate, first of all, very much your service in District Attorney Morgenthau's office. It is an office that prosecutors around the country look at with great pride and sense of its long tradition and of the very great capability of the prosecutors who serve in it. It is a very proud office, and I am delighted that you served there, and I think it says a great deal about you that, coming out of law school and college with the stellar academic record that you had and an entire world of opportunities open to you, you chose that rather poorly paid office. And since you have met 89 of us, I doubt you remember all of our conversations, but when you and I had the chance to meet, we compared who had the worst office as a new prosecutor, and I think you won. [Laughter.] Senator Whitehouse. And so it was a very important moment for, at that point, a quite new lawyer to make a very significant statement about who you were and what your purpose was. And so I very much appreciate that you made that choice, and I think prosecutors like my colleagues Senator Klobuchar and many others around this country, our Chairman, Senator Leahy, made that choice over the years, and it is one that I think merits a salute. One of the things that prosecutors have to deal with all the time is search and seizure and warrants, and my question has to do with the warrant requirement under the Constitution. I see the Constitution as being changeless, timeless, and immutable. What changes is society, as you pointed out in your testimony earlier, and technology. And so new questions arise, and I would be interested in your reaction to the difference between the experience of society and the technology of society when the Founders set up the warrant requirement originally, and today. When the Founders set up the warrant requirement originally, when the sheriff or somebody went to seize property, to bring it in as evidence for a trial or to condemn it as contraband, that was sort of the end of it. If it was evidence, when it was done it was returned and went back; particularly papers were returned, and that was the end of it. Then came the Xerox machine, and now the Government could make copies of what they took, and it was returned, as always, just as the Founders had intended, but copies were sprinkled throughout Government files, very often ones that ended up in archives buildings in dusty boxes that would have taken enormous effort to locate. But, nevertheless, they remained available. And nowadays, with electronic databases and electronic search functions, matters that once would have been returned to the individual and that envelope of privacy that was opened by the warrant would have been closed again are now potentially eternally available to Government, eternally searchable, and it raises some very interesting privacy questions that we will have to face in this Congress and in this Senate as we begin to take on issues particularly of cyber security, cyber attack, cyber terrorism, and take advantage of what technology can bring to bear in the continued struggle against terrorist extremists. So I would be interested in your thoughts on how the Constitution, which is unchanged through all of that, what analysis you would go through to see whether the change from a quickly opening and closing privacy envelope to one that is now essentially open season forever, how would you go about analyzing that as a judge, given that the Constitution is a fixed document?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I think, as I understand your question, Senator, that there are two issues--if not more, but the two that I note as more starkly for me in your question is the one of the search and seizure and the Fourth Amendment as it applies to taking evidence from an individual and use it against him or her in a current proceeding.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Yes, which is a constant. That stayed the same.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is the structure. Not so long ago, the Supreme Court dealt with a technologically new situation, which was whether an individual had a right to expect a warrant to be gotten before law enforcement flew over his or--I think it was a ``his'' in that case--his home and took readings of the thermal energy emanating from his home, and then going in to see if the person was growing marijuana.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. The FLIR case.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Exactly. And in that case, the reason for that case is that apparently--I'm not an expert in marijuana growing, but apparently, when you're growing marijuana, there's certain heating lights that you need. At least that's what the case was describing. And it generates this enormous amount of heat that wouldn't generally come from a home unless you were doing something like this. And what the Court did there--in an opinion by Justice Scalia, I believe it was--is it looked at the embedded questions of privacy in the home that underlied the unreasonable search and seizure, and the Court there, as I mentioned, determined that acts taken in the privacy of one's home would commonly not be expected to be intruded upon unless the police secured a warrant. And to the extent that the law had generally recognized that if you worked actively to keep people out of your home--you locked your windows, you locked your doors, you didn't let people walk by and peek through, you didn't stand at your front door and show people what you were doing--that you were exhibiting your expectation of privacy. And to the extent that new technology had developed that you wouldn't expect to intrude on that privacy, then you were protected by the Warrant Clause, and the police had an obligation to go talk to a magistrate and explain to them what their evidence was and let the magistrate--I use ``the magistrate'' in that more global sense. It would be a judge, but you would let a judge decide whether there was probable cause to issue the warrant--reasonable suspicion, probable cause--probable cause to issue the warrant. That's how the courts addressed the unreasonable--or have addressed, the Supreme Court has, the unreasonable search and seizure, and balance the new technology with the expectations of privacy that are recognized in the Fourth Amendment. Yes, I thought a separate question which in my mind is different than the right to privacy with respect to personal information that could be otherwise available to the public as a byproduct of a criminal action or as a byproduct of your participation in some regulated activity of the Government. There are situations in which, if your industry is regulated, you are going to make disclosures to the Government, and then the question becomes how much and what circumstances can then Government make copies, put it in an electronic data base or use it in another situation. So much of that gets controlled by the issues you are saying Congress is thinking about, which is, What are people's rights of privacy in their personal information? Should we as Congress as a matter of policy regulate that use? The Court itself had been commanded by Congress to look at certain privacy information of individuals and guard it from public disclosure in the data bases you are talking about. So we have been told, ``Don't go using somebody's Social Security number and putting it in a data base.'' That is part of a public document, but we have been told, ``Don't do that.'' And there is a reason for that: because there is not only the issues of identity theft but other harms that come to people from that situation. So that broader question, as we many, is not one that one could talk about a philosophy about. As a judge, you have to look at the situation at issue, think about what Congress has said about that in the laws, and then consider what the Constitution may or may not say on that question, depending on the nature of the claim before the Court.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. Your Honor, I thank you. I wish you well.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you.
Senator Sheldon Whitehouse (RI)
Senator
(D)
Senator Whitehouse. And I congratulate you on your appearance before this Committee so far.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you, sir.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Senator Whitehouse, thank you. I appreciate the comments getting into the area of criminal law. Of course, Senator Whitehouse has served as both a U.S. Attorney and as an Attorney General and brings a great depth of knowledge, as do several on both the Republican and Democratic side, to this Committee. And I also appreciate you taking less than your time. I hope maybe you will be setting a standard as we go forth. [Laughter.] Chairman Leahy. We will take a 15-minute break. [Recess at 11:35 a.m. to 11:53 a.m.] Chairman Leahy. There has been an interest expressed by--I was going to say by all the Senators, but most Senators have left the hearing room. Do not think that does not mean that there is not going to be more questions, Judge, because there will be this round and another round and if it is a case of all the questions having been asked, but not everybody has asked all the questions, some will come back and ask them again. What we are going to do, we are going to have Senator Klobuchar and Senator Kaufman ask questions. We will then break for lunch. We will then have Senator Specter and Senator Franken ask questions. I am saying this for the purpose, also, of those who have to schedule and plan. We will take a break for lunch after these two Senators. We will then go into the traditional closed door session, which will be held in the Senate Judiciary Committee room. So, Senator Klobuchar, we seem to be heavy on prosecutors here. She is also a former prosecutor. I yield to you.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Thank you very much, Mr. Chairman. Good afternoon, Judge. Thank you, again, for all of your patience and your thoughtful answers. Really, everyone has been focusing on you sitting there. I have been focusing on how patient your mother has been through this whole thing, because I ran into her in the restroom just now and, I can tell you, she has a lot she would like to say. She has plenty of stories that she would like to share about you. I thought I might miss my questioning opportunity.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, don't give her the chance.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. But I was thinking she is much more patient than my mother has been, who has been waiting for this moment, for me to ask these questions, and leaving messages, like, ``How long do these guys have to go on? '' My favorite one, the recent one, was, ``I watched Senator Feinstein and she was brilliant. What are you going to do? '' So let us move on.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. We should introduce our mothers. Okay?
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Exactly. I have some quick questions here at the beginning just to follow-up on some of the issues raised by my colleagues. Senator Coburn was asking you about the Heller case and Second Amendment issues, and I personally agree with the Heller case. But I remember that yesterday that you said that in Maloney, your second circuit case, that you were bound by precedent in your circuit, but that you would keep an open mind if the Supreme Court takes up the question of whether the Second Amendment can be incorporated against the states. Is that right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, Senator. I take every case case-by- case and my mind is always open and I make no prejudgments as to conclusions.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. Then a follow-up on a question that Senator Whitehouse was asking you about the Puerto Rican Legal Defense Fund. You were on that board. One just minor follow-up. But isn't it true that the ABA, that their code of conduct, the American Bar Association code of conduct bars board members from engaging in litigation because of a lack of an actual lawyer-client relationship?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Then, finally, just one point. We have heard so much about your speech in which you used the phrase ``wise Latina,'' and I am not going to go over that again. But I did want to note for the record that you made a similar comment in another speech that you gave back in 1994, which you have provided not only in this proceeding, but you also provided it when you came before the Senate for confirmation to the circuit court in 1997 and 1998. No Senator at that time--do you remember them asking you about it or making any issue about it at the time?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. All right. Thank you. Now, we can move on to what I want to talk about, which is your work as a criminal prosecutor. Senator Whitehouse initially asked a few questions about that. You were quoted in the New York Times a while back about your time there and you said, ``The one thing I have found is that if you come into the criminal justice system on a prosecutorial or defense level thinking that you can change the ills of society, you are going to be sorely disappointed. This is not where those kinds of changes have to be made.'' Do you want to elaborate on that a little bit?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. By the time a criminal defendant ends up in court, they've been shaped by their lives. If you want to give people the best opportunity of success at life, it's a message I deliver frequently to my community, it has to be through early childhood forward. If you're waiting to do that once they're before a judge in court, your chances of success have diminished dramatically. And so one of my messages in many of my speeches to my community groups is pay attention to education. It's the value mom taught me, but her lesson was not lost on me when I became a prosecutor and it's a lesson that I continue to promote, because I so fervently believe it. The success of our communities depends on us improving the quality of our education of our children and parental participation in ensuring that that happens in our society.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. It also reminded me of that comment about some of the comments you have made about the limited roles, that a prosecutor has one role, and the limited role that a judge may have to respect that judicial role of not making the laws, but interpreting the laws. Would that be a correct summary?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is. In the statement I made to the newspaper article, I was focusing on a different part of that, but it is. As a prosecutor, my role was not to look at what I thought the punishment should have been, because that was set in law. Sentences are set by Congress within statutory ranges, and my role was to prosecute on behalf of the people of the State of New York. And that role is different than one that I would do if I were a defense attorney, whose charge is to do something else to ensure that a defendant is given a fair trial and that the government has proven its case beyond a reasonable doubt. But we cannot remedy the ills of society in a courtroom. We can only apply the law to the facts before us.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I think Justice Ginsberg made a similar comment in an article this weekend, in an interview she did, as she was talking about--this was her exact quote, ``The legislature can make the change, can facilitate the change, as laws like the Family Medical Leave Act do''--she was talking about family arrangements--``but it is not something a court can decree.'' ``A court can't tell the man,'' she said, `` `you've got to do more than carry out the garbage.' '' I thought that was another way of--you do not have to comment on that, but it was another way of making the same point. The other thing that I wanted to focus on was just that role as a prosecutor, some of the difficult decisions you have to make about charging cases, for instance. Sometimes you have to make a difficult decision to charge a family member maybe in a drunk driving case where someone kills their own child because they were drunk or you have to make a decision when the court of public opinion has already decided someone is guilty, but you realize you do not have enough evidence to charge the case. Do you want to talk about maybe a specific example of that in your own career as a prosecutor or what goes into your thinking on charging?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I was influenced so greatly by a television show in igniting the passion that I had as being a prosecutor, and it was Perry Mason. For the young people behind all of you, they may not even know who Perry Mason was. But Perry Mason was one of the first lawyers portrayed on television and his storyline is that in all of the cases he tried, except one, he proved his client innocent and got the actual murderer to confess. In one of the episodes, at the end of the episode, Perry Mason, with the character who played the prosecutor in the case, were meeting up after the case and Perry said to the prosecutor, ``It must cause you some pain having expended all that effort in your case to have the charges dismissed.'' And the prosecutor looked up and said, ``No. My job as a prosecutor is do justice and justice is served when a guilty man is convicted and when an innocent man is not.'' And I thought to myself that's quite amazing to be able to serve that role; to be given a job, as I was, by Mr. Morgenthal, a job I'm eternally grateful to him for, in which I could do what justice required in an individual case. And it was not without bounds, because I served a role for society and that role was to ensure that the public safety and public interests were fully represented. But prosecutors, in each individual case, at least in my experience particularly under the tutelage of Mr. Morgenthal, was we did what the law required within the bounds of understanding that our job was not to play to the home crowd, not to look for public approval, but to look at each case, in some respects, like a judge does, individually. And that meant, in some cases, bringing the tough charge, and I was actually known in my office for doing that often, but that's because I determined it was appropriate often. But periodically, I would look at the quality of evidence and say there's just not enough. I had one case with an individual who was charged with committing a larceny from a woman and his defense attorney came to me and said, ``I never ever do this, but this kid is innocent. Please look at his background. He's a kid with a disability. Talk to his teachers. Look at his life. Look at his record. Here it is,'' and he gave me the file. Everything he said was absolutely true. This was a kid with not a blemish in his life. And he said, ``Please look at this case more closely.'' And I went and talked to the victim and she--I had not spoken to her when the case was indicted. This was one of those cases that was transferred to me, and so it was my first time in talking to her, and I let her tell me the story and it turned out she had never seen who took her pocketbook. In that case, she saw a young man that the police had stopped in a subway station with a black jacket and she thought she had seen a black jacket and identified the young man as the one who had stolen her property. The young man, when he was stopped, didn't run away. He was just sitting there. Her property wasn't on him. And he had the background that he did. And I looked at that case and took it to my supervisor and said, ``I don't think we can prove this case.'' And my supervisor agreed and we dismissed the charges. And then there are others that I prosecuted, very close cases, where I thought a jury should decide if someone was guilty and I prosecuted those cases and, more often than not, got conviction. My point is that that is such a wonderful part of being a prosecutor. That TV character said something that motivated my choices in life and something that holds true. And that's not to say, by the way, and I firmly, firmly believe this, defense attorneys serve a noble role, as well. All participants in this process do, judges, juries, prosecutors and defense attorneys. We are all implementing the protections of the Constitution.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Thank you. That was very well said. I want to take that pragmatic experience that you had not just as a civil litigator, but also as a prosecutor. A lot has been said about whether judges' biases or their gender or their race should enter into decision making. I actually thought that Senator Schumer did a good job of asking you questions where, in fact, you might have been sympathetic to a particular victim or to a particular plaintiff, but you ruled against them. That actually gave me some answers to give to this baggage carrier that came up to me at the airport in Minneapolis. It was about a month ago, after you had just been announced, and he came up and he said, ``Are you going to vote for that woman? '' At first, I did not even know what he was talking about. I said, ``What? '' He said, ``Are you going to vote for that woman? '' I said, ``Well, I think so, but I want to ask her some questions.'' He said, ``Well, aren't you worried that her emotions get in front of the law? '' I thought if anyone had heard the cases, the TWA case, where you decided against--had to make a decision from some very sympathetic victims, of families of people who had been killed in a plane crash, and a host of other cases where you put the law in front of where your sympathies lie, I think that would have been a very good answer to him. But another piece of it, but it is a very different part of it, is the practical experiences that you have had, the pragmatic works that you have done. I just wanted to go through some of the cases that you have had, the criminal cases that you have handled as a judge and talk to you a little bit about how that pragmatic experience might be helpful on the courts; not leading you to always side with the prosecution, obviously, but helping you to maybe ferret through the facts, as you have been known to be someone that really focuses on the facts. One of them is the United States v. Falso case and this is a case where child pornography was found in a guy's home and on his computer. You ruled that although the police officers did not have probable cause for the search warrant, that the evidence obtained in the search, the child pornography and the computer, should still be considered under the good faith exception to the inclusionary rule, because the judge had not been knowingly misled. In other words, it was a mistake. Can you talk about that case and how perhaps having that kind of experience on the front line helps you to reach that decision, because there was someone, I believe, that dissented in that case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That case presented a very complicated question in second circuit law. There had been two cases addressing how much information a warrant has to contain and what kind in order for the police to search a defendant's home or--I shouldn't say a home--a computer to see if the computer contained images of child pornography. The two cases--I should say the two panels--I wasn't a member of either of those panels--had very extensive discussion about the implications of the cases because they involved the use of the Internet and how much information the police should or should not have before they looked to get a warrant to search someone's computer, because the computer does provide people with freedom of speech, at least with respect to accessing information and reading it and thinking about it. In the case before me, I was looking at it in the backdrop of the conflict that it appeared to contain in our case law and what our case law said was important for a police officer to share with a judge and examined the facts before my case, looking at the information that the police had before them and considering whether, in light of existing second circuit law, as it addressed this issue, had the police actually violated the Constitution--I hope I can continue.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. You can continue. That was not a comment from above. I have certain powers as Chairman, but not that much.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Please go on.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Whether they should get a warrant or not. And one member of the court said yes and they had violated the Constitution and I joined that part of the opinion because I determined, examining all of the facts of that case and the law, that that was the way the law--the result the law required. But then I looked at what the principles underlying the unreasonable search and seizures are without a warrant and looked at the question of what was the doctrine that underlay there, and what doctrine it underlays is that you don't want the police violating your constitutional rights without a good faith basis, without probable case. And that's why you have a judge make that determination. It's why you require them to go to a judge. And so what I had to look at was whether we should make the police responsible for what would have been otherwise a judge's error, not their error. They gave everything they had to the judge and they said to the judge, ``I don't know.'' Even if they thought they knew, that isn't what commands the warrant. It's the judge's review. So I was the judge in the middle. One judge joined one part of my opinion. The other judge joined the other part of the opinion. And so I held that the act violated the Constitution, but that the evidence could still be used because the officers had--there was, in law, a good faith exception to the error in the warrant.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I think you made a similar finding with different underlying facts in United States v. Santa, when that involved a clerical error, and then that was a case where the underlying arrest warrant--where someone had been arrested, they found cocaine, and you allowed that in on the basis that the underlying arrest warrant, even though it was false, there had not been a warrant out there, it had been removed, that that was a clerical error and they could still use the cocaine.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, in fact, it's a holding the Supreme Court--an issue the Supreme Court addressed just this term.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Exactly.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And came out--or I came out the way the Supreme Court did on that.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. The Herring case.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Yes. Very good. The piece of that case in the Supreme Court that is most interesting to me in terms of that issue we have been talking about, the practical knowledge and how that plays into decisions, is the Melendez-Diaz case, which you were not involved in. It was a U.S. Supreme Court case. But this is just from my own practical work as a prosecutor and it was a contested case with the Supreme Court. It did not divide ideologically. In fact, both Justice Breyer and Justice Roberts were in the dissent that Justice Kennedy wrote. It was a 5-4 decision. In that case, the issue was whether or not, with the confrontation clause, whether or not lab workers, crime lab workers should be called in to have to testify for drugs and what the tests showed within the drugs and things like that. I just wondered what your reaction was to that case, how you would have analyzed it. I agree with the dissent in that case. I think that this could really open up 90 years of precedent. I think it is unreasonable for what we should expect of the criminal justice system, and there has been some pretty strong language in the dissent of a fear that this will create some difficulty for prosecutors to follow through on their cases and get the evidence in.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's always difficult to deal with people's disappointments about cases, particularly when they have personal experiences and have their own sense of the impact of a case. I was a former prosecutor, it's difficult proving cases as it is, calling more witnesses adds some burdens to the process. But at the end, that case is a decided case and so it's holding now. It is holding and that's what guides the court in the future on similar issues, to the extent there can be some. As I said, I do recognize that there can be problems, as a former prosecutor, but that also can't compel a result. And all of those issues have to be looked at in the context of the court's evaluation of the case and the judge's view of what the law permits and doesn't permit.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. I will say there was an interesting story a few weeks ago about jokes that you have been tenacious about getting to the bottoms of facts when you have cases and there were actually some experts that criticized you for spending too much time trying to figure out the facts, which I thought was a pretty unique criticism in the halls of criticism. In fact, you were defended by a former clerk to Clarence Thomas who said that you are extraordinarily thorough and a judge would ordinarily be praised for writing thorough opinions. So when we were talking about Melendez-Diaz and some of those issues, it seems to me that when you have looked at cases involving criminal justice or really any issue, whether it is that Vermont Ferry case that you did or other ones, you really did delve into the facts. Do you want to talk a little bit about why that is important?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The facts are the basis for the legal decision. A judge deals with a particular factual setting and applying the law to those facts. To the extent that there's any criticism that I do that on the court of appeals, we're not fact-finders, but we have to ensure that we understand the facts of the case to know what legal principle we're applying it to. A judge's job, whether it's on the trial level, the circuit court or even the Supreme Court, is not to create hypothetical cases and answer the hypothetical case. It's to answer the case that exists. And so in my view, and I'm not suggesting any justice does this or doesn't do it, but I do think that my work as a state prosecutor and a trial judge sensitizes me to understanding and approaching cases starting from the facts and then applying the law to those facts as they exist. And, again, I don't want to suggest that not all judges do that, but because I--because of my background, perhaps like Justice Souter, who also has the reputation of carefully looking at the facts and applying the law to the facts, it's maybe that background that people are noticing and noticing where we picked up that habit.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Very good. In a report issued last week, The Transactional Record Access Clearinghouse, I did not know there was such a thing, found that you sent more convicts to prison and handed out longer sentences than your colleagues did when you were a district court judge. One statistic found that you handed out sentences of greater than 6 months to 48 percent of convicted criminals in white collar cases, while your colleagues gave out sentences of 6 months or more to just 36 percent. You were also twice as likely as your colleagues to send white collar criminals to 2 years or more in prison. I have found the white collar cases to be some of the most challenging cases that we had in our office when I was a prosecutor. They were challenging because there was oftentimes sympathy. Maybe this is dating myself, 10 years ago, there used to be more sympathy, but there was sympathy to people who were pilots. We had tax evasion cases with pilots or we had a judge that we prosecuted who had a half-day of his friends come and testify that he should not go to jail, including the former Miss America. So I have found those cases to be difficult. Could you talk a little bit about your view of sentencing, in general, and sentencing of white collar defendants, in particular?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It should be remembered that when I was a district court judge, the sentencing laws were different than they have become during my 12 years on the court of appeals. That--and it makes me sound ancient, but back in the days when I was a district court judge, the sentencing guidelines were focused on the amount of a fraud and didn't consider the number of victims or the consequences on the number of victims of a crime. Perhaps because of my prosecutorial background, perhaps because I considered the perspective of prosecutors who came before me, that the guidelines--and their arguments--that the guidelines didn't adequately consider the number of victims and that that should be a factor, because someone who commits 100,000 $1--not $1--$1,000 crimes may be as culpable as the person who does a one-time act of $100,000, and depending on the victims and the impact on the victims. Those are factors that one should consider. And so many of the white collar sentences that you are talking about were focused on looking at the guidelines and what the guideline were addressing and ensuring that I was considering, as the sentencing statutes require the court to do, at all of the circumstances of the crime. I suspect that may drive one of the reasons why I may have given higher white collar crime sentences than some of my colleagues; not to suggest they didn't listen to the argument, but they may have had a different perspective on it. I should tell you that my circuit endorsed that factor as a consideration under the guidelines, somewhat after I had started imposing sentences on this view, but they also agreed that this was a factor that courts could consider in fashioning a sentence. Crime is crime and to the extent that you're protecting the interests of society, you take your cues from the statute Congress gives and the sentencing range that Congress sets. And so to the extent that in all my cases I balanced the individual sentence with, as I was directed to, the interests that society sought to protect, then I applied that evenhandedly to all cases. So it's important to remember the guidelines were mandatory. And so I took my charge as a district court judge seriously at the time to only deviate in the very unusual case, which was permitted by the guidelines.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. What do you think about the change now that they are guidelines, suggested guidelines, and not mandatory?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As you know, there's been a great number of cases in the Supreme Court, the Booker/Fanfan line of case. The Booker/Fanfan case determined they were guidelines. My own personal experience as an appellate judge is that because the Supreme Court has told the district courts to give serious consideration to the guidelines, there's been a little bit--not a little bit--there's been discretion given to district courts, but they are basically still staying within the guidelines and I think that's because the guidelines prove useful as a starting point to consider what an appropriate sentence may be.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Just one last question, Mr. Chairman. All these guys have been asking about your baseball case and they have been talking about umpires and judges as umpires. Did you have a chance to watch the all-star game last night? Because most of America did not watch the replay of your hearing, they might have been watching it.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I haven't seen television for a very long time. But I will admit that I turned it on for a little while last night.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Because I will say--and maybe you did not turn it on on this moment, but your Yankee, Derek Jeter, tied it up, but you must know that he scored only because there was a hit by Joe Mauer of the Minnesota Twins. I just want to point that out. All right. Thank you very much, Judge.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's what teamwork helps you with.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. I am resisting any Red Sox comment.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I should beg you all not to hold that against me.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. I am not going to use that against you. I did see a photograph of the president throwing out the ball. I know the photographer well, and he did a very good shot of two pictures. Senator Kaufman is probably as knowledgeable as anybody on this Committee, having run it for years before becoming a Senator. I have said before, Judge, that Senators are merely constitutional requirements or impediments to the staff. We know who really runs the place. Senator Kaufman, it is over to you, sir.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. And I should make one announcement. You have been hearing some banging going on here. Apparently the air conditioning went out which will probably come as welcome news to some of the press who are freezing in the sky boxes up here. But it is not welcome news here with the crowd going on and they are working on it, but we are going to keep going as long as we can. Senator Kaufman?
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Thank you, Mr. Chairman. One of the toughest assignments--I have been here long enough to know the toughest assignment is to stand between the audience and lunch, so I am going to try to gear up under that. Good afternoon, Judge.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Good afternoon, Senator. It is good talking to you again.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. It is good to see you. And I want to kind of take a different track. I think Senator Whitehouse and Senator Klobuchar talked a lot about your time as a prosecutor. I would like to move on to kind of your time as a commercial litigator. You were a prosecutor for 5 years, then you decided to go into commercial practice. What were the thoughts behind you deciding when you left the DA's office to go into commercial practice?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, actually it is a continuation of what I explained to Senator Klobuchar. I had in the DA's office realized that in the criminal law system, we could not affect changes of opportunity for people. We were dealing with a discreet issue and applying the law to the situation at hand. But if there was going to be an increase of opportunity for all people, that that had to involve an increase in economic opportunity and in economic development for different communities. So that in combination with my desire to broaden my own personal understanding of as many aspects of law as I could, I decided that I should change my focus and concentrate on commercial matters rather than criminal matters. It also guided much of the pro bono work I did thereafter which also involved questions of finances and economic opportunities. And so I served on the New York State Mortgage Board and the New York State Mortgage Office was involved in giving individuals affordable housing or loans for affordable housing. I was a board member of the New York City Campaign Finance Board. Those were activities that motivated in large measure because of my growing belief that economic opportunities for people were the way to address many of the growth needs of communities.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Can you tell us a little bit about your commercial practice? What actually were you dealing with as a litigator?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It was a wonderful practice because unlike some of my law school friends, I very much wanted to go into a small law firm where I could have hands on practice. Having been a prosecutor and having made all of the decisions, individual decisions I made, I thought to myself as I was leaving the DA's office, I do not think I can go to those firms where I would be the fifth guy on the totem pole, that I wanted to have more hands on experience. So I went to a smaller firm where I actually until I became a partner tended to work directly with the partner and would often counsel businesses. I did a wide variety of commercial issues. I was involved in grain commodity trading, people buying home grown grains of all kinds, you can name them all, including orange peels as feed for animals, and the contracts that they were involved in in doing those trades. Our firm represented a very impressive list of client, including Ferrari the car manufacturer. I did a great deal of their work as it related to their dealer relationships and to their customer relationships. So I involved myself in those commercial transactions which were different focus, different emphasis. I also represented--not me, but the firm, but I counseled the client on many of its dealer relations issue of Pirelli Tire Corporation. These are names I suspect many people know.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Yes.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And from the fashion designer, and I think there are many people who know how famous that fashion house design is, had trademark questions. I participated with the partner who founded that practice within the law firm and she had a very untimely death. Actually she came from her home ill to vote on my partnership at the firm and I became a partner and a couple of months later, she passed away. But she had worked with me and introduced me to the intellectual property area of law. I worked on real estate matters, I worked on contract matters of all kinds, licensing agreements, financing agreements, banking questions. There was such a wide berth of issues that I dealt with.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. And how did that practice help you on the District Court and then on the Circuit Court of Appeals?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Actually, one of the lessons I learned from my commercial practice, I learned in the context first of my grain commodity trading, but in the work as it related to all commercial disputes, one main lesson. In business, the predictability of law may be the most necessary in the sense that people organize their business relationships by how they understand the court's interpret their contracts. I remember being involved in any number of litigations where at the end of the litigation as part of a settlement, I would draft up a settlement agreement between the parties. Quite often it involved creating an ongoing new business relationship or a temporary continuation of a business relationship until they could wind down. I would draft up the agreement like a litigator, like the judge I try to be. Say it in simple works. I would give it to my corporate partners, and I should not say it this way. I would get back stuff that sometimes I would look at and say, what does this gobbly goop mean? They would laugh at me and say, it has meaning. This is how the courts have interpreted it. It is very important to the relationship of the parties that they know what the expectations are in law about their relationship. Then I understood why it was important to phrase things in certain ways. It made me very respectful about the importance of predictability in terms of court interpretation of business terms because that was very, very critical to organizing business relationships in our country.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. The other basic job as a District Court judge is to kind of avoid trial, kind of get people settled before they get to trial. How did your commercial experience help you deal with that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is interesting because I remember one case, and I cannot give you details because I would be breaching confidentiality. But I remember a client coming in to me with a fairly substantial litigation and I looked at the client and I said, ``I evaluated the case.'' I said, ``There are some novel theories here. I really think you can win, but there is a serious question about the cost to get there because these are all the things that we would have to do to get there and it is going to cost you,'' it was millions of dollars that I estimated. The client went to another lawyer who gave them a different evaluation. They went with that other lawyer. My firm lost all that income. But the client came back afterwards. The figure I put on the litigation was exactly what they spent and more. Settlements are generally in the business world economic decisions, balancing both the cost of litigation and the right of the issue. But business has a different function than courts. Business function is to do business, to do their work, to sell products,--relationships and litigation are different. As a judge when I was a District Court judge, most of my focus was on doing what I used to do as a lawyer, to talk to parties not about the merits of their case, but about the consideration of thinking about creative and new ways to approach a legal dispute so they could avoid the cost of litigation. As a Circuit Court judge, I am very cognizant of the cost of litigation and look at what parties are doing in the courts below, bearing that in mind.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. You talked about your experience as Circuit Court judge. How did your being a District Court judge help you when you became a Circuit Court judge?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, no question that it made me more sensitive to the importance of facts and looking at the facts the court has found and the facts that the parties are arguing and looking at the record to understand what went on. I often point to this example. When I sit on panels, and our court is blessed by having judges with a wide variety of circumstances. I know for me because I was a trial judge, I would read all the briefs in a case, I would read the District Court decision. If parties were arguing something and the District Court didn't address it, my first question to my law clerks were, go back to the record and tell me why not. Most judges address arguments that people are raising and I would get to oral argument and if I was the only judge with a trial experience, I would look at the parties and say, did you argue this before the District Court? I could see some of the antennas going up for those colleagues who hadn't had that experience. They said, I never even thought of that. Look in fact if that was the case. There are all sorts of doctrines that do not permit parties to argue new things on appeal. And so that is how the experience comes in, both the sensitivity to facts and the sensitivity to ensure that you're applying law to those facts.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. I know you have this commercial experience because as I said in my opening statement, I am concerned about business cases. I think they are really important and I am also concerned that the current courts, being in court too often, seems to disregard law and congressional policy choices when it comes to business cases. I think in light of economic crisis, Congress probably, not probably, will definitely pass a financial regulatory reform package. I would just like to make sure that the system is not undermined by the court because they have a different view of what government regulation's all about. Do you believe that Congress has the constitutional authority to regulate financial markets?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You have just raised the very first question that will come up when Congress passes an Act. I can assure you, knowing every time that Congress passes an Act, there is a challenge by somebody. As soon as it is applied to someone in a way that they do not like, they are going to come into court. So I cannot answer that question.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. I am sympathetic to that and I really should have phrased it--just in general. Not with regard to any case, anything at all about Congress' constitutional authority to regulate financial markets.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, I cannot answer that question because it invites an answer to the potential challenge. What I can say to you is that Congress has certain constitutional powers. One of them is to pass laws affecting interstate commerce. So the question will be the nature of whatever statute Congress passes, what facts it relies upon and the remedy that it institutes. So the question would depend on the nature of the statute and what it is doing.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. But Congress does basically have the ability to regulate markets.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, it has the ability to--the constitutional terms are to make laws that involve commerce between the states. Those are the words and generally that has been interpreted to mean pass laws that affect commercial interstate transaction.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. To get to a more broader question about laws enacted by Congress, what should a judge's role be in viewing the wisdom of the statute, in interpreting it? When Congress passes a law, what is needed to whether the judge thinks it is a good law or bad law, the wisdom in passing it. What role does that play in the law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am trying to think if there is any situation in which a judge would have occasion to judge in that way. Policymaking, making of laws is up to Congress. A judge's personal views as to whether that policy choice is good or bad has no role in evaluating Congress' choice. The question for us is always a different one, which is what has Congress done? Is it constitutional in the manner in which it has done it. But policy choices are Congress' choices. In all areas, deference has to be given to that choice.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. How about regulation adopted by regulatory agencies?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Deference has been given in that area by the courts as well. Generally one looks at what Congress has said about that question because executive agencies have to apply and talk about regulations in light of what Congress has commanded. But those are also entitled to deference in different factual situations.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. We've been talking for a few minutes about securities law. What characterizes the securities law docket in the southern district of New York in the Second Circuit?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Everything. We are the home of New York City. Our jurisdiction is, and I am sure that another state is going to complain, but we are the business capital of the world. That is how it has been described by others. So we deal with every variant of securities law as one could imagine, from investment questions to misleading statements to investors to whatever Congress has regulated, our circuit will have a case on it. Or I should say it usually starts with the District Courts and it will perk up to the Circuit Court. But if you have a securities law, we will likely eventually hear the argument.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. And this will be valuable if you are confirmed.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I presume so because it has been a part of my work both as a District Court and a Circuit Court judge.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. You had a case with a suit against the New York Stock Exchange where the plaintiff sued the New York Stock Exchange for failure to effectively regulate the market. You ruled to give the New York Stock Exchange immunity from the suit even though you noted that the alleged misconduct appeared egregious. To reach that sort of decision, how do you reconcile the rationale for immunity with the fact that it deprives the plaintiffs of a remedy in situations where they have been wronged? As you said, egregiously wronged.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is somewhat important to recognize the limited role that courts serve and the issue of remedy also is one where one has to talk about remedy against whom and for what. In the ways that these individuals were injured, they were injured by third parties who had done allegedly illegal acts against them. The court's ruling did not affect their ability to take action against those individuals and clearly that is always difficult in some situations when the individual has been arrested, et cetera. But they are still remedies that law provides in terms of whatever assets those individuals have, whatever criminal actions the government may take, often funds are created to reimburse victims. The question here was whether an agency that in case law was seen to have a quasi governmental function, whether you could sue that agency for conduct that--for not regulating the other individuals adequately in helping to prevent the activity. But regulation comes in different forms by the quasi governmental agencies and what they can do depends on the exercise of discretion under the laws as they exist at the time. So the immunity doctrine wasn't looking at the issue of how to recompense the individuals, it was looking at the quasi functions of government. So there is a different perspective that was given to the judges in that case.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. In another securities case that interests me, Press v. Quake & Riley, in that case you and your fellow panel members deferred to the SEC's interpretation of its own regulation even though you seemed somewhat skeptical of the interpretation. Tell us about how you came to the conclusion you did in that case.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, there is a doctrine of Chevron deference and it goes to the issue of who makes the decisions and that goes to policy questions. To the extent that an agency interpretation is not inconsistent with congressional commands, express commercial commands, a judge cannot substitute their own judgment of what policies should be or regulations should be, but is commended to give deference. There are obviously in every situation a set of exceptions to when you do not, but you have to then apply a consideration of each of those exceptions in the particular circumstance before you. There have been other situations in which I have ruled and said no, the agency is not interpreting the statute in accordance with what the panel viewed was Congress' intent. Yesterday I believe one of the other Senators asked me about the Riverkeeper case.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Yes.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Supreme Court came to a different view of what the words Congress used meant. But the point is that the role of course is not to substitute their own judgments. It is to apply the principles of law in accordance with the acts that agencies are doing.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. And one more securities question. In recent years it seems like regulators were often too lax when it came to ferreting out securities fraud. What role do the private rights of action, that is cases brought by investors rather than government have in enforcing our securities laws?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is a right Congress has given presumably because Congress has made a policy choice that it is a way to ensure that individual's injuries are remedied. That is a part of many of our securities laws and our anti- trust laws. Government doesn't have unlimited resources to pursue all individual injuries. And so in some situations, Congress makes a choice to grant a private cause of action and in some it doesn't. That is a legislative choice.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Turning to the anti-trust law, what was your experience in the anti-trust law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As a----
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Both in practice and a judge, both of them.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am trying to think--I do not remember having direct experience in anti-trust law when I was in private practice. I do not think I did. So I had very little. I am trying to think of any of my cases on the District Court and major league baseball strike was one of them. It is the one that I can think of. I had anti-trust cases there as well. Often the cases settled actually, and so managing those cases was the prime function I had as a District Court judge. If you will give me a chance to look at my District Court decisions again to see if--and what other cases in the anti- trust area I may have ruled upon in District Court, I can get back to you, Senator, either at the next round or in a written question. I just do not---- On the Circuit Court it is different. I have participated directly in writing opinions and joining panels on opinions. So I've had at least two if not three or four or five of those cases.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Yesterday Senator Kohl asked about the Leegin case which is striking and it overturned 96 years of precedent that effectively legalized private agreements to prevent discount retailing. You said that both the majority and the--case had reason to question the economic theory underlining the original precedent. I do not want you to comment on Leegin in particular, but what is the role of the court in using economic theory to interpret acts of Congress?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, you do not use economic theory to determine the constitutionality of congressional action. That is a different question I think than the one that Leegin addressed. What Leegin addressed was how the court would apply congressional act, the anti-trust laws to a factual question before it. That's a different issue because that doesn't do with questioning the economic choices of Congress. That goes to whether or not in reviewing the action of a particular defendant what view the court is going to apply to that activity. In the Leegin case, the court's decision was look, we have prior case law that says that this type of activity is always anti-competitive. The court in reconsidering that issue in the Leegin case said well, there has been enough presented in the courts below to show that maybe it is not in some activity as anti-competitive. So we are not going to subject it to an absolute bar, we are going to subject it to a review under rule of reason. That is why I said it is not a question of questioning Congress' economic choices or the economic theories that underlay its decisions in a legislation. They weren't striking down the anti-trust laws. What the court was trying to do was figure out how it would apply that law to a particular set of facts before it.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. In Illinois Brick, a Supreme Court case dealing with anti-trust law, one of the classic cases, Justice White wrote, ``You can say whether to overturn precedent, we must bear in mind the considerations of Stare Decisis weigh heavily in the area of statutory construction, where Congress is free to change this court's interpretation of its legislation.'' Do you agree with Justice White?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I think that that--as you may know, the doctrine of Stare Decisis is not dependent on one factor.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The court considers a variety of different factors, including the administrative workability of a law, the reliance factor that society has put into that rule, that precedent, the cost to change it, whether the underlying doctrines in related areas, the underlying framework of related areas would lead a court to question whether the prior precedent really has a framework that's consistent with an understanding in this area that has been developed in other cases. And finally, has there been a change in society that shows that the factual findings upon which the older case was premised may be wrong. There is always the question as part of that analysis and other factors the courts may think about as to whether the older rule has been affirmed by the court and how often, over what period of time. To the extent that Justice White is talking about a factor that the court should put into that mix, the court has recognized in its Stare Decisis jurisprudence that all of the factors weigh into the decision. You think about why and under what circumstances you should alter the course of the court's interpretation as set forth in prior precedent.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. I am concerned because recently there has been erosion in anti-trust, both in the courts and the enforcement. It has made it much easier for financial institutions to become so massive, they are in effect too big to fail. Should a court sitting on anti-trust consider the systemic risk to the marketplace as injected by a financial institution being too big to fail?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, the purposes of the anti-trust theory is premised on ensuring competition in the marketplace. The question, like the one you pose, is one that would come to the court in a particular context and a challenge to some approach the court has used in this area. I obviously cannot say absolutely yes in a hypothetical, but obviously the court is always looking at what activity is claimed to be illegal under the anti-trust laws and what effect is has on anti-competitive behavior. The question frequently in anti-trust is is a particular area subject to per se barring or is it subject to the rule of reason, and the two have different approaches to the question.
Senator Ted Kaufman (DE)
Senator
(D)
Senator Kaufman. Thank you, Judge. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much, Senator Kaufman. I mentioned before, it is almost 1. We will take a break until 2. At 2, we will recognize first Senator Specter and then Senator Franken. When their questions are finished, we will go into the traditional closed door session which will be held not in this room, but in the Senate Judiciary Committee room. Following that, we will come back in here and if there are Senators that have further questions, they will be recognized not to exceed 20 minutes each. I would hope that if the question has already been asked and answered, they may want to resist the temptation to do it again, but they have that right to take the full 20 minutes if they do. I realize a lot of the questions have been asked, but not everybody has asked the same question and so they may want to. But they have that right. That's what we will do. We will stand recessed until then. [Whereupon, at 1 p.m., the meeting recessed for lunch.] After Recess [2:03 p.m.] Chairman Leahy. Judge, what did you do with your mother? [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. She needed a short break, but it wasn't because of Senators Specter or Franken.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Like Amy Klobuchar, I had a nice chat with her this morning, and she was talking about when she first became a nurse and compared notes with my wife, and they both agreed that that is when nurses truly had to be nurses. Now they are nurses-plus, with the advances in medicine. I just discussed this again with Senator Sessions. We will go first to Senator Specter, then to Senator Franken, and then we will recess and go into the other room for the closed session. Senator Specter, of course, is a former Chairman of this Committee, one of the most senior Members of the Senate, and one of the most experienced. Senator Specter.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Thank you, Mr. Chairman. Welcome back, Judge Sotomayor. You have held up very well. Of all of the proceedings in the Senate, this is the most exacting on the witness. Years ago, as you know, in the case of Ashcraft v. Tennessee, they said it was unconstitutional to subject a suspect to relay grilling, but that doesn't apply to nominees. And your family has been here. My wife, Joan Specter, who has been a soldier in her own right, says it is a lot harder to listen to me than it is to make a speech herself. And you are engaged. I think beyond doing very well on stamina, you have shown intellect and humor and charm and pride and also modesty. So it has been a very good hearing. Notwithstanding all of those qualities, the Constitution says we have to decide whether to consent, and that requires the hearing process and the questions. Before going into a long list of issues which I have on the agenda--separation of power and warrantless wiretaps and secret CIA programs and voting rights and the Americans with Disabilities Act and a woman's right to choose and the Environmental Protection Agency and the Clean Water Act and television and the Second Amendment--I would like to make an observation or two. There has been a lot of talk about a wise Latina woman, and I think that this proceeding has tended to make a mountain out of a molehill. We have had a consistent line of people who are nominees who make references to their own backgrounds. We all have our perspective. Justice O'Connor talked about her life experience. Justice Alito talked about his family suffering from ethnic slurs. Justice Thomas from Pin Point, Georgia, emphasized, talked about putting himself in the shoes of other people. And Justice Scalia talked about being in a racial minority. The expectation would be that a woman would want to say something to assert her competency in a country which denied women the right to vote for decades, when the glass ceiling has limited people, where there is still disparagement of people on ethnic background. Just this month in a suburb of Philadelphia, Hispanic children were denied access to a pool for whites only, as were African American children, so I can see how someone would take pride in being a Latina woman and assert herself. A lot has been made of the issue of empathy, but that characteristic is not exactly out of place in judicial determinations. We have come a long way on the expansion of constitutional rights. Oliver Wendell Holmes' famous statement that the life of the law is experience, not logic; Justice Cardozo in Palko v. Connecticut talked about changing values; and the Warren Court changed the Constitution practically every day, which I saw, being at the district attorney's office--the changes in search and seizure, confessions, Miranda, right to counsel. Who could have thought that it would take until 1963 to have the right to counsel in Gideon v. Wainwright? We have heard a lot of talk about the nomination proceeding of Judge Bork, and they have tried to make ``Bork'' into a verb, somebody being Bork'd. Well, anybody who looks at that record will see that it is very, very different. We had a situation where Judge Bork was an advocate of original intent from his days writing a law review article in the Indiana Law Review. And how can you have original intent when the 18th Amendment was written by a Senate on equal protection with the Senate galleries which were segregated, or where you have Judge Bork who believed that equal protection applied only to race and ethnicity, didn't even apply to women? But it was a very, very thorough hearing. I spent, beyond the hearing, days in three long sessions, 5 hours with Judge Bork, so it was his own approach to the law which resulted there. But you had an evolution of constitutional law which I think puts empathy in an Okay status, in an Okay category. Now on to the issues. I begin with an area of cases which the Court has decided not to decide, and those cases can be even more important than many of the cases which the Court decides. The docket of the Court at the present time is very different from what it was a century ago. In 1886, the docket had 1,396 cases, decided 451. A hundred years later, there were only 161 signed opinions in 1985; in 2007, only 67 signed opinions. During his confirmation hearings, Chief Justice Roberts said the Court ``could contribute more to the clarity and uniformity of the law by taking more cases.'' Judge Sotomayor, do you agree with that statement by Chief Justice Roberts?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I know, Senator Specter, that there is questions by many people, including Senators and yourself, of Justice Roberts and other nominees about this issue. Can the Court take on more? To the extent that there is concern about it, not that public opinion should drive the Justices to take more cases just to take them, but I think what Justice Roberts was saying is the Court needs to think about its processes to ensure that it's fulfilling its----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Judge Sotomayor, how about more cases?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, perhaps I need to explain to you that I don't like making statements about what I think the Court can do until I've experienced the process.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Then let me move on to another question. One case that the Court did not take involved the Terrorist Surveillance Program, which I think, arguably, posed the greatest conflict between congressional powers under Article I in enacting the Foreign Intelligence Surveillance Act, which provided for the exclusive way to get wiretaps. The President disregarded that in a secret program called the Terrorist Surveillance Program, didn't even tell the Chairman of the Judiciary Committee, which is the required practice or accepted practice; didn't tell the Intelligence Committees where the law mandates that they be told about such programs. It was only disclosed by the New York Times. Those practices confront us to this day with reports about many other secret cases not disclosed. The Federal District Court in Detroit found the Terrorist Surveillance Program unconstitutional. The Sixth Circuit in a 2-1 opinion said there was no standing. The dissent I think pretty conclusively had the much better of it on asserting standing. The Supreme Court of the United States denied certiorari, didn't even take up the case to the extent of deciding whether it shouldn't take it because of lack of standing. I wrote you a letter about this, wrote a series of letters, and gave you advance notice that I would ask you about this case. I am not asking you how you would decide the case, but wouldn't you agree that the Supreme Court should have taken that kind of a major conflict on separation of powers?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I know it must be very frustrating to you to----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. It sure is. I was the Chairman who wasn't notified.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. I am sure----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. And he was the Ranking Member who wasn't notified.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can understand not only Congress' or your personal frustration, and sometimes of citizens, when there are important issues that they would like the Court to consider. The question becomes what do I do if you give me the honor to serve on the Court. If I say something today, is that going to make a statement about how I am going to prejudge someone else's----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. I am not asking you to prejudge. I would like to know your standards for taking the case. If you have that kind of a monumental, historic conflict, and the Court is supposed to decide conflicts between the executive and the legislative branches, how can it possibly be justified not to take that case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There are often, from what I understand-- and that's from my review of Supreme Court actions and cases of situations in which they have or have not taken cases, and I've read some of their reasoning as to this. I know that with some important issues they want to make sure that there isn't a procedural bar to the case of some type that would take away from whether they're, in fact, doing what they would want to do, which is to----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Well, was there a procedural bar? You had weeks to mull that over because I gave you notice.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I'm sorry. I did mull this over. My problem is that without looking at a particular issue and considering the cert. brief style, the discussion of potential colleagues as to the reasons why a particular issue should or should not be considered, the question about----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Well, I can tell you are not going to answer. Let me move on. On a woman's right to choose, Circuit Judge Luttig in the case of Richmond Medical Center said that v. Planned Parenthood v. Casey was ``super-stare decisis.'' Do you agree with Judge Luttig?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't use the word ``super.'' I don't know how to take that word. All precedent of the Court is entitled to the respect of the doctrine of stare decisis.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Do you think that Roe v. Wade has added weight on stare decisis to protect a woman's right to choose by virtue of Planned Parenthood v. Casey, as Judge Luttig said?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is one of the factors that I believe courts have used to consider the issue of whether or not a new direction should be taken in the law. There is a variety of different factors the Court uses, not just one.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. But that is one which would give it extra weight. How about the fact that the Supreme Court of the United States has had 38 cases after Roe v. Wade where it could have reversed Roe v. Wade? Would that add weight to the impact of Roe v. Wade on stare decisis to guarantee a woman's right to choose?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The history of a particular holding of the Court and how the Court has dealt with it in subsequent cases would be among one of the factors as many that a Court would likely consider. Each situation, however, is considered in a variety of different viewpoints and arguments but, most importantly, factors that the Court applies to this question of should precedent be altered in a way.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Well, wouldn't 38 cases lend a little extra support to the impact of Roe and Casey where the Court had the issue before it, could have overruled it?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In Casey itself----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Just a little impact?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Casey itself applied--or an opinion authored by Justice Souter talked about the factors that a Court thinks about in whether to change precedent, and among them were issues of whether or not or how much reliance society has placed in the prior precedent; what are the costs that would be occasioned by changing it; was the rule workable or not; have either factual or doctrinal basis of the prior precedent altered, either from developments in related areas of law or not, to counsel a re-examination of a question, and----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. I am going to move on--go ahead.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And the Court has considered in other cases the number of times the issue has arisen and what actions the Court has or not taken with respect to that. Roe is--Casey did reaffirm the core holding of Roe, and so my understanding would be that the issue would be addressed in light of Casey on the stare decisis----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Do I hear you saying there would be at least a little bit of--let me move on. Let me move on to another separation of powers argument, and, that is, between Congress and the Court. In 1997, in the case called Boerne, suddenly the Supreme Court of the United States found a new test called ``congruence and proportionality.'' Up to that time, Judge Harlan's judgment on a rational basis for what Congress would decide would be sufficient. And here for the benefit of our television audience, we are talking about a record that the Congress maintains. Take the Americans with Disabilities Act, for example, where there was a task force of field hearings in every State attended by more than 30,000 people, including thousands who had experienced discrimination with roughly 300 examples of discrimination by State governments. Notwithstanding that vast record, the Supreme Court of the United States in Alabama v. Garrett found Title I of the Americans with Disabilities Act unconstitutional. The other title, Title II, of the Americans with Disabilities Act in Tennessee v. Lane, the Court found it constitutional on the same record. Justice Scalia in dissent said that it was a ``flabby test,'' that it was an ``invitation to judicial arbitrariness and policy-driven decision making.'' In a second round, if we have time, I will ask you--to give you some advance notice, although I wrote you about these cases--if you can find a distinction on the Supreme Court's determination. But my question to you is: Looking at this brand-new standard of proportionality and congruence, for whatever those words mean--and if we have time in the second round, I will ask you to define them, but there are other questions I want to come to. Do you agree with Justice Scalia that it is a flabby test and that, with having such a vague standard, the Court can do anything it wants and really engages in policy-driven decision making? Which means the Court, in effect, legislates.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, the question of whether I agree with a view of a particular Justice or not is not something that I can say in terms of the next case. In the next case that the Court will look at and a challenge to a particular congressional statute----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Well, not the next case. This case. You have these two cases. They have the same factual record. And the Supreme Court, in effect, legislates, tells us what is right and what is wrong on this standard that nobody can understand.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I understand the congruence and proportionality test, it is the Supreme Court's holding on that test, as I understand it, that there is an obligation on the Court to ensure that Congress is working--working--is legislating within its legislative powers. The issue is not--and these are Section 5 cases, essentially, which are the clause of the Constitution under the 14th Amendment that permits Congress to legislate issues involving violations of the 14th amendment. The Court in those cases has not said that Congress can't legislate. What it has looked at is the form of remedy Congress can order and what it----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. But it doesn't tell us how to--let me move on to a Voting Rights Act case, and just pose the case, and I will ask you about it in the next round. When Chief Justice Roberts testified at his confirmation hearings, he was very deferential to the Congress--not so, I might add, when he heard arguments in the voting rights case, but when he appeared here 3 years ago. He said this, and it is worth reading: ``I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact finding, development of a record, and also the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record. . . . As a judge . . . you may have the beginning to transgress into the area of making a law is when you are in a position of re-evaluating legislative findings because that doesn't look like a judicial function.'' Now, that is about as deferential as you can be when you are nominee. But when Chief Justice Roberts presided over the voting rights case, he sound very, very different. My question to you is: Do you agree with what Chief Justice Roberts said when he was just Judge Roberts that it is an area of making laws to transgress into what Congress has done by way of finding the facts?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I would find it difficult to agree with someone else's words. I can tell you how much I understand the deference that Congress is owed, and I can point you at least to two cases--and there are many, many more--that shows how much I value the fact that we are courts that must give deference to Congress in the fields that are within its constitutional power.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Well, do you agree with Chief Justice Roberts--I sent you that quotation a long time ago and told you I would ask you about it. Do you agree with him or not?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I agree to the extent that one's talking about the deference that Congress is owed. I can't speak for what he intended to say by that. I can speak to what I----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Well, not what he intended to say. What he did say.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I heard what he said, sir, but I don't know what he intended in that description. I do know what I can say, which is that I do understand the importance to Congress' factual findings, that my cases and my approach in my cases reflect that. I've had any number of cases where the question was deference to congressional findings, and I have upheld statutes because of that deference.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Is there anything the Senate or Congress can do if a nominee says one thing seated at that table and does something exactly the opposite once they walk across the street?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That, in fact, is one of the beauties of our constitutional system, which is we do have a separation of----
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Beauty is in the eyes of the beholder. It is only Constitution Avenue there. [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, the only advantage you have in my case is that I have a 17-year record that I think demonstrates how I approach the law and the deference with which--or the deference I give to the other branches of Government.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. I think your record is exemplary, Judge Sotomayor. Exemplary. I am not commenting about your answers, but your record is exemplary. [Laughter.] Senator Specter. And you will be judged more on your record than on your answers, Judge Sotomayor. For those who are uninitiated, your preparation appropriately is very careful. They call them ``murder boards'' at the White House. I don't know what you did and I am not asking. We have had a lot of commentary. And you studied the questions, and you have studied the record, and your qualification as a witness is terrific in accordance with the precedents there. You are following the precedents there very closely. Let me move to television and the courts, and it is a question that many of us are interested in. I always ask it. I have introduced legislation twice, come out of Committee twice, to require the Court to televise. The Court does not have to listen to Congress. The Court can say separation of powers precludes our saying anything. But the Congress does have administrative procedural jurisdiction. We decide the Court convenes the first Monday in October. We decide there are nine Justices. We tried to make it 15 once in the Court-packing era, six Justices for a quorum, et cetera; the Speedy Trial Act telling the courts how they have to move at a certain speed, habeas corpus on time limits. Justice Stevens has said that it is worth a try. Justice Ginsburg at one time said that if it was gavel to gavel, it would be fine. Justice Kennedy said it was inevitable. The record of the Justices appearing on television is extensive. Chief Justice Roberts and Justice Stevens were on Prime time ABC, Justice Ginsburg on CBS, Justice Breyer on Fox News and so forth down the line. We all know that the Senate and the House are televised, and we all know the tremendous, tremendous interest in your nominating process, and it happens all the time. There is a lot of public interest. But the Court is the least accountable. In fact, you might say the Court is unaccountable. When Bush v. Gore was decided, then-Senator Biden and I wrote to Chief Justice Rehnquist asking that television be permitted and got back a prompt answer: ``No.'' And that was quite a scene across the street. The television trucks were just enormous, all over the place. You had to be the Chairman of the Committee to get a seat inside the chamber. The Supreme Court decides all the cutting-edge questions of the day: the right of a woman to choose abortion, the death penalty, organized crime--every cutting-edge question. And Bush v. Gore was one of the biggest cases--arguably, the biggest case. More than 100 million people voted in that election, and the Presidency was decided by one vote. And Justice Scalia had this to say about irreparable harm: ``The counting of votes that are of questionable legality does in my view threaten irreparable harm to''--referring to President Bush, or Candidate Bush--``and to the country, by casting a cloud upon what he claims to be the legitimacy of the election. . . .[P]ermitting the Court to proceed on that erroneous basis will prevent an accurate recount from being conducted on a proper basis later.'' It is hard to understand what recount there was going to be later. I wrote about it at the time saying that I thought it was an atrocious accounting of irreparable harm, hard to calculate that. And my question, Judge Sotomayor: Shouldn't the American people have access to what is happening in the Supreme Court to try to understand it, to have access to what the judges do by way of their workload, by way of their activities when they adjourn in June and reconvene in October, this year in September? Wouldn't it be more appropriate in a democracy to let the people take a look inside the Court through television? The Supreme Court said in the Richmond Newspapers case decades ago that it wasn't just the accused that had a right to a public trial; it was the press and the public as well. And now it is more than newspapers. Television is really paramount. Why not televise the Court?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As you know, when there have been options for me to participate in cameras in the courtroom, I have. And as I said to you when we met, Senator, I will certainly relay those positive experiences, if I become fortunate enough to be there to discuss it with my colleagues. And that question is an important one, obviously. There is legislation being considered both by--or has been considered by Congress at various times, and there is much discussion between the branches on that issue. It is an ongoing dialog. It is important to remember that the Court because of this issue has over time made public the transcripts of its hearing quicker and quicker, if I am accurate, now. It used to take a long time for them to make those transcripts available, and now they do it before the end of the day. It is an ongoing process of discussion.
Senator Arlen Specter (PA)
Senator
(R)
Senator Specter. Thank you, Judge Sotomayor. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much, Senator Specter. And last in this round of questioning will be Senator Franken, the newest member of the Committee. Senator, I didn't officially welcome you the other day as I should have when we have new members, but welcome to the Committee. I offer you congratulations and condolences at the same time to come in on one of the----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I will take the congratulations.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Okay. Well, then was most heartfelt. I am glad you are here. Please go ahead.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Thank you, Mr. Chairman, and thank you, Judge Sotomayor, for sitting here so patiently and for all your thoughtful answers throughout the hearing. Before lunch, our senior Senator from Minnesota, Amy Klobuchar, asked you why you became a prosecutor, and you mentioned ``Perry Mason.'' I was a big fan of ``Perry Mason.'' I watched ``Perry Mason'' every week with my dad and my mom and my brother. And we would watch the clock, and we knew when it was 2 minutes to the half-hour that the real murderer would stand up and confess. [Laughter.] Senator Franken. It was a great show. And it amazes me that you want to become a prosecutor based on that show, because in ``Perry Mason,'' the prosecutor--Burger--lost every week. [Laughter.] Senator Franken. With one exception, which we will get to later. But I think that says something about your determination to defy the odds. And while you were watching ``Perry Mason'' in the South Bronx with your mom and your brother, I was watching ``Perry Mason'' in suburban Minneapolis with my folks and my brother, and here we are today. And I am asking you questions because you have been nominated to a Justice of the United States Supreme Court. I think that is pretty cool. As I said in my opening statement, I see these proceedings both as a way to take a judgment of you and of any nominee's suitability for the high Court, but also as a way for Americans to learn about the Court and its impact on their lives. Right now, people are getting more and more of their information on the Internet, getting newspapers and television and blogs and radio. Americans are getting all of it online, and it plays a central role in our democracy by allowing anyone with a computer connected to the Internet to publish their ideas, their thoughts, their opinions, and reach a worldwide audience of hundreds of millions of people in seconds. This is free speech, and this is essential to our democracy, and to democracy, we saw this in Iran not long ago. Now, Judge, you are familiar with the Supreme Court's 2005 Brand X decision, are you?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. Well, then you know that Brand X deregulated Internet access services, allowing service providers to act as gatekeepers to the Internet, even though the Internet was originally Government funded and built on the notion of common carriage and openness. In fact, we have already seen examples of these companies blocking access to the Web and discriminating on certain uses of the Internet. This trend threatens to undermine the greatest engine of free speech and commerce since the printing press. Let's say you are living in Duluth, Minnesota, and you only have one Internet service provider. It is a big mega corporation, and not only are they the only Internet service provider, but they are also a content provider. They own newspapers. They own TV networks or a network. They have a movie studio. They decide to speed up their own content and slow down other content. The Brand X decision by the Supreme Court allows them to do this. And this is not just Duluth. It is Moorhead, Minnesota; it is Rochester, Minnesota; it is Youngstown, Ohio. It is Denver, it is San Francisco, and, yes, it is New York. This is frightening--frightening to me and to millions of my constituents or lots of my constituents. Internet connections use public resources, the public airways, the public rights of way. Doesn't the American public have a compelling First Amendment interest in ensuring that this can't happen and that the Internet stays open and accessible--in other words, that the Internet stays the Internet?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Many describe the telephone as a revolutionary invention, that changed our country dramatically. So did television. And its regulation of television and the rules that would apply to it were considered by Congress, and those regulations have--because Congress is the policy chooser on how items related to interstate commerce and communications operate. And that issue was reviewed by the courts in the context of the policy choices Congress made. There is no question in my mind as a citizen that the Internet has revolutionized communications in the United States, and there is no question that access to that is a question that society--that our citizens as well as yourself are concerned about. But the role of the court is never to make the policy. It is to wait until Congress acts and then determine what Congress has done and its constitutionality in light of that ruling. Brand X, as I understood it, was a question of which Government agency would regulate those providers, and the Court, looking at Congress' legislation in these two areas, determined that it thought it fit in one box, not the other, one agency instead of another.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Is this Title I and Title II? Or as I understand it, Title II is subject to regulation and Title I isn't.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Exactly, but the question was not so much stronger regulation or not stronger regulation. It was which set of regulations, given Congress' choice, controlled. Obviously, Congress may think that the regulations the Court has in its holding interpreted Congress' intent and that Congress thinks the Court got it wrong. We are talking about statutory interpretation and Congress' ability to alter the Court's understanding by amending the statute if it chooses. This is not to say that I minimize the concerns you express. Access to Internet, given its importance in everything today--most businesses depend on it. Most individuals find their information. The children in my life virtually live on it now. And so its importance implicates a lot of different questions--freedom of speech, freedom with respect to property rights, Government regulation. There's just so many issues that get implicated by the Internet that what the Court can do is not choose the policy. It just has to go by interpreting each statute and trying to figure out what Congress intends.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I understand that, but isn't there a compelling First Amendment right here for people? No matter what Congress does--and I would urge my colleagues to take this up and write legislation that I would like. But isn't there a compelling, overriding First Amendment right here for Americans to have access to the Internet?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Rights by a court are not looked at as overriding in the sense that I think a citizen--or a citizen would think about it, should this go first or should a competing right go second. Rights are rights, and what the Court looks at is how Congress balanced those rights in a particular situation and then judges whether that balance is within constitutional boundaries. Calling one more compelling than the other suggests that they're sort of--you know, property interests are less important than First Amendment interests. That's not the comparison a court makes. The comparison the court makes starts with what balance does Congress choose first, and that we'll look at that if it--and see if it's constitutional.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. So we have got some work to do on this. Let me get into judicial activism. I brought this up in my opening statement. As I see it, there is kind of an impoverishment of our political discourse when it comes to the judiciary. I am talking in politics. When candidates or office holders talk about what kind of judge they want, it is very often just reduced to, ``I don't want an activist judge. I don't want a judge that is going to legislate.'' And that is sort of it. That is it. It is a 30-second sound bite. As I and a couple other Senators mentioned during our opening statements, judicial activism has become a codeword for judges that you just do not agree with. Judge, what is your definition of ``judicial activism'' ?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's not a term I use. I don't use the term because I don't describe the work that judges do in that way. I assume the good faith of judges in their approach to the law, which is that each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles, and to come in good faith to an outcome that we believe is directed by law. When I say ``we believe,'' hopefully we all go through the process of reasoning it out and coming to a conclusion in accordance with the principles of law. I think you are right that one of the problems with this process is that people think of activism as the wrong conclusion in light of policy. But hopefully judges--and I know that I don't approach judging in this way at all--are not imposing policy choices or their views of the world or their views of how things should be done. That would be judicial activism in my sense if a judge was doing something improper like that. But I don't use that word because that's something different than what I consider to be the process of judging, which is each judge coming to each situation trying to figure out what the law means, applying it to the particular fact before that judge.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. You don't use that word or that phrase. But in political discourse about the role of the judiciary, that is almost the only phrase that is ever used. And I think that there has been an ominous increase in what I consider judicial activism of late, and I want to ask you about a few cases and see if you can shed some light on this for us and for the people watching at home or in the office. I want to talk about Northwest Austin Utility District Number One v. Holder, the recent Voting Rights Act, and Senator Cardin mentioned it, but he did not get out his pocket Constitution, as I am. The 15th Amendment was passed after the Civil War and specifically gave Congress the authority to pass laws to protect all citizens' right to vote, and it said, Section 1-- Amendment XV, Section 1, ``The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.'' Section 2, and this one is important: ``The Congress shall have power to enforce this article by appropriate legislation.'' The Congress. Well, Congress used that power, the power vested in it under Section 2, when it passed the Voting Rights Act of 1965. Now, the Voting Rights Act has a specially strong provision, Section 5, that requires States with a history of discrimination to get preapproval from the Justice Department on any changes that they make in their voting regulations. Congress has reauthorized this four times, as recently as--the last time was 2006, and the Senate supported it by a vote of 98-0. Every single Senator from a State covered by Section 5 voted to reauthorize it. So now it is 2009, and we have this case, the Northwest Austin Utility District Number One, and Justice Thomas votes to hold Section 5 unconstitutional. He said it went beyond the mandate of the 15th Amendment because it wasn't necessary anymore. That is what he said. Now, when I read the 15th Amendment, it does not contain any limits on Congress' power. It just says that we have it. It does not say, ``If necessary, the Congress shall have power to enforce this article.'' It just says that we have the power. So it is my understanding that the 15th Amendment contains a very strong, very explicit and unambiguous grant of power to the Congress, and because of that the courts should pay greater deference to it. And my question is: Is that your view?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As you know, some of the Justices in that recent decision expressed the view that the Court should take up the constitutionality of the Voting Rights Act and review its continuing necessity. Justice Thomas expressed his view. That very question, given the decision and the fact that it left that issue open, is a very clear indication that that's a question that the courts are going to be addressing, if not immediately the Supreme Court, certainly the lower courts. And so expressing a view, agreeing with one person in that decision or another, would suggest that I have made a prejudgment on this question. I consider----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. So that means you are not going to tell us. [Laughter.] Senator Franken. I didn't mean to finish your sentence. I think that is where you are going.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. All I can say to you is--I have one decision among many, but one decision on the Voting Rights Act, and not the recent reauthorization by Congress, but a prior amendment where I suggested that these issues needed--issues of changes in the Voting Rights Act should be left to Congress in the first instance. My jurisprudence shows the degree to which I give deference to Congress' findings. Whether in a particular situation that compels or doesn't or leads to a particular result is not something that I can opine on, because particularly the issue you are addressing right now is likely to be considered by the courts. The ABA rule says no judge should make comments on the merits of any pending or impending case, and this clearly would be an impending case.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. It is fair to say, though, in your own decisions you gave deference to Congress, just like you answered my neutrality saying it is up to Congress, it feels like this is very explicitly up to Congress.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I gave deference to the exact language that Congress had used in the Voting Rights Act and how it applied to a challenge in that case.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. Now, voting to overturn Federal legislation, to me at least, seems to be one definition of what people understand as judicial activism. But I want to talk about some cases that I have seen that I think show judicial activism functioning on a more pernicious level. First, let's take a look at a case called Gross v. FBL Financial Services that the Supreme Court issued last month. Are you familiar with that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Now, Gross involved the Age Discrimination in Employment Act, or ADEA. Before Gross, you could bring an age discrimination suit whenever you could show that age was one of the factors an employer considered in choosing to fire you. When the Supreme Court agreed to hear the case, it said it would consider just one question: whether you needed direct evidence of age discrimination to bring this kind of lawsuit or whether indirect evidence would suffice. That is the issue that they said that they would consider when they took the case. But when the Supreme Court handed down its decision, it ruled on a much larger matter: whether a worker could bring a suit under ADEA if age was only one of several reasons for being demoted or fired. The Supreme Court barred these suits saying that only suits alleging that age was the determinative factor for the firing, only those could be brought under the ADEA. This change has significantly eroded workers' rights by making it much harder for workers to defend themselves from age discrimination, including getting fired just before they were to have seen a large increase in their pension. You were not fired because you are too old; you are fired because your pension is going to increase soon. So this is a big deal. When you go to court to defend your rights, you have to know what rights you are defending. The parties in the Gross case thought they were talking about what kind of evidence was necessary in a decision suit. Then the Court said, ``No, we are banning that kind of suit altogether.'' I think that is unfair to everyone involved. It is especially unfair to the man who is trying to bring the discrimination suit. So let me ask you a couple of questions on this. First, as an appellate court judge, how often have you decided a case on an argument or a question that the parties have not briefed?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't think I have, because to the extent that the parties have not raised an issue and the circuit court for some reason the panel has thought that it was pertinent--most often that happens on questions of jurisdiction. Can the Court hear this case at all? Then you issue--or we have issued a direction to the parties to brief that question, so it is briefed and part of the argument that is raised. There are issues that the parties brief that the briefing itself raises the issue for the Court to consider. So it is generally the practice, at least on the Second Circuit, to give a party an opportunity to be heard on a question. And we also have a procedure on the circuit that would give a party to be heard because they can also file the petition for rehearing, which is the panel enters a decision that the party disagrees with and thinks the court has not given it an adequate opportunity to present its arguments. Then it can file that at the circuit. I don't have--I am familiar with the Northwest case. I am familiar with the holding of that case. I am a little less familiar and didn't pay as much attention----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. With Gross.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. To the briefing issue. I do know there that, like the Brand X case, what the Court says it was attempting to do is to discern what Congress' intent was under the ADEA, whether it intended to consider mixed motive or not as a factor in applying the statute. And the majority holding, as I understood it, was, look, Congress amended Title VII to set forth the mixed motive framework and directed the courts to apply that framework in the future. But having amended that, it didn't apply that amendment to the age discrimination statute. And so that would end up in a similar situation to the Brand X case, which is to the extent that that Congress determines that it does want mixed motive to be a part of that analysis, that it would have the opportunity and does have the opportunity to do what it did in Title VII, which is to amend the act.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. In Title VII, they amended the act because they had to, they were forced to. Right? Congress was compelled to, in a sense, but not on ADEA.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't like characterizing the reasons for why Congress acts or doesn't act.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. Let me jump ahead to something. Yesterday a member of this Committee asked you a few times whether the word ``abortion'' appears in the Constitution, and you agreed that, no, the word ``abortion'' is not in the Constitution. Are the words ``birth control'' in the Constitution?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Are you sure?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes. [Laughter.]
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. Are the words ``privacy'' in the Constitution? Or the word.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The word ``privacy'' is not.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Senators Kohl, Feinstein, and Cardin all raised the issue of privacy, but I want to hit this head on. Do you believe that the Constitution contains a fundamental right to privacy?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It contains, as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the Due Process Clause, that extend to the right to privacy in certain situations. This line of cases started with a recognition that parents have a right to direct the education of their children and that the State could not force parents to send their children to public schools or to bar their children from being educated in ways a State found objectionable. Obviously, States do regulate the content of education, at least in terms of requiring certain things with respect to education that I don't think the Supreme Court has considered. But that basic right to privacy has been recognized and was recognized. And there have been other decisions.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. So the issue of whether the word actually appears in the Constitution is not really relevant, is it?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Certainly there are some very specific words in the Constitution that have to be given direct application. There are some direct commands by the Constitution. You know, Senators have to be a certain age to be Senators, and so you got to do what those words say. But the Constitution is written in broad terms, and what a court does is then look at how those terms apply to a particular factual setting before it.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. In Roe v. Wade, the Supreme Court found that the fundamental right to privacy included the right to decide whether or not to have an abortion. And as Senator Specter said, that has been upheld or ruled on many times. Do you believe that this right to privacy includes the right to have an abortion?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The Court has said in many cases--and as I think has been repeated in the Court's jurisprudence in Casey-- that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Okay. We are going to have a round two, so I will ask you some more questions there. What was the one case in ``Perry Mason'' that Burger won? [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I wish I remember the name of the episode, but I don't. I just was always struck that there was only one case where his client was actually guilty and----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. And you don't remember that case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I know that I should remember the name of it, but I haven't looked at the episode----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Didn't the White House prepare you for---- [Laughter.]
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. You're right, but I was spending a lot of time on reviewing cases. But I do have that stark memory because, like you, I watched it all of the time, every week as well. I just couldn't interest my mother the nurse and my brother the doctor to do it with me.
Senator Al Franken (MN)
Senator
(D)
Senator Franken. Oh, Okay. Well, our whole family watched it, and because there was no Internet at the time, you and I were watching at the same time. And I thank you, and I guess I will talk to you in the follow-up.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Is the Senator from Minnesota going to tell us which episode that was?
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I don't know. That is why I was asking. [Laughter.] Senator Franken. If I knew, I wouldn't have asked her.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. All right. So because of that, Judge, we will not hold your inability to answer the question against you. I just discussed this with Senator Sessions, but I will make the formal request. Is there any objection that the Committee now proceed to a closed session, which is a routine practice we have followed for every nominee since back when Senator Biden was Chairman of this Committee?
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Mr. Chairman, thank you. I think that is the right thing to do, and there will be no objection that I know of.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much. I appreciate the comment, and so hearing none, the Committee will proceed to a closed session, and we will resume public hearings later this afternoon. And for the sake of those who have to handle all electronic kinds of things, we will try to give you enough of a heads-up. We will stand in recess. [Whereupon, at 3:07 p.m., the hearing was recessed for a closed session.] After Recess [3:37 p.m.] Chairman Leahy. Judge, why don't we try it again? We'll use--all right. This is not working either?
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. You've got a chance to be on history here.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Back to what is----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. That's the quickest ride of any Senator in history. [Laughter.]
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Back to what it----
Senator Al Franken (MN)
Senator
(D)
Senator Franken. I shouldn't do this. [Laughter.]
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. No, no. Stay right there. Back to what Dr. Branda said. He wrote about Judge Sotomayor, that ``she reflects, via her career on the bench, the type of tempered restraint and moderation necessary for appropriate application of the rule of law, and without a doubt, Judge Sotomayor serves with a moderate voice without displays of bias toward any party based on affiliation, background, sex, color, or religion.'' The letter concludes, ``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'', and goes on to urge us to confirm you. Second, the Committee has received a joint letter of support for Judge Sotomayor's nomination from more than 1,200 law professors from all States--all 50 States and the District of Columbia, as well as from the Society of American Law Teachers. And they write, ``Her opinions reflect careful attention to the facts of each case and a reading of the law that demonstrates fidelity to the types of statutes and the Constitution. She plays close attention to precedent. She has proper respect for the role of courts and other branches of government in our society.'' And the Society of American Law Teachers writes, ``Far from being an activist judge,'' you, Judge Sotomayor, ``decide cases on the basis of her understanding of the law and applicable legal principles.'' I'm going to put that--those letters in the record. [The letters appear as a submission for the record.] Chairman Leahy. And now I will try one more time to see if the microphone will work before my friends in the press get too----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, Mr. Chairman, could I--I believe you were not on the clock then, is that right? So I would like to offer a few documents for the record, if that would be all right.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Go ahead.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. I'd offer a letter from Club for Growth, raising serious concern about the Didden v. Village of Port Chester condemnation case where the Judge approved the taking of a property that was going to have one drugstore built on it and so another company could build on it. The Family Research Council, the letter raising serious concerns, and without more, they must stand in opposition to the nomination. The Concerned Women of America write in opposition to this nomination. I'd offer that into the record. The American Center for Law and Justice, expressing concerns about the nomination. The Americans United For Life have written about the nomination, as well as the Gun Owners of America. I would just offer those for the record at this time, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Without objection, they will be included in the record. That time will not count against either Senator Sessions or myself. [The letters appear as a submission for the record.] Chairman Leahy. Now, on the clock. Judge, one need look no further than the Lilly Ledbetter case or the Diana Levine case, a woman from Vermont, to understand the impact each Supreme Court case has on the lives and freedoms of countless Americans. In Lilly Ledbetter's case, five Justices on the Supreme Court struck a severe blow to the rights of working families across our country and required the Congress to pass legislation basically overruling the Supreme Court case to say, yes, women should be paid the same as men. Justice Ginsburg's dissent in that case criticized the narrow majority for making a cramped interpretation of our civil rights law. In a different context, you sat on a three-judge panel in a case involving strip searches of girls in a juvenile detention center. The parents of two girls challenged a policy of strip searching all those admitted to juvenile detention centers as a violation of the Fourth Amendment's prohibition against unreasonable searches; two of your male colleagues upheld that search. In a dissent, you said a controlling Circuit precedent described what is involved in strip searches of these girls without individual suspicion, who'd never been charged with a crime, and warned that courts should be especially wary of strip searches of children, since youth is a time and condition of life when a person may be most susceptible to influence and to psychological damage. As a parent and a grandparent, I agree with you. You also emphasized that many of these girls had been victims of abuse and neglect and may be more vulnerable mentally and emotionally than other youths their age. The Supreme Court recently considered a similar case involving an intrusive strip search of young Savanna Redding because of school officials looking for ibuprofen tablets. During oral argument in that case, one of the male Justices compared the girl's strip search to changing for gym class. Several of the other Justices' reaction was simply laughter. Justice Ginsburg, the sole female Justice on the court, described the search as humiliating, something that most parents realize. Justice Souter, writing for the court, concluded that school officials violated the Fourth Amendment rights of Savanna Redding, adopted Justice Ginsburg's position and reasoning. I believe these cases underscore the need for diversity. They underscore having judges with different life experiences on the Federal bench, including the Supreme Court. It's been said several times here, citing cases doesn't just take a computer, otherwise we don't need real people. It does need real-life experiences. You are a role model and a mentor to many young people. We've heard that in all kinds of letters and statements. How do you think it affects these young people to see only one woman on the Supreme Court today? How would it affect the confidence in the judicial system of litigants like young Savanna Redding?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I think that it's one of the reasons that every President in the last two--or say 20 years, 25 years, has attempted to promote diversity on a basic understanding that our society is enriched by its confidence that our legal system is--includes all members of society. I know that Justice Ginsburg has spoken about the fact of how much she misses Justice O'Connor, and not because she does not have a good relationship with her colleagues. I understand that she and Justice Scalia have a very, very close friendship and attend the opera together and travel together, so it's not a question, I don't think, of whether there's any question about the importance of the confidence that Americans have in our system because they see that everyone's represented as a part of our legal system, both as judges, as lawyers, as participants on every level of our work.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. When John Roberts, now Chief Justice Roberts, was before the Committee I asked him about a precedent that moved me a great deal: Gideon v. Wainwright. I thought about it later when I was a young lawyer being assigned to defend cases, and later when I was a prosecutor, prosecuting cases. As a young law student, I had an opportunity--in fact, my wife and I had an opportunity. I was at Georgetown Law School. We had lunch with Hugo Black shortly after getting reversed in Wainwright. It's one of the most memorable times I had in my law school career. Now, Hugo Black went on there as a former Senator and he recognized the Constitution's guarantee to counsel in a criminal case was a fundamental right to a fair trial. He called it an ``obvious truth in an adversary system of criminal justice. Any person hauled into court who is too poor to hire a lawyer can't have a fair trial unless counsel is provided for them.'' There's a wonderful book, Gideon's Trumpet, that Anthony Lewis wrote. I still have that book. I still have it. I can almost recite, word for word, that book. So I'm going to ask you exactly the same question I asked then-Judge Roberts: doesn't Gideon stand for the principle that to be meaningful, such a fundamental right as the right to counsel requires assurances that can be exercised?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is a part of the holding of Gideon. It has been reaffirmed in terms of the right to counsel, not only the right to counsel and the representation of criminal issues, but the court has recognized that right with respect to a competent counsel, the question of whether incompetent counsel has caused the defendant damage as assessed under a legal standard. But the question is, the right to counsel was the core holding of Gideon.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. If the Constitution guarantees a person the ability to exercise a certain fundamental constitutional right, whatever it might be, and if they say--the court says they're guaranteed that right, these rights are only meaningful if an American can then enforce those rights in a court. Is that not correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Their rights are meaningful and they are rights that we work at ensuring are given meaning in the courts. I know for a fact that one of the activities--I know for a fact. I know, because I lived it. When I became a judge on the Second Circuit I was given responsibility for the Second Circuit's Committee on the Criminal Judge Act and Pro Bono Service. Generally, that--the chair of the committee is the most recent addition to the court, and immediately upon the confirmation of another judge, that judge takes over the chairpersonship. I, because of my belief in the meaningfulness of representation and its importance to the justice system, have held that position probably for the longest judge in the Second Circuit. With the agreement of judges who came after me, I served as the chair of that committee. I don't know--remember exactly the number of years, but it was certainly a very long period of time, and I worked very hard to improve both the processes of selection of Criminal Justice Act attorneys--those are the attorneys that represent indigent defendants in criminal actions--and to ensure that there was adequate review of their qualifications and regular review of their performance.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. I don't want to put words in your mouth, but is it safe to say that if you have a constitutional right, as a practical effect, that only works if you can enforce that constitutional right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Clearly, that's--in terms of the--it's given meaning through actions, and actions by the legislature, who have provided funds for the retention of qualified counsel, and the court's obligation to ensure that that right is meaningful in practice.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. I've used just barely over half my time. I'll reserve time.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. And hope that sets an example. Senator Sessions. I'm impressed, Mr. Chairman. Thank you. You know, we talked a little earlier about judicial activism. Senator--our new Senator raised that. We have a good definition. Our former chairman, Senator Hatch. He's given us a definition for a number of years, and that is when a judge allows their personal, political, or other biases to overcome their commitment to the rule of law. That's not as well as he said it, but that's pretty close.
Senator Orrin Hatch (UT)
Senator
(R)
Senator Hatch. That's better than I said it.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. But I think that's--and you can have, Senator Franken, a liberal or conservative activist judge, and judges need to be watched, as we all do, to make sure that they stay faithful to the law. I really believe in this legal system. I think it's so fabulous. I've traveled the world with the Armed Services Committee and I see these countries and it just breaks your heart. You think you can go in and write a code of law and they can make it work, and it's just--you can write them all day, but it--making it actually be real in every village, hamlet, and farm, and city in these countries is so, so hard. We are so blessed. So I just want to say, Judge, I appreciate you and look forward to questioning. But I--I just--my approach is to try to do the best thing we can for America in this fabulous system we've got. We've--I think our side is committed to being fair throughout this hearing, and trying to be thoughtful in our questions. Nobody's perfect, but I think everybody's done a pretty good job at that. Now, I've listened to your testimony carefully, looked at some transcripts, and I have to say, I'm still concerned about some of the issues that have been raised. You're seeking a lifetime appointment. This is the one chance we have to ask those questions and we must do that. With regard to the ``wise Latina'' quote where you said that they--they should make decisions that are better than a white male, you--and the question of Senator--Justice O'Connor's comment about a, wise old woman and a wise old man should--would reach the same conclusion. I would just say there's a difference. Both may well be a rhetorical flourish or rhetorical approach to stating a truth, but I think Justice O'Connor's approach, in truth, was that judges, under the American ideal, should reach the same decision if--if they can put aside all their biases and prejudices. And you seem to say in your approach, and throughout that speech, that backgrounds, sympathies and prejudices can impact how you rule, and you could expect a different outcome. How would you respond to that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I want to give you complete assurance that I agree with Senator Hatch on his decision--his definition of activism. If that's his definition, that judges should not be using their personal biases, their personal experiences, their personal prejudices in reaching decision and that's how he defines activism, then I'm in full agreement with him. To the extent that my words have led some to believe that I think a particular group has--has--is better than another in reaching a decision based on their experiences, my rhetorical device failed. It failed because it left an impression that I believe something that I don't. And as I have indicated, it was a bad choice of words by me in--because it left an impression that has offended people and has left an impression that I didn't intend. As I indicated earlier, I----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. But did it not--could I just briefly interrupt? Did it not suggest that your approach to the question of objectivity and commitment to it was different than Justice O'Connor's? Didn't you cite it in--in opposition to her view?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I--I can explain it, is I didn't understand her to mean that she thought that if two judges reached a different conclusion, that one of them was unwise because judges disagree as to conclusions. And I know that there's an aspiration that the law would be so certain that that would never happen, but it's not that certain. Laws are not written clearly, on occasion, by Congress. Courts apply principles of construction that suggest an approach to a particular set of facts that might differ. All of that doesn't make one or the other judge wise. So----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. I would agree with that. And I--I think one judge--you can have honest disagreements. I think that she was expressing the ideal that if everybody were perfectly wise, they may reach the same decision. With regard to the Second Amendment, this is a hugely important issue. Isn't it true, Judge, that the decision that you and your panel rendered, if it were to be the law of the United States and if it is not reversed by the U.S. Supreme Court, would say that the Second Amendment is subject to--is not--the Second Amendment does not protect the right of the people to keep and bear arms in any city, county, and State in America. That is that New York, or Atlanta, or Philadelphia, or Houston, Los Angeles, or any State in between could pass a law that barred firearms within those States, and isn't this a really big issue right now for the United States Supreme Court coming up soon?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It may well come up. And I'm not familiar enough with the regulations in all 50 States to know whether there's an absolute prohibition in any one city or State against the possession of firearms. All I can speak about is that, as in the case the panel looked at, the question for the court would not be whether the government action in isolation is constitutional or not. The question--in isolation. It would be, what's the nature of the government interest in the statute it's passing? And depending on the----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. That's the rational basis test?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Exactly. And so----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, but the rational basis test could very well be fairly interpreted to say that since guns kill people, it's rational for a city to vote to eliminate all guns. I would just say to you, isn't it true that if a city could pass that very low test they could ban firearms if your decision is not reversed by the Supreme Court?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Because that question of incorporation before the court will arise, I don't feel that I can comment on the merits of the hypothetical. All I can say is, regardless of what standard of review the court uses, it has struck down regulations under every standard of review used, whether it's rational basis, or in some instances strict scrutiny, et cetera. There is the constitutional----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Judge, I would just say that you held, following some law in the 1800's--you held, though, that the Second Amendment does not apply to the States, even though it uses the words ``the right of the people to keep and bear arms shall not be infringed''. So I'm--I think we have a--this is a big issue and I--in your opinion, you said it was settled law. You used some very strong language. You said it was not ``a fundamental right'', and you said that in your testimony earlier, that ``in Supreme Court parlance, the right is not fundamental.'' You said that, I believe, to Senator Leahy in this hearing. So I guess my question is, have you made up your mind such that if you were on the Supreme Court and it was not your case that came up--and it could be your case--don't you feel that you should recuse yourself since you've already opined on this fundamental issue?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I have not prejudged the question that the Supreme Court left open in Heller, and the question the court left open itself was, should it reexamine the issue of whether this right should be incorporated against the States or not? It didn't, in large measure, because the issue before the court at that moment was the right with respect to Federal Government regulation. I have not made up my mind. I didn't say that I believed it wasn't fundamental or that I hold a view that it's not. I don't hold a view about whether it should be incorporated or not. The issue before me and the panel in Maloney was whether the Supreme Court had said that and what Second Circuit had said about that issue.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Has any other Circuit said it was not a fundamental right, other than your--your panel's decision?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There is one Circuit, the Seventh Circuit, in a decision written by Judge Easterbrook, who came to the same conclusion.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Did he say--did he say it was not a fundamental right, though, in that opinion? I don't believe they did.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. He may not have because----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. And that was a question--my question I was asking. So it's a problem for people. We ask about abortion. It's not explicitly referred to in the Constitution, but you say that's a fundamental right. And we have in the Constitution language that says ``the right of the people to keep and bear arms shall not be infringed'', and there's a question about that, that it's not a fundamental right. So I think that's what makes people worry about our courts and our legal system today and whether agendas are being promoted through the law rather than just strictly following what the law says.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, may I----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Yes.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor.--address my use of the word ``fundamental'' ? Fundamental is a legal term that I didn't make up, it was the Supreme Court's term. And it used it in the context--and uses it in the context--of whether a particular constitutional provision binds the States or not. And so I wasn't using the word--I. The panel wasn't using the word in Maloney in the sense of its ordinary meaning.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. I know you were using the constitutional legal meaning, but that's hugely important because if it's not a fundamental right, it's not incorporated. Isn't that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. And it will not apply to the States fundamentally. Isn't that the bottom line?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, when the court looks at that issue it will decide, is it incorporated or not, and it will determine, by applying the test that it has subsequent to its old precedent, whether or not it is fundamental, and hence, incorporated. But the Maloney decision was not addressing the merits of that question, it was addressing what precedent said on that issue.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. All right. Well, we'll review that. On the question of foreign law, you, yesterday, said that-- said this: ``Unless the statute requires or directs you to look at foreign law,'' and some do--some statutes do, by the way. You go on to say, ``The answer is no. Foreign law cannot be used as a holding, or a precedent, or to bind or influence the outcome of a legal decision interpreting the Constitution or American law.'' That's a pretty good statement, I think. But this is what you said before in your speech to the American Civil Liberties Union, actually in April, just two or 3 months ago in Puerto Rico. You said this: ``International law and foreign law will be very important in the discussion of how we think about unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do this, because within the American legal system we're commanded to interpret our law in the best way we can, and that means looking to what other-- anyone else has said to see if it has persuasive value.'' So that's troubling. Now, you also said, yesterday, that you agreed with Justice Scalia and Justice Thomas on the point that one has to be very cautious, even in using foreign law with respect to things American law permits you to do. I don't think that's exactly correct or a fair summary of the import of your speech. This is what you said before the ACLU group a month or two ago: ``And that misunderstanding'', about using foreign law, ``is, unfortunately, endorsed by some of our Supreme Court Justices.'' Both--``unfortunately endorsed''. Both Justice Scalia and Justice Thomas have written extensively, criticizing the use of foreign and international law in Supreme Court decisions. They have somewhat a valid point, and you point that out. But then you go on to say, ``But I think I share more the ideas of Justice Ginsburg and her thinking in believing that unless American courts are more open to discussing the ideas raised in foreign cases and by international cases, that we're going to lose influence in the world.'' So everybody knows. There's been a fairly robust, roaring debate over this question. There are basically two sides, one led by Justice Ginsburg and one led by Justices Scalia and Thomas. Don't you think a fair reading of this statement is that you came down on the side of Justice Ginsburg?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. Because these conversations were in the context--and discussions were in the context of my pointing out, just as she had, that foreign law can't be a holding, it can't be precedent, it can't be used in that way. She is talking about the way I was to--and what I said in my speech at the beginning and the end, ideas. What are you thinking about? Judges use Law Review articles, they use statements by other courts. The New York Court of Appeals, in a recent case, looked to foreign law to address an issue that it was considering, not in terms of a holding for the court, but a way of thinking about it that it would consider. My point is that I wasn't advocating that it should ever serve as precedent or ever serve as a holding. I was talking about the dialog of ideas and----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Well, you know, we go--I just think that you laid out positions and you came down on one side, and I think that's a fair summary of that speech which other people-- others can read and make up their own mind. You ask about the PRLDF, the Legal Defense Fund of which you were a member and a member of the board for 12 years. And in response to Senator Graham's question, you say you've never seen any briefs and that the main focus of your work at the organization was fund raising. Is that accurate?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. When I was responding to the Senator I was talking about the board in general. I belonged to many committees, and so I did other things besides fund raising. But I was beginning to explain what the structure of the board was and what the primary responsibility of board members is. But clearly, board members serve other functions in an organization.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. You did serve on the Litigation Committee, and boards are supposed to, I would think--and legally are required--to superintend the activities of the organization that they're a member of. And then you have committees of the board who do various things. I'm looking at a June 1987 document, reported minutes of the board, the Litigation Committee: ``Sonia Sotomayor reported that the committee, in addition to reviewing and recommending a litigation program, had identified three initiatives.'' In October 1987--I'm just looking at some of the documents we were given--litigation report. ``Chairman Sotomayor summarized the activities of the committee over the last several months, which included the review of the litigation efforts of the past and present, and initial exploration of potential areas of emphasis. Member Sotomayor advised that a preliminary report would be provided at January meeting.'' And then at the January meeting, there's about a 50-page document summarizing 30 or more cases that the board had undertaken. A number of them are pretty significant and very consistent with the kind of case that we had in the Firefighters case, where the board had filed litigation to really basically insist that you have perfect harmony between the applicants for a job and those who are selected for promotions. Isn't that true that you were more active than you may have suggested to Senator Graham yesterday?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, because, as I said, I was--I started to describe the role of the board generally and we were not addressing the question of what I did or how I participated. That memo has to be examined in context. The memo was a moment in our 12-year history where the board was planning a retreat to think about what directions, if any, we should consider moving into or not. We were not reviewing the individual cases to see if the individual cases--what positions were taken, the type of strategies that we----
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Didn't you know the cases that--that you--the position--the organization was--well my time was running out.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Your time has run out. I was wondering if you'd like to finish your answer.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. I'll let you answer. But I'm just want to----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The end of my answer was, the Fund had been involved in a series of areas, employment, public health, education, and others. And so the broader question for the Fund was, should we be considering some other areas of interest to the community? We held a retreat in which speakers from a variety of different civil rights organizations, academics, a number of people came and just talked to us. I don't actually remember there being a firm decision that followed that, but it was a part of a conversation, the sort of retreats that even my court has engaged in: what are we doing; what are we thinking about? But it wasn't a review of each individual case to judge its merits.
Senator Jeff Sessions (AL)
Senator
(R)
Senator Sessions. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Judge, there's been a lot of talk about the Maloney case. I should note, it's not what you said. It's what Justice Scalia's opinion for the Supreme Court said in his decision, left in place the 123-year-old Supreme Court precedent on guns, did it not?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Justice Scalia, in a footnote in the Heller decision, noted the court's holding that the Second Amendment wasn't incorporated against the States.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. The only reason I mention that, I've been a gun owner since I was probably 13 years old. I've seen nothing done by the Supreme Court, by the Second Circuit Court of Appeals, by the Congress, or by our State legislature that is going to change, one way or the other, the ownership that I have of the guns I now have.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Senator Kohl. Thank you very much, Senator Leahy. Judge Sotomayor, you've told us that you will follow the law and follow precedent, and you've made a very big point of this and that is all well and good. But some of the court's most important landmark hearings-- landmark rulings overruled longstanding precedent, like Brown v. Board of Education, which ended legal segregation. Now, as an appellate judge, as we know, you're required to always follow precedent. But as a Supreme Court Justice, you will have the freedom to depart from precedent. So tell us how you will decide when it is appropriate to alter, amend, or even overrule, precedent.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The doctrine of stare decisis is a doctrine that looks to the value in the stability, consistency, predictability of precedent and it starts from the principles that precedent are important values to the society because it helps those goals. It also guides judges in recognizing that those who have become before them, the judges who have looked at these issues, have applied careful thought to the question and view things in a certain way, and a court should--a judge should exercise some humility and caution in disregarding the thoughts and conclusions of others who came--who came in that position before them. But that's not to suggest that the doctrine says that precedence is immutable. And, in fact, I believe that England had an experiment with that question and--and it was not horribly successful. Precedents are precedents. They're not immutable, they have to change in certain circumstances. And those circumstances generally have been described by Justice Souter in the Casey case, are probably the best articulation people have come to in sort of talking about the factors that courts think about. And it starts with, well, how much reliance has the society put into the precedent? What are the costs of changing it? I shouldn't say ``start''. He put them in a different order. There's no real importance to the order because all are factors that you put into the weighing as a judge looks at an existing precedent. It looks to whether the--whatever the court has said. Is it providing enough guidance to the court's below and to--and for people to determine what they can or can't do? Is the precedent administratively workable? Number three--and as I said, there's no ordering to this-- are the facts that the court assumed in its older precedents. Have those changed so that it would raise a question about the court revisiting a precedent? Also, has--are the--there are developments in related fields to precedents and approaches that are developed in those cases that may bring into question the foundation of an older precedent. Brown v. Board of Education has often been described as a radical change by some, and the public perceives it as a radical change. When you actually look at its history, you realize there had been jurisprudence for over 20 years by the court striking down certain--certain schemes that provided ``separate but equal'', but in fact didn't achieve their stated goal. And so there was underpinnings in Brown v. Board of Education that, in those precedents that came before Brown that obviously gave the court some cause, some reason to re-think this issue of ``separate but equal''. They also had before them the--probably one of the most famous dissents in American history, which was the dissent by Justice Harlan in Plessy. And Justice Harlan so carefully laid out what the Constitution said, what the principles of the Constitution were that motivated the--the Congress to pass those amendments. He laid out the court's precedents in that area and he said, separate but equal is just not consistent with the Constitution. Now, this isn't an opinion where he described another group of people as different, and so it wasn't that he was being motivated by his personal views. He was being motivated by a view of the law that the court, in Brown, made a change about. One final factor the court obviously looks at is the number of times a precedent has been reaffirmed by the court, but all of these things are decided on the basis of judgment of a particular case and the arguments that are raised before a judge, and recognizing as a judge that precedent is deserving of deference, precedent, and changing it should be done cautiously by a court, but precedent can't stand if other things counsel that it not.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Good. Judge, I'd like to return to the topic of antitrust. Two years ago in the Twombly case, Justice Souter wrote an opinion that sharply departed from precedent when it held that a plaintiff must show extensive evidence to support an antitrust case before the opportunity for any discovery, otherwise the case would be dismissed. This decision makes it very difficult for any plaintiff to bring an antitrust action, particularly a consumer or small business without the resources to develop extensive economic evidence. What is your assessment of this decision? Do you share the concern of many that this does serious damage to enforcement of antitrust law?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As with all issues of statutory construction, my charge as a judge would be, how do I apply a court's holding in a particular case in the next situation before me? The concern that you express is one that I have heard about that expressed by some, but as a judge I don't make policy. I don't make the policy choices for Congress. I'm charged with looking at a particular situation that comes before me, looking at the court's precedent and applying it to that situation. With respect to that case, I--I--that case, as I understand the case, had to do with how much had to be pled. I didn't understand it to mean that there had to be the presentation of evidence at the pleading stage, just what had to be pled to withstand a motion to dismiss in the case.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Well, my understanding of his decision is that, in the future, plaintiffs must show extensive evidence to support an antitrust case before the opportunity for any discovery or else the case will be dismissed. Now, assuming that's correct--and I'm not telling I'm positive, but assuming that's correct--does that cause you concern?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I said, the issue of concern is not how I look at the court's precedents, because what I'm doing in looking at the court's precedent is thinking about how it applies to another case. The question of how to do that and whether that's right by the court would be a question that Congress, who has passed the antitrust laws, would have to, in the first instance, think about changing.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. So then are you saying in a case that would follow you would necessarily be bound by Justice Souter's decision in Twombly?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The court considers its various precedents in the context of a new situation. In the cases decided by the courts, they're applied to the facts of the particular case. Twombly is considered, as are all the court's precedent in a new case, that examines the issue of what a complaint must allege or not allege.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. So you would not be bound by the Twombly precedent, is that what you're saying?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. It's precedent.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. So you would be bound?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It must be applied, as is all the court's existing precedents that have not been rejected by the court. It has to be considered and has to be weighed in the situation presented.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right. I think maybe we can talk about that subsequently to understand your meaning and what I'm saying, my reading of Twombly versus your reading of Twombly, as it will affect future antitrust cases. My understanding is that it will have a very negative effect on--a negative impact on the average person or small business' ability to bring an antitrust case that might otherwise have merit, because of the requirement that they present enormous amounts of evidence even before they can go to discovery or the case is dismissed. Now, if I'm speaking accurately, then I think that that's a precedent that needs to be thought about very carefully, and that's why I asked the question.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And Senator, the one thing I do know as a judge is that every argument gets made to the courts not on one occasion, but many. The question that will arise is: what's the extent of the court's application in the next case?
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. All right. Finally, Judge, the Supreme Court not only has the power, as you know, to decide cases and to construe the Constitution, but it also has the sole and absolute power to decide which cases it hears. If you are confirmed, only you and three other Justices can decide whether a case will be heard to begin with by the Supreme Court. In recent times, the Supreme Court has received appeals in nearly 7,000 cases each year and it only hears about 70 or 80 cases, as you know. In other words, the Justices choose to hear only about 1 percent of the appeals that they receive. This is obviously a very, very crucial power that Justices have. Now, I recognize that one of the criteria for choosing cases is to resolve disagreement among the Circuit Courts about a particular aspect of the law, but many of the most important and prominent cases in the history of the Supreme Court did not involve splits into Circuit Courts, but were instead cases of national importance. So how will you determine which cases are so important as to warrant review by the Supreme Court? In other words, which 1 percent of those appeals will you consider?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. What I know, and you did accurately describe one aspect of the Supreme Court's local rules that suggest just that Justices will consider a variety of factors in whether to grant cert or not, and one of those listed factors is disagreement among the Circuits, disagreements among the Circuits and Circuits and State courts and issues that have not been adequately addressed but require being addressed for a variety of different reasons. It is very difficult to talk in the abstract about when cert should be granted because each situation presents a different set of facts and each question about whether a case is in the right posture to look at an issue--as I said yesterday, sometimes there--yesterday I said--I may have explained earlier in a response to Senator Specter, and I know that you had stepped away, there are procedural--there are cases that present other arguments than the one that the Circuit split exists on, and those other arguments might dispose of the case in the way the Circuit Court did and not necessitate the reaching of an issue. There's a question, at least as some Justices have defined it, of whether there's been enough percolation among the Circuit Courts so that all of the views of a particular issue have been fully explored. The circumstances and the issues that each Justice uses depends on the facts and the posture of what comes before it. I would obviously consider the court's local rules. I would give consideration to the point that some have raised, that the court is not doing enough. But that can't counsel taking cases. That could only be-- look at my--look at the workload and see, can the case--can the court do this if it meets all the other criteria that goes into the mixture of whether to grant cert or not? You don't, like Congress, think about policy, we're going to decide 150 cases this year. You look at the cases that come before you and you figure out which ones are in a place to be reviewed.
Senator Herb Kohl (WI)
Senator
(D)
Senator Kohl. Thank you.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you very much. Senator Hatch, we'll turn to you and then we will--and then we will take a break after you're finished. [Recess at 4:55 p.m. to 5:08 p.m.] Chairman Leahy. Welcome back, Judge. We will skip over one and go to Senator Feingold. You are recognized for up to 20 minutes. I keep adding the ``up to'' hoping somebody will follow my example.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Well, I----
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. But I do mean nobody will be cut off before 20 minutes.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Thank you, Mr. Chairman. I understand, and I'd like to begin using my time by asking that a letter from former members of PRLDEF's Board describing the role of board members, which does not include choosing or controlling litigation--I'd ask unanimous consent.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Without objection it will be part of the record. [The letter appear as a submission for the record.]
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Thank you, Mr. Chairman. Judge, again, thanks for your tremendous patience. I'd like to start by talking for a moment about the recent Supreme Court decision in Caperton v. Massey. I consider this a significant case that bears upon the flood of special interest money that threatens to undermine public confidence in our justice system. The facts of this case are notorious: John Grisham used them as an inspiration for his novel, The Appeal. A jury in West Virginia returned a $50 million verdict for a large coal company, and pending the appeal, the company's CEO spent $3 million to elect an attorney named Brent Benjamin to the state supreme court. That was a huge amount of money, relatively speaking--more than the amount spent by all of Benjamin's other financial supporters combined. Benjamin won the election, became a West Virginia Supreme Court Justice, and lo and behold, he voted to overturn that $50 million verdict against his main campaign contributor. Twice, he refused to recuse himself in the case, despite his obvious conflict of interest. Last month, the Supreme Court held that Benjamin's failure to recuse himself was intolerable under our Constitution's guarantee of due process of law. The court also noted approvingly that most states have adopted codes of judicial conduct that prevent this kind of conflict, and to that end, I commend the Wisconsin Supreme Court's plan to revise its recusal rules to provide additional safeguards that protect judicial impartiality. You've been a judge for many years and you may have seen examples when you thought a judge should have withdrawn, although hopefully none were as egregious as this case. In your opinion, what additional steps should judges and legislators take to ensure that the judiciary is held to the highest ethical standards and that litigants can be confident that their cases will be handled impartially?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I would find it inappropriate to make suggestions to Congress about what standards it should hold judges to or litigants to. That's a policy choice that Congress will consider. I note that the American Bar Association has a Code of Conduct that applies to litigants. The Judicial Code has a Code of Conduct for judges. And as you noted in--in the State system where judges are elected, many States are doing what I just spoke about, making and passing regulations. Caperton was a case that was taken under the local rules of the Supreme Court, presumably, that exercises supervisory powers over the functioning of the courts and it presented, obviously, a significant issue because the court took it and decided the case. At issue fundamentally is that judges, lawyers, all professionals must, on their own, abide by the highest standards of conduct. And I have given a speech on this topic to students at Yale at one point where I said the law is only the minimum one must do. Personally, one must act in a way in cases to ensure that you're acting consistent with your sense of meeting the highest standards of the profession.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. Thank you, Judge. As I'm sure you know, on the last day of the term, the Supreme Court ordered that a pending case involving federal election law called Citizens United v. FEC be re-argued in September. It's quite possible that you will be a member of the court by then. I do not intend to ask you how you would rule in that case, but I do want to express my very deep concern about where the Supreme Court may be heading, and then pose a general question to you. In 2003, the court, in a 5-4 ruling, upheld the McCain- Feingold bill against constitutional challenge. I believe that ruling accurately applied the court's previous precedents and recognized that Congress must have the power to regulate campaign finance to address serious problems of corruption and the appearance of corruption. Since the arrival on the court of its two newest members, the court seems to have started in another direction on these issues, striking down or significantly narrowing two provisions of the law: the Millionaire's Amendment in the Davis case and the issue ad provision in Wisconsin Right to Life. Several Justices have even argued that corporations and living persons should have the same constitutional rights to support their chosen candidates and that Austin v. Michigan Chamber of Commerce, a case rejecting that idea, should be overruled. Austin is premised on what I believe is an absolutely reasonable conclusion that the political activities of corporations may be subjected to greater regulation because of the legal advantages given to them by the states that allow them to amass great wealth. In scheduling re-argument in the Citizens United case, the court specifically asked the parties to address whether Austin should be overruled. If the court does that, and depending on how exactly it rules, Judge, it may usher in an era of unlimited corporate spending on elections that the nation has not seen since the 19th century. Without addressing the specifics of the Citizens United case, I'd like to ask you what the Constitution and the Supreme Court's precedents generally provide about the rights of corporations, and what the current state of the law is as far as corporate participation in elections, as you understand it.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I have attempted to answer every question that's been posed to me. You have noted that Citizens United is on the court's docket for September. I think it's September 9th. If I were confirmed for the--to the court, it would be the first case that I would participate in. Given that existence of that case, the very first one, I think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that I'm going into that process with some prejudgment about what precedent says and what it doesn't say, and how to apply it in the open question the court is considering. I appreciate what you have said to me, but this is a special circumstance given the pendency of that particular case.
Senator Russ Feingold (WI)
Senator
(D)
Senator Feingold. And frankly, Judge, I probably would say the same thing if I were in your shoes, given---- [Laughter.] Senator Feingold.--given the facts as they are. I appreciate the opportunity to express what I wanted to say about that. And with that, Mr. Chairman, I'm going to use up less than half of my time.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. All right. Thank you. I think you've set a fantastic example. [Laughter.] Chairman Leahy. I commend you. I say that in a totally nonpartisan fashion.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Senator Grassley. I assume that I get the time that he didn't use?
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. No. [Laughter.] Chairman Leahy. No. After your demonstrator, was it yesterday--your demonstrator, that you tend to turn people on, we don't need any more. [Laughter.]
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. We don't need any more excitement, Senator Grassley.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Yeah.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. We want it as low-key as possible. But you--you do have up to 20 minutes. The opportunity is up to 20 minutes.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Now, I believe that I'm going to ask you something you've never been asked before during this hearing, I hope. I'd like to be original on something. I want to say to you that there's a Supreme Court decision called Baker v. Nelson, 1972. It says that the Federal courts lack jurisdiction to hear due process and equal protection challenges to State marriage laws ``for want of substantial Federal question'', which obviously is an issue the courts deal with quite regularly, I mean, the issue of is it a Federal question or not a Federal question. So do you agree that marriage is a question reserved for the States to decide based on Baker v. Nelson?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That also----
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. I thought I'd ask a very easy----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor.--is a question that's pending and impending in many courts. As you know, the issue of marriage and what constitutes it is a subject of much public discussion, and there's a number of cases in State courts addressing the issue of what--who regulates it, under what terms.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Can I please interrupt you?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Uh-huh.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. I thought I was asking a very simple question based upon a precedent that Baker v. Nelson is, based on the proposition that yesterday, in so many cases, whether it was Griswold, whether it was Roe v. Wade, whether it was Chevron, whether it's a whole bunch of other cases that you made reference to, the Casey case, the Gonzalez case, the Leegan Creative Leather Products case, the Kelo case. You made that case to me. You said these are precedents. Now, are you saying to me that Baker v. Nelson is not a precedent?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. I just haven't reviewed Baker in a while, and so I actually don't know what the status is. If it is the court's precedent, as I've indicated in all of my answers, I will apply that precedent to the facts of any new situation that implicates it.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Well----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Always the first question for a judge.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Well, then tell me--tell me what sort of a process you might go through if a case, a marriage case, came to the Supreme Court of whether Baker v. Nelson is precedent or not, because I assume if it is precedent, based on everything you told us yesterday, you're going to follow it.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The question on a marriage issue will be, two sides will come in. One will say Baker applies, another will say this court's precedent applies to this factual situation, whatever the factual situation is before the court. They'll argue about what the meaning of that precedent is, how it applies to the regulation that's at issue, and then the court will look at whatever it is that the State has done, what law it has passed on this issue of marriage, and decide, Okay, which precedent controls this outcome? It's not that I'm attempting not to answer your question, Senator Grassley. I'm trying to explain the process that would be used Again, this question of how, and what is constitutional or not, or how a court will approach a case and what precedent to apply to it, is going to depend on what's at issue before the court. Could the State do what it did?
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Can I interrupt you again? Following what you said yesterday, that certain things are precedent, I assume that you've answered a lot of questions before this Committee about--even after you said that certain things are precedent, of things that are going to come before the court down the road when--if you're on the Supreme Court. You didn't seem to compromise or hedge on those things being precedent. Why are you hedging on this?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I'm not on this because the holding of Baker v. Nelson is it's holding. As a holding, it would control any similar issue that came up. It's been a while since I've looked at that case so I can't----
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor.--as I could with some of the more recent precedent of the court or the more core holdings of the court on a variety of different issues, answer exactly what the holding was and what the situation that it applied to. I would be happy, Senator, as a follow-up to a written letter, or to give me the opportunity to come back tomorrow and just address that issue. I'd have to look at Baker again.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. I would appreciate it.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's been too long since I've looked at it.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Yeah. You----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. So it may have been, sir, as far back as law school, which was 30 years ago.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Oh, were you probably in grade school, you were at that time.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yeah. It was--I know that I looked at it, sir.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Okay. I want to go on, but I would like to have you do that, what you'd suggested you'd answer me further after you've studied it. I have a question that kind of relates to the first question. In 1996, Congress passed, and President Clinton signed into law, the Defense of Marriage Act which defined marriage for the purpose of Federal law as between one man and one woman. It also prevents a State or territory from giving effect to another State that recognizes same-sex marriages. Both provisions have been challenged as unconstitutional and Federal courts have upheld both cases, one is the Wilson case, one is the Bishops case, in District Court. Do you agree with Federal courts which have held that the Defense of Marriage Act does not violate the full faith and credit clause and is an appropriate exercise of Congress' power to regulate conflicts between laws in different States?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That's very similar to the Austin situation, but the ABA rules would not permit me to comment on the merits of a case that's pending or impending before the Supreme Court. The Supreme Court has not addressed the constitutionality of that statute, and to the extent that lower courts have addressed it and made holdings, it is an impending case that could come before the Supreme Court. So, I can't comment on the merits of that case.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Have you ever made any rulings on the full faith and credit clause?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I may have. But if your specific question is, have I done it with respect to a marriage-related issue----
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Well, I'm not----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. On any--on anything in the full faith and credit clause.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I actually have no memory of doing so.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. That's Okay. No, you can stop there. That's Okay. Now, I'm going to go to a place where Senator Hatch left off, but I'm not going to repeat any of the questions that he asked. But there's one that I want to ask, and I feel a little bit guilty on this. My dad used to have a saying to us kids when we were harping on something. He says, ``When are you going to quit beating a dead horse? '' But I want to ask you anyway. You--you also wrote, ``I wonder whether achieving that goal is possible in all, or even in most, cases, and I wonder whether, by ignoring our differences as women and men of color, we do a disservice both to the law and to society.'' So the concern I have about the statement is it's indicating that you believe judges should, and must, take into account gender, ethnic background, or other personal preferences in their decision making process. Is that what you meant? And I want to follow it up so I don't have to ask two questions: how is being impartial a disservice to the law and society? Isn't justice supposed to be blind?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, I do not believe that judges should use their personal feelings, beliefs, or value systems or make their--to influence their outcomes, and neither do I believe that they should consider the gender, race, or ethnicity of any group that's before them. I absolutely do not believe that. With respect to, yes, is the--is the goal of justice to be impartial, that is the central role of a judge. It--the judge is the impartial decision maker between parties who come before them. My speech was on something else, but I have no quarrel with the basic principles that you have asked me to recognize.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Now, no quarrel sounds equivocal. They--I do believe in those things absolutely, and that's what I have proven I do as a judge.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Then the last one on this point of another remark you made. You also stated that you ``further accept that our experiences as women and people of color affect our decisions''. And then, further, ``that personal experiences affect the facts that judges choose to see,'' and that, further, ``there will be some (differences in my judging) based on my gender and Latina heritage.'' Do you believe that it is ever appropriate for judges to allow their own identity/politics to influence their judging?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir. Absolutely not.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. Then I want to move on to another area. This question comes from your 1992 Senate questionnaire. You wrote in response to a question about judicial activism that ``intrusions by a judge upon the functions of other branches of government should only be done as a last resort and limitedly''. Is this still your position? And let me follow up: when would such an intrusion be justified? For example, what is an example of last resort? What is an example of limited--``limitedly'' ?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The answer is, judges and--and the manner in which that question was responded to was, to the extent that there has been a violation of the Constitution in whatever manner of court identifies in a particular case, it has to try to remedy that situation in the most narrow way in order not to intrude on the functions of other branches or actors in the process. The case that I--was discussed in my history has been the Doe case, in which I joined the panel decision where the District Court had invalidated a statute that found unconstitutional a statute that the legislator--legislature had passed on national security letters. Our panel reviewed that situation and attempted to discern, and did discern, Congress' intent to be that despite a--isolation provisions that might have to be narrowly construed to survive constitutional review, it held that the other provisions of the Act were constitutional. So the vast majority, contrary to what the District Court did--and I'm not suggesting it was intending to violate what I'm describing, but the court took a different view than the Circuit did--we upheld the statute in large measure. To the extent that we thought there were, and found that there were two provisions that were unconstitutional, we narrowly construed them in order to assist in effecting Congress' intent. That's what I talked about ``limitedly'' in that answer.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Okay. A little bit along the same line, in your Law Review articles you wrote that, ``Our society would be straitjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling''--and I don't know whether that's your emphasis or mine, but I've got it underlined--``the law and adapt''--maybe I'd better start over again. ``Our society would be straitjacketed were it not--were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever- changing social, industrial, and political changes.'' The explanation of the statement from you. I think you're saying that judges can twist the law regardless of what the legislature, the elected branch of government, has enacted into law. It's kind of my interpretation of that. Obviously I think you're going to tell me you don't mean that, but at least you know where I'm coming from.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. That interpretation was clearly not my intent, and if--I don't actually remember those particular words, but I do remember the speech. I'm assuming you're talking about returning majesty to the law. And there I was talking about a broader set of questions, which was how to bring the public's respect back to the function of judges. And I was talking about--that judges--that lawyers have an obligation to explain to the public the reasons why what seems unpredictable in the law has reasons, and I mentioned in that speech that one of the big reasons is that Congress makes new laws. That was the very first reason I discussed. And also that there's new technology, there's new developments in society, and what lawyers do is come in and talk to you about, okay, we've got these laws, how do you apply them to this new situation? And what judges do--and that's why I was talking about the assistance of judges of lawyers--is what you do, is you look at the court's precedent, you look at what a statute says and you try to understand the principles that are at issue and apply them to what the society is doing, and that was the focus of my speech, which was, talk to the public about the process. Don't feed into their cynicism that judges are activists, that judges are making law. Work at explaining to the--to the public what the process is. I also talk to--part of my speech is what judges can do to help improve respect of the public in the legal process.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. So the use of the word ``overhaul'' does not in any way--``overhaul the law''----
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Right.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley.--does not in any way imply usurpation of legislative power by the courts?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. And if you look at what I was talking about, it was, the society develops.
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Yeah.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. We are not, today, what we were 100 years ago in terms of technology, medicine, so many different areas. There are new situations that arise and new facts that courts look at. You apply the law to those situations, but that is the process of judging which is sort of trying to figure out, what does the law say about a set of facts that may not have been imagined at the time of the founding of the Constitution, but it's what the judge is facing then: how do you apply it to that?
Senator Chuck Grassley (IA)
Senator
(R)
Senator Grassley. Yeah. I want to go back to Didden based upon my opportunity to reflect on some things you said yesterday. The time limit to file a case in Didden was 3 years. Mr. Didden was approached for what he classified as extortion in November 2003. Two months later, in January of 2004, he filed his lawsuit. But under your ruling, Mr. Didden was required to file his lawsuit in July 2002, close to a year and a half before he was actually extorted. So that doesn't make sense to require someone to file a lawsuit on a perceived chance that an order might occur. You also testified that the Supreme Court's Kelo decision was not relevant to the Didden holding, but your opinion, in cursory fashion, which is a problem that we addressed yesterday, states that if there was no Statute of Limitations issue, Kelo would have permitted Mr. Didden's property to be taken. It's hard to believe that an individual's property can be seized when he refuses to be extorted without any constitutional violation taking place. It's even harder to believe that, under these circumstances, Mr. Didden--Mr. Didden did not deserve his day in court or at least some additional legal analysis. Could you please explain how Mr. Didden could have filed his lawsuit July 2002 before he was extorted in November 2003? And also please explain why a July 2002 filing would not have been dismissed because there was no proof that Mr. Didden had suffered an injury, only an allegation that he might be injured in the future.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The basis of Mr. Didden's lawsuit was, the State can't take my property and give it to a private developer, and--because that is not consistent with the Takings Clause of the Constitution. To the extent he knew the State--and there's no dispute about this--that the State had found a public use for his property, that it had a public purpose, that it had an agreement with a private developer to let that developer take the property, he knew that he was injured because his basic argument was, the State can't do this. It can't take my property and give it to a private developer. The Supreme Court, in Kelo, addressed that question and said under certain circumstances the State can do that if it's for a public use and a public purpose. And so his lawsuit essentially addressing that question came 5 years after he knew what the State was doing. The issue of extortion was a question of whether the private developer, in setting a lawsuit with them, was engaging in extortion, and extortion is an unlawful asking of money with no basis. But the private developer had a basis. He had an agreement with the State. And so that is a different issue than the timeliness of Mr. Didden's complaint.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Chairman Leahy. Senator Cardin? We'll recognize Senator Cardin. And then for those who have to plan, we will then recess until 9:30 tomorrow morning.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Senator Cardin. Well, Judge, let me first say that since this will be my last time in this hearing to address you, to say this has been my first confirmation hearing for a--Supreme Court Justice. You have set a very high standard for me and for those I might have to consider, because there's always a possibility of future vacancies on the Supreme Court. As for responding to our questions, being very open with us, and I think really demonstrating the type of respect for the process that has really shown dignity to you and to our committee, I thank you for that. I thanked you in the beginning for your willingness to serve the public as a prosecutor and as a judge, and now willing to take on this really incredible responsibility. I just really want to emphasize that again. I don't know if you thought when you were being considered for this what you would have to go through as far as the appearance before the Judiciary Committee, but it gets better after our hearings, I believe. So let me ask you one or two questions, if I might. I want to follow up on Senator Kohl's question on the selection of cases under certiorari. As has been pointed out earlier, maybe 1 percent of the cases that are petitioned to the Supreme Court actually recieve an opinion. Now, Senator Kohl asked you what standards you would use in choosing cases and one factor I believe is important to look at is the impact that a Supreme Court case can have on society. I'm going to refer to one of your cases, the Boykin case, which was the housing case where you allowed that borrower to go forward, African-American, on a discrimination issue. And we've seen throughout history discrimination against minorities in housing, with red-lining and predatory lending. It led to the Fair Housing Act enacted by Congress. The Supreme Court has long recognized Title 7 and 8 of the Federal Housing Act as part of the coordinated scheme of the Federal civil rights laws enacted to end discrimination. But there are still major challenges that are out there. Predatory lending still takes place. It's happened during this housing crisis with the subprime mortgage market targeted toward minority communities. I say that in relationship to the Boykin case, which I agreed with your conclusion that it not only could affect the litigants that were before you, but could have an impact on industry practice if, in fact, there was discrimination and the case was decided by your court. And the same thing is true in the Supreme Court, more so in the Supreme Court. It is the highest judgment of our land. And yes, you have to be mindful when you take a case on cert as to the impact it will have on the litigants. Certainly you have to take into consideration if there's been different, inconsistent rulings in the different Circuits. But it seems to me that one of the standards I would hope you would use in choosing cases is the importance of deciding that particular case for the impact it can have on a broader group of people in our Nation, whether it's a housing case that could affect communities' ability to get fair access to mortgages for home ownership, or whether it's a case that could have an impact on a class of people, on environmental or economic issues. And I just would like to ask you whether this, in fact, is a reasonable request as you consider certiorari requests, that one of the factors that is considered is the impact it has on the community at large.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I indicated earlier, we don't make policy choices. That means that I would think it inappropriate for a court to choose a case because--or a court--a judge to choose a case based on some sense of, I want this result on society. A judge takes a case to decide a legal issue, understanding its importance to an area of law and to arguments that parties are making about why it's important. The question of--of impact is different than what a judge looks at, which is what's the state of the law and this question, and how--and what clarity is needed, and other factors. But as I said, there's a subtle but important difference in separating out and making choices based on policy and how you would like an issue to come out than a question that a judge looks at in terms of assessing the time at which a legal argument should be addressed.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. And I respect that difference and I don't want you to be taking a case to try to make policy. But I do think the--need for clarity for the community as to what is appropriate conduct well beyond the litigants of a particular case is a factor where clarification is needed and should weigh heavily on whether the court takes that type of case or not.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. There's just no one factor that controls the choice where you say, I'm going to look at every case this way. As I said, judges in--in--well, I shouldn't talk because I haven't--I'm not there.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. All right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. But my understanding of the process is that it's not based on those policy implications of an outcome.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Uh-huh.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's based on a different question than that.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Well, let me conclude on one other case that you ruled on where I also agree with your decision, and that's in Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a District Court summary judgment, finding in favor of the Muslim inmate who was denied, by prison officials, access to his religious meals marking the end of Ramadan. You held that the inmate's fundamental rights were violated and that the opinions of the Department of Corrections and religious authorities cannot trump the plaintiff's sincere and religious beliefs. Religious Freedom is one of the basic principles in our Constitution. As I said in my opening comments, it was one of the reasons my grandparents came to America. The freedom of religion expression is truly a fundamental American right. Please share with us your philosophy as to--maybe that's the wrong use of terms, but the importance of that provision in that Constitution and how you would go about dealing with cases that could affect this fundamental right in our Constitution.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I--I don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the States. [Laughter.] Judge Sotomayor. But it is a very important and central part of our democratic society that we do give freedom of religion, of practice of religion, that the Constitution restricts the--the State from establishing a religion, and that we have freedom of expression and speech as well. Those freedoms are central to our Constitution. The four cases, others that I have rendered in this area, recognize the importance of that in terms of one's consideration of actions that are being taken to restrict it in a particular circumstance. Speaking further is difficult to do, again, because of the role of a judge. To say it's important, that it's fundamental, that it's legal in common meaning, is always looked at in the context of a particular case. What's the State doing? In the Ford case that you just mentioned, the question there before the court was, did the District Court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue? Okay. And what I was doing was applying very important Supreme Court precedent that said it's the subjective belief of the individual. Is it really motivated by a religious belief? That's one of the reasons we recognize conscientious objectors, because we're asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual's religious belief and then look at what the State is doing in light of that. So that was what the issue was in Ford.
Senator Ben Cardin (MD)
Senator
(D)
Senator Cardin. Well, thank you for that answer. Again, thank you very much for the manner in which you have responded to our questions. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Thank you very much, Senator Cardin. As I noted earlier, we will now recess until 9:30 tomorrow morning. I wish you all a pleasant evening. Thank you. [Whereupon, at 5:50 p.m. the Committee was recessed.] CONTINUATION OF THE NOMINATION OF HON. SONIA SOTOMAYOR, TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES ---------- 40010 U.S. Senate, Committee on the Judiciary, Washington, D.C. The Committee met, pursuant to notice, at 9:33 a.m., in room SH-216, Hart Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. Present: Senators Leahy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cardin, Whitehouse, Klobuchar, Kaufman, Specter, Franken, Sessions, Hatch, Grassley, Kyl, Graham, Cornyn, and Coburn. Chairman Leahy. Judge, thank you. Judge Sotomayor, welcome back to the Committee for a fourth day. If this seems long, it is a day more than either Chief Justice Roberts or Justice Alito was called upon to testify. But you seem to have weathered it well, and I hope the Senators have, too. Yesterday we completed the extended first round of questions, and an additional eight Senators got approximately halfway through a follow-up round. This morning we can continue and hopefully conclude. Senator Kyl is recognized next for 20 minutes, or as I say with hope springing eternal--I keep saying ``up to 20 minutes.'' Nobody is required to use the full 20 minutes, but I would hasten to add, everybody is certainly entitled to. Senator Kyl.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Mr. Chairman, before I begin, for those who are watching this on television, I would just note that I don't think we put Judge Sotomayor on the hot seat with our questions, but we certainly did with the temperature in this room yesterday, and for that I apologize. And I note that it could get a little steamy this morning, too. I know it is cold back there, but it is not at all cool where we are.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. If I could respond----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. If there is ever a question about Judge Sotomayor's stamina in a very hot room, that question has been dispelled without any doubt whatsoever.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. If I might--and I will ask them to set the clock back to the 20 minutes so this does not go into your time--it is really an interesting thing, because anybody who has gone up where the press are, it is like an icebox up there. And I am hoping we can get this--but at least the microphone is working. I want to thank Senator Sessions for offering me his microphone yesterday, but that did not work. And I want to thank Senator Franken for letting me use his. So if we start the clock back over so I do not take this out of Senator Kyl's time, Senator Kyl, please go ahead, sir.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Thank you, and good morning, Judge.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Good morning.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. In response to one of Senator Sessions' questions on Tuesday about the Ricci case, you stated that your actions in the case were controlled by established Supreme Court precedent. You also said that a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and Second Circuit precedent. And you said that the Supreme Court was the only body that had the discretion and the power to decide how these tough issues should be decided. Those are all quotations from you. Now, I have carefully reviewed the decision, and I think the reality is different. No Supreme Court case had decided whether rejecting an employment test because of its racial results would violate the civil rights laws. Neither the Supreme Court's majority in Ricci nor the four dissenting judges discussed or even cited any cases that addressed the question. In fact, the Court in its opinion even noted--and I am quoting here--that ``this action presents two provisions of Title VII to be interpreted and reconciled with few, if any, precedents in the court of appeals discussing the issue.'' In other words, not only did the Supreme Court not identify any Supreme Court cases that were on point; it found few, if any, lower court opinions that even addressed the issue. Isn't it true that you were incorrect in your earlier statement that you were bound by established Supreme Court and Second Circuit precedent when you voted each time to reject the firefighters' civil rights complaint?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Senator, I was--let me place the Ricci decision back in context. The issue was whether or not employees who were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit. Did they have a right to bring a lawsuit on the basis of prima facie case and what would that consist of? That was established Second Circuit precedent and had been, at least up to that point, concluded from Supreme Court precedents describing the initial burden that employees had. That was----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Well, are you speaking here--you said had the right to bring the lawsuit. It is not a question of standing. There was a question of summary judgment.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Exactly. Exactly, which is, when you speak about a right to bring a lawsuit, I mean what's the minimum amount of good-faith evidence do they have to actually file the complaint. And established precedent said you can make out, an employee, a prima facie case of a violation of Title VII under just merely by--not ``merely.'' That's denigrating it. By showing a disparate impact. Then the city was faced with the choice of, OK, we're now facing two claims, one----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. If I could just interrupt, we only have 20 minutes here, and I am aware of the facts of the case. I know what the claims were. The question I asked was very simple. You said that you were bound by Supreme Court and Second Circuit precedent. What was it? There is no Supreme Court precedent, and as the Court itself noted, they could find few, if any, Second Circuit precedents.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The question was the precedent that existed and whether, viewing it, one would view this as the city discriminating on the basis of race or the city concluding that because it was unsure that its test actually avoided disparate impact but still tested for necessary qualifications, was it discriminating on the basis of race by not certifying the test?
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. So you disagree with the Supreme Court's characterization of the precedents available to decide the case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's not that I disagree. The question was a more focused one that the Court was looking at, which was saying--not more focused. It was a different look. It was saying, OK, you have got these precedents. It says employees can sue the city. The city is now facing liability. It is unsure whether it can defeat that liability. And so it decides not to certify the test and see if it could come up with one that would still measure the necessary qualifications----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Let me interrupt again because you are not getting to the point of my question, and I know as a good judge, if I were arguing a case before you, you would say, ``That is all fine and dandy, counsel, but answer my question.'' Isn't it true that--two things--first, the result of your decision was to grant summary judgment against these parties? In other words, it wasn't just a question of whether they had the right to sue. You actually granted a summary judgment against the parties. And, second, that there was no Supreme Court precedent that required that result? And I am not sure what the Second Circuit precedent is. The Supreme Court said ``few, if any.'' And I don't know what the precedent would be. I am not necessarily going to ask you to cite the case, but was there a case? And if so, what is it?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It was the ones that we discussed yesterday, the Bushey line of cases that talked about the prima facie case and the obligations of the city in terms of defending lawsuits claiming disparate impact. And so the question then became: How do you view the city's action? Was it--and that's what the district court had done in its 78-page opinion to say you have got a city facing liability----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. All right. So you contend that there was Second Circuit precedent. Now, on the en banc review, of course, the question there is different because you are not bound by any three-judge panel decision in your circuit. So what precedent would have bound--and yet you took the same position in the en banc review. For those who are not familiar, a three-judge court decides the case in the first instance. In some situations, if the case is important enough, the other judges on the circuit--there may be 9 or 10 or 20; I think in the Ninth Circuit there are 28 judges in the circuit. And you can request an en banc review. The entire circuit would sit. And in that case, of course, they are not bound by a three-judge decision because it is the entire circuit sitting of 10 or 12 or 20 judges. So what precedent then would have bound the court in the en banc review?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The panel acted in accordance with its views by setting forth and incorporating the district court's analysis of the case. Those who disagreed with the opinion made their arguments. Those who agreed that en banc certification wasn't necessary voted their way, and the majority of the court decided not to hear the case en banc. I can't speak for why the others did or did not take the positions they did. Some of them issued opinions. Others joined opinions.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. But you felt you were bound by precedent?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That was what we did in terms of the decision, which was to accept the--not accept but incorporate the district court's decision analyzing the case and saying we agreed with it.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Understood. But the district court decision is not binding on the circuit court, and the en banc review means that the court should look at it in light of precedents that are stronger than a three-judge decision. So I am still baffled as to what precedent you are speaking of?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Perhaps it is just one bit of background needs to be explained. When a court incorporates, as we did in a per curiam, a district court decision below, it does become the court's precedent. And, in fact, when I----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. The three judges?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes, but when I was on the district court, I issued also a lengthy decision on an issue, a constitutional issue, a direct constitutional issue, that the circuit had not addressed and very few other courts had addressed on the question of whether AEDPA's statute of limitations on habeas were----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Okay. Excuse me. I apologize for interrupting, but I have now used half of my time, and you will not acknowledge that even though the Supreme Court said there was no precedent, even though the district court judgment and a three-judge panel judgment cannot be considered precedent binding the en banc panel of the court, you still insist that somehow there was precedent there that you were bound by.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I explained, when the circuit court incorporated the district court's opinion, that became the court's holding.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Of course.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. So it did become circuit holding. With respect to----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. By three judges.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. With respect--yes. I'm sorry. With respect to the question of precedent, it must be remembered that what the Supreme Court did in Ricci was say: There isn't much law on how to approach this. Should we adopt a standard different than the circuit did? Because it is a question that we must decide, how to approach this issue to ensure that two provisions of Title VII are consistent with each other. That argument of adopting a different test was not the one that was raised before us, but that was raised clearly before the Supreme Court. And so that approach is different than saying that the outcome that we came to was not based on our understanding of what it made out a prima facie case.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Well, if it is a matter of first impression, do judges on the Second Circuit typically dispose of important cases of first impression by a summary, one-paragraph order, per curiam opinion?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Actually, they did in one case I handled when I was a district court judge.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Would that be typical?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't know how you define ``typical,'' but if the district court opinion in the judgment of the panel is adequate and fulsome and persuasive, they do. In my Rodriguez v. Artuz case, when I was at district court, on the constitutionality of an act by Congress with respect to the Suspension Clause of the habeas provision, the court did it in less than a paragraph. They just incorporated my decision as the law of the circuit or the holding of the circuit.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Well, let me quote from Judge Cabranes' dissent. He said, ``The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straightforward questions that do not require exploration or elaboration by the court of appeals. The questions raised in this appeal cannot be classified as such as they are indisputably complex and far from well settled.'' I guess legal analysts are simply going to have to research and debate the question of whether or not the cases of first impression or complex, important cases are ordinarily dispensed of that way. Let me just say that the implications--the reason I address this is the implications of the decision are far-reaching. I think we would all agree with that. It is an important decision, and it can have far-reaching implications. Let me tell you what three writers, in effect, said about it and get your reaction to it. Here is what the Supreme Court said in Ricci about the decision, about the rule that your court endorsed. It said that the rule that you endorsed--and I am quoting now--``allowing employers to violate the disparate treatment prohibition based on a mere good-faith fear of disparate impact liability would encourage race-based action at the slightest hint of disparate impact.'' This is the Supreme Court. ``Such a rule,'' it said, ``would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race. Even worse, an employer could discard test results or other employment practices with the intent of obtaining the employer's preferred racial balance.'' Your colleague on the Second Circuit Judge Cabranes said that under the logic of your decision--and I quote again-- ``municipal employers could reject the results of an employment examination whenever those results failed to yield a desirable racial outcome''--in other words, ``failed to satisfy a racial quota.'' That is why the case is so important. I would imagine you would hope that that result would not pertain. I guess I can just ask you that, that you would not have rendered this decision if you felt that that would be the result.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I argued--argued. As I stated earlier, the issue for us, no, we weren't endorsing that result. We were just talking about what the Supreme Court recognized, which was that there was a good-faith basis for the city to act. It set a standard that was new, not argued before us below, and that set forth how to balance those considerations. That is part of what the Court does in the absence of a case previously decided that sets forth the test. And what the Court there said is good faith is not enough.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Understood.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Substantial evidence is what the city has to rely on. Those are different types of questions.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Of course. And the point is you don't endorse the result that either Judge Cabranes or the Supreme Court predicted would occur had your decision remained in effect. I am sure that you would hope that result would not pertain.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes. But I didn't--that wasn't the question we were looking at. We were looking at a more narrow question, which was: Could a city in good faith say we're trying to comply with the law, we don't know what standard to use, we have good faith for believing that we should not certify? Now the Supreme Court has made clear what standard they should apply. Those are different issues.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Well, I am just quoting from the Supreme Court about the rule that you endorsed in your decision. And, again, it said, the Supreme Court said about your rule that, ``Such a rule would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to make hiring decisions on the basis of race. Even worse, an employer could disregard test results or other employment practices with the intent of obtaining an employer's preferred racial balance.'' I guess we both agree that that is not a good result. Let me ask you about a comment you made about the dissent in the case. A lot of legal commentators have noted that while the basic decision was 5-4, all nine of the Justices disagreed with your panel's decision to grant summary judgment, that all nine of the judges believed that the court should have been-- that the district court should have found the facts in the case that would allow it to apply a test. Your panel had one test. The Supreme Court had a different test. The dissent had yet a different test. But, in any case, whatever the test was, all nine of the Justices believed that the lower court should have heard the facts of the case before summary judgment was granted. I heard you to say that you disagreed with that assessment. Do you agree that the way I stated it is essentially correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It's difficult because there were a lot of opinions in that case, but the engagement among the judges was varied on different levels. And the first engagement that the dissent did with the majority was saying if you are going to apply this new test, this new standard, then you should give the circuit court an opportunity to evaluate the evidence----
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Well, Judge, I have to interrupt you there. The Court didn't say if you are going to apply a new standard you need to send it back. All nine Justices said that summary judgment was inappropriate, that the case should have been decided on the facts. There were three different tests: the test from your court, the test of the majority of the Supreme Court, and the test of the dissent. Irrespective of what test it was, they said that the case should not have been decided on summary judgment. All nine Justices agreed with that, did they not?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I don't believe that's how I read the dissent. It may have to speak for itself, but I--Justice Ginsburg took the position that the Second Circuit's panel opinion should be affirmed, and she took it by saying that no matter how you looked at this case, it should be affirmed. And so I don't believe that--that was my conclusion reading the dissent, but obviously it will speak for itself.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Well, it will, and I guess commentators can opine on it. I could read commentary from people like Stuart Taylor, for example, who have an opinion different from yours, but let me ask you one final question in the minute and a half that I have remaining. I was struck by your response to a question that Senator Hatch asked you about yet another speech that you gave in which you made a distinction between the justice of a district court and the justice of a circuit court, saying that the district court provides justice for the parties, the circuit court provides justice for society. Now, for a couple of days here, you have testified to us that you believe that not only do district and circuit courts have to follow precedent but that the Supreme Court should follow precedent. So it is striking to me that you would suggest--and this goes back to another comment you made, perhaps flippantly, about courts of appeals making law. But it would lead one to believe that you think that the circuit court has some higher calling to create precedent for society. In all of my experience--you have Smith v. Jones in the district court. The court says the way we read the law, Smith wins. It goes to the court of appeals. The court has only one job to decide: Does Smith win or does Jones win? It doesn't matter what the effect of the case is on society. That is for legislators to decide. You have one job. Who wins, Smith or Jones, based on the law? And you decide, yes, the lower court was right; Smith wins. You are applying precedent and you are deciding the case between those parties. You are not creating justice for society except in the most indirect sense that any court that follows precedent and follows the rule of law helps to build on this country's reliance on the rule of law.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I think we are in full agreement. When precedent is set, it is set--it follows the rule of law. And in all of the speeches where I have discussed this issue, I have described the differences between the two courts as one where precedents are set, that the precedents have policy ramifications, but not in the meaning that the legislature gives to it. The legislature gives it a meaning in terms of making law. When I am using that term, it is very clear that I am talking about having a holding, it becomes precedent, and it binds other courts. You are following the rule of law when you are doing that.
Senator Jon Kyl (AZ)
Senator
(R)
Senator Kyl. Mr. Chairman, I am over the time, but just a final follow-up question, if I could. You yourself noted that you have created precedent as a district court judge. Both district courts and circuit courts created precedent simply by deciding a case, but they are both required to follow precedent. Isn't that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Only because the Senator went over, I would note the district court in that case did cite the Reeves case, which is a year 2000 Supreme Court case, as precedent, and a binding Second Circuit case, the Hayden case, as precedent. And as the judge has noted, the per curiam decision incorporated the district court decision.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Senator Feinstein. Thank you very much, Mr. Chairman. I have great respect for Senator Kyl. I have worked with him, I guess, for about 12 years now on a subcommittee of this committee. But I think there is a fundamental misreading of the Supreme Court decision if I understand it. It is my understanding that the court was 5-4, is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It was.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. And that the four dissenters indicated that they would have reached the same conclusion as the Second Circuit did, is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That was my understanding.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Thank you. Let me clear one thing up. I am not a lawyer and I have had a lot of people ask me, particularly from the west coast who are watching this. What is per curiam? Would you please in common, everyday English explain what through the court means?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. It is essentially a unanimous opinion where the court is taking an Act where it is not saying more than either incorporating a decision by the court below, because it is not adding anything to it.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. In some cases, it is when there is--Judge Cabranes in his dissent pointed out in some cases it is simply used to denote that an issue is so clear and unambiguous that we are just going to--the law. It can be used in a variety of different ways, but it is generally where you are doing something fairly--in a very cursory fashion either because a District Court judge has done a thorough job----
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Which was the case in this case with a very voluminous opinion that I believe was over 50 pages. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I keep saying 78 because that is what I-- --
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Over 50.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. And as I said, my circuit did that in a case where I addressed as a District Court judge a case of first impression on a direct constitutional issue, the suspension clause. Or it can have--one of the meanings can be that given by Judge Cabranes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Right. Now, my understanding also is that there is precedent in other courts. I am looking at a decision, Oakley v. City of Memphis written by the Circuit Court. Essentially what it does is uphold the lower court that did exactly the same thing. Are you familiar with that case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. It is an unpublished opinion, I believe. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. And it was a racially mixed group of male and female lieutenants. They took the test, the results came in, the test was canceled and the court upheld the cancellation.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. So your case is not starkly out of the mainstream. The reason I say this is going back to my days as mayor, particularly in the 1980's when there were many courts and many decisions involving both our police and fire departments. It was a very controversial area of the law. But the point I wanted to make is there is precedent and this is certainly one of them.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I would agree that it was precedent. I will not choose to quarrel with the Supreme Court's description of the situation.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Right. I am not asking you to. Now, many have made comments regarding your wise Latina comment. I would just like to take a minute to put your comments in the context of the experiences of women. This country is built on very great accomplishments. We forged a new country, we broke away from the British, we wrote documents that have stood the test of time, the Declaration of Independence, the Constitution, the Bill of Rights. But we also have a history of slavery, of segregated schools, of employment discrimination, of hate crimes and unspoken prejudices that can make it very hard for individuals to be treated fairly or even to believe that they can do well in this society. So I understand empowerment and the role that it plays. Everything has been hard fought. We as women did not have the right to vote until 1920 and that was after a tremendous battle waged by a group of very brave women called suffragettes. We graduated law school in 1979. There had never been women on the Supreme Court. Today, women represent 50.7 percent of the population, 48 percent of law school graduates and 30 percent of American lawyers. But there are only 17 women Senators and only one woman currently serving on the Supreme Court and we still make only $.78 on the dollar that a man makes. So we are making progress, but we are not there yet and we should not lose sight of that. My question is, as you have seen this, and you must have seen how widely broadcast this is, that you become an instant role model for women. How do you look at this, your appointment to the court affecting empowerment for women? And I'd be very interested in any comments you might make, and this has nothing to do with the law.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I chose the law because it is more suited to that part of me that has never sought the kind of attention that other public figures get. When I was in law school, some of my friends thought I would go into the political arena not knowing that what I sought was more the life of a judge, the thinking involved in that and the process of the rule of law. My career as a judge has shown me that regardless of what my desires were, that my life, what I have accomplished, does serve as an inspiration for others. It is a sort of awesome sense of responsibility. It is one of the reasons that I do so many activities with people in the community. Not just Latinas, but all groups because I understand that it is women, it is Latinas, it is immigrants. It is all kinds and all backgrounds. Each one of us faces challenges in their life. Whether you were born rich or poor, of any color or background, life's challenges place hurdles every day. One of the wonderful parts of the courage of America is that we overcome them. I think that people have taken that sense that on some levels I have done some of that at various stages in my life. So for me, I understand my responsibility. That is why I understand and have tried as much as I can to reach out to all different kinds of groups and to make myself available as much as I can. Often I have to say no, otherwise I'd never work. But I meet my responsibilities and work very hard at my job, but I also know I have a responsibility to reach out.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator Feinstein. Well, for whatever it is worth, I think that you are a walking, talking example of the best part of the United States of America. I just want to say how very proud I am that you are here today and it is my belief that you are going to be a great Supreme Court Justice. I just wanted to say that to you directly and publicly. Thank you. Thank you, Mr. Chairman.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Senator Graham. Chairman Leahy. Senator Graham.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Thank you, Mr. Chairman. Something I would like to say to you directly and publicly and with admiration for your life story is that a lot of the wrongs that have been mentioned, some have been righted, some have yet to come. Judge, I hope you understand the difference between petitioning one's government and having a say in the electoral process and voting for people that, if you do not like, you can get rid of and the difference of society being changed by nine unelected people who have a lifetime appointment. Do you understand the difference in how those two systems work?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Absolutely, sir. I understand the Constitution.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. The one thing I can tell you--and this will probably be the last time we get to talk in this fashion. I hope to have a chance to get to know you better and we will see what your future holds, but I think it is going to be pretty bright. The bottom line is one of the problems the court has now is that Mr. Ricci has a story to tell, too. There are all kinds of stories to tell in this country and the court has, in the opinion of many of us, gone into the business of societal change, not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box. Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do. Certainly, we are not brave enough in my state. And if I had been elected as a Senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson in the political arena. But the court went through an analysis that separate was not equal. It had a basis in the Constitution, after fact- finding, to reach a reasoned conclusion in the law and the courage to implement that decision, and the society had the wisdom to accept the court's opinion, even though it was contentious and, literally, people died. We are going to talk about some very difficult societal changes that are percolating in America today, like who should get married and what boundaries there are on the definition of marriage, and who is best able or the most capable of making those fundamental decisions. The full faith and credit clause, in essence, says that when a valid enactment of one state is entered into, the sister states have to accept it. But there is a public policy exception in the full faith and credit clause. Are you aware of that?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I am, applied in different situations.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Some states have different age limits for marriage. Some states treat marriage differently than others, and the courts deferred based on public policy. The reason these speeches matter and the reasons elections matter is because people now understand the role of the court in modern society when it comes to social change. That is why we fight so hard to put on the court people who see the world like us. That is true from the left and that is true from the right. Let me give you an example of why that is important. We have talked a lot about the Second Amendment, whether or not it is a fundamental right. We all now agree it is an individual right. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Correct.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, that is groundbreaking precedent in the sense that just until a few months ago or last year, I guess, that was not the case. But it is today. It is the law of the land, by the Supreme Court, the Second Amendment is an individual right, and you acknowledge that. That is correct? The Heller case.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That was the decision and it is what the court has held, and so it is unquestionably an individual right.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. But here is the next step for the court. You will have to, if you get on the court, with your fellow justices, sit down and discuss whether or not it is a fundamental right to the point that it is incorporated through the due process clause of the 14th Amendment and applied to every state. Is it not fair to say, Judge, that when you do that, not only will you listen to your colleagues, you will read whatever case law is available, you are going to come down based on what you think America is all about?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No, sir.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. So what binds you when it comes to a fundamental right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The rule of law.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Is not the rule of law, when it comes to what you consider to be a fundamental right, your opinion as to what is fundamental among all of us?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. No. In fact, the question that you raise, is it fundamental in the sense of the law.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Right.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. That is a legal term. It's very different and it is important to remember that the Supreme Court's precedent on the Second Amendment predated its more closely developed----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I hate to interrupt, but is there sort of a legal cookbook that you can go to and say this is a fundamental right, A, and B is not?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, there's not a cookbook, but there's precedent that was established after the older precedent that has talked and described that doctrine of incorporation. That's a set of precedents that----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Are you talking about the 1890 case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes. Well, no. The 1890 case was the Supreme Court's holding on this issue. But since that time, there has been a number of number of decisions discussing the incorporation doctrine, applying it to different provisions of the Constitution.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Is there any personal judgment to be relied upon by a Supreme Court justice in deciding whether or not the Second Amendment is a fundamental right?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, you hire judges for their judgment, not their personal views or what their sense of what the outcome should be. You hire your point judges for the purpose of understanding whether they respect law, whether they respect precedent and apply it in a----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. I do not doubt that you respect the law, but you are going to be asked, along with eight other colleagues, if you get on the court, to render a decision as to whether or not the Second Amendment is a fundamental right shared by the American people. There is no subjective judgment there?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The issue will be controlled by the court's analysis of that question in the case, fundamental as defined by incorporation, in--likely will be looked at by the court in a case that challenges a state regulation. At that point, I would presume that the court will look at its older precedent in the way it did in Heller, consider whether it controls the issue or not. It will decide, even if it controls it, whether it should be revisited under the doctrine of stare decisis. It could decide it doesn't control and that would be its decision. It could decide it does control, but it should revisit it. In revisiting it, it will look at a variety of different factors, among them, have there been changes in related areas of law that would counsel questioning this. As I've indicated, there was a lot of law after the older cases on incorporation. I suspect, but I don't know, because I can't prejudge the issue, that the court will consider that with all of the other arguments that the parties will make.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, maybe I have got it wrong then. Maybe I am off base here. Maybe you have got the seven the circuit talking about the Heller case did not decide the issue of whether it should be incorporated to the states, because it has only dealt with the District of Columbia. You have got the ninth circuit--and I never thought I would live to hear myself say this--look at the ninth circuit. They have a pretty good rationale as to why the Second Amendment should be considered a fundamental right and they talked about the longstanding relationship of the English man, and they should have put woman, at least in South Carolina that would have applied, to gun ownership. They talked about it was this right to bear arms that led to our independence. It was this right to bear arms that put down a rebellion in this country. And they talked about who we are as a people and our history as a people. And, Judge, that is why the Supreme Court matters. I do believe, at the end of the day, you are not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the Second Amendment, that you are going to have to rely upon your view of America, who we are, how far we have come and where we are going to go, and our relationship to gun ownership. That is why these choices are so important. And here is what I will say about you and you may not agree with that, but I believe that is what you are going to do and I believe that is what every other justice is going to do. And here is what I will say about you. I do not know how you are going to come out on that case, because I think, fundamentally, Judge, you are able, after all these years of being a judge, to embrace a right that you may not want for yourself, to allow others to do things that are not comfortable to you, but for the group, they are necessary. That is my hope for you. That is what makes you, to me, more acceptable as a judge and not an activist, because an activist would be a judge who would be chomping at the bit to use this wonderful opportunity to change America through the Supreme Court by taking their view of life and imposing it on the rest of us. I think and believe, based on what I know about you so far, that you are broad-minded enough to understand that America is bigger than the Bronx, is bigger than South Carolina. Now, during your time as an advocate, do you understand identity politics? What is identity politics?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Politics based simply on a person's characteristics, generally referred to either race or ethnicity or gender, religion. It is politics based on----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you embrace identity politics personally?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Personally, I don't, as a judge, in any way embrace it with respect to judging. As a person, I do believe that certain groups have and should express their views on whatever social issues may be out there. But as I understand the word ``identity politics,'' it's usually denigrated because it suggests that individuals are not considering what's best for America, and that I don't believe in. I think that whatever a group advocates, obviously, it advocates on behalf of its interests and what the group thinks it needs, but I would never endorse a group advocating something that was contrary to some basic constitutional right as it was known at the time, although people advocate changes in the law all the time.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Do you believe that your speeches, properly read, embrace identity politics?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I think my speeches embrace the concept that I just described, which is, groups, you have interests that you should seek to promote; what you're doing is important in helping the community develop; participate, participate in the process of your community; participate in the process of helping to change the conditions you live in. I don't describe it as identity politics, because it's not that I'm advocating that groups do something illegal.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Well, Judge, to be honest with you, your record as a judge has not been radical, by any means. It is, to me, left of center. But your speeches are disturbing, particularly to conservatives, quite frankly, because they do not talk about get involved, go to the ballot box, make sure you understand that American can be whatever you would like it to be, there is a place for all of us. Those speeches, to me, suggested gender and racial affiliations in a way that a lot of us wonder will you take that line of thinking to the Supreme Court in these cases of first precedent. You have been very reassuring here today and throughout this hearing that you are going to try to understand the difference between judging and whatever political feelings you have about groups or gender. Now, when you were a lawyer, what was the mission statement of the Puerto Rican Legal Defense Fund?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. To promote the civil rights and equal opportunity of Hispanics in the United States.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. During your time on the board, and you had about every job a board member could have, is it a fair statement to say that all of the cases embraced by this group on abortion advocated the woman's right to choose and argued against restrictions by state and Federal Government on abortion rights?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I can't answer that question, because I didn't review the briefs. I did know that the fund had a health care----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Judge?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor [continuing]. Docket that included challenges to certain limitations on a woman's right to terminate her pregnancy under certain circumstances.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Judge, I may be wrong, but every case I have seen by the Puerto Rican Legal Defense Fund advocated against restrictions on abortion, advocated Federal taxpayer funding of abortion for low income women. Across the board, when it came to the death penalty, it advocates against the death penalty. When it came to employment law, it advocates against testing and for quotas. That is just the record of this organization. The point I am trying to make is that whether or not you advocate those positions and how you will judge can be two different things. I have not seen, in your judging, this advocate that I saw or this board member. But when it came to the death penalty, you filed a memorandum with the Puerto Rican Legal Defense Fund in 1981, and I would like to submit this to the record, where you signed this memorandum and you basically said that the death penalty should not be allowed in America because it created a racial bias and it was undue burden on the perpetrator and their family. What led you to that conclusion in 1981?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. The question in 1991----
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. 1981.
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. 1981, I misspoke about the year, was an advocacy by the fund, taking a position on whether legislation by the State of New York outlawing or permitting the death penalty should be adopted by the State. I thank you for recognizing that my decisions have not shown me to be an advocate on behalf of any group. That is a different, dramatically different question than whether I follow the law. And in the one case I had as a district court judge, I followed the law completely.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. The only reason I mention this is when Alito and Roberts were before this panel, they were asked about memos they wrote in the Reagan administration, clients they represented, a lot to try to suggest that if you wrote a memo about this area of the law to your boss, Ronald Reagan, you must not be fit to judge. Well, they were able to explain the difference between being a lawyer in the Reagan administration and being a judge and, to the credit of many of my Democratic colleagues, they understood that. I am just trying to make the point that when you are an advocate, when you were on this board, the board took positions that I think are left of center and you have every right to do it. Have you ever known a low income Latina woman who was devoutly pro life?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. Have you ever known a low income Latino family who supported the death penalty?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. So the point is there are many points of view within groups based on income. You have, I think, consistently, as an advocate, took a point of view that was left of center. You have, as a judge, been generally in the mainstream. The Ricci case, you missed one of the biggest issues in the country or you took a pass. I do not know what it is. But I am going to say this, that as Senator Feinstein said, you have come a long way. You have worked very hard. You have earned the respect of Ken Starr, and I would like to put his statement in the record, and you have said some things that just bugged the hell out of me. The last question on the wise Latina woman comment. To those who may be bothered by that, what do you say?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.
Senator Lindsey Graham (SC)
Senator
(R)
Senator Graham. You know what, Judge? I agree with you. Good luck.
Senator Patrick Leahy (VT)
Chairman
(D)
Chairman Leahy. Thank you. Senator Durbin has actually responded to my so far vain request that Senators may want to pass on the basis that all questions may have been asked, not everybody has asked them. But Senator Klobuchar, yesterday, had some very serious and succinct areas that she was asking. I know time ran out and I would like to yield to Senator Klobuchar, because she may want to follow on those.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Thank you very much, Mr. Chair, and thank you again, Judge. I think they have turned the air conditioning on, so this is good. I just have two quick follow- ups following Senator Graham's question. The first is that the only death penalty case that I know of--there may be another one that you ruled on--the Heatley case, you, in fact, sustained the death penalty in that case. Is that correct?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. I sustained--well, I rejected the challenges of the defendant that the application of the death penalty to him was based on race, yes.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. Okay. Thank you. And then, just the second one, Senator Graham mentioned the issues of Justice Roberts and the difference between an advocate and a judge. And I just came across the quote that Justice Roberts gave about his work during the Reagan administration, and he said, ``I can give the commitment that I appreciate that my role as a judge is different than my role as a staff lawyer for an administration. As a judge, I have no agenda. I have a guide in the Constitution and the laws and the precedents of the Court, and those are what I would apply with an open mind after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench.'' Would you agree with that statement?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Wholeheartedly.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. All right. Thank you. There were some letters that have not yet been put on the record, and they are quite a collection of letters. I considered reading them all on the record but thought better of that. So I thought I would ask the Chair if I could put these letters on the record, and these are letters of support for you from, first of all, the National Fraternal Order of Police in support of your nomination, the Police Executive Research Forum, the National Association of Black Law Enforcement Executives, the National Latino Peace Officers Association, the New York State Law Enforcement Council, the National District Attorneys Association, the Association of Prosecuting Attorneys, the National Association of Police Organizations, the National Sheriffs Association, the Major City Chiefs Association, the Detectives Endowment Association, and then also a letter from 40 of your past colleagues in the Manhattan D.A.'s Office, former district attorney colleagues. And all of these groups have given you their support. [The letters appear as a submission for the record.] Senator Klobuchar. And I did want to note just two very brief portions from the letter. The one from the Police Executive Research Forum reads, ``Sonia Sotomayor went out of her way to stand shoulder to shoulder with those of us in public safety at a time when New York City needed strong, tough, and fair prosecutors.'' And then also, the letter from your colleagues I found very enlightening. It was much more personal. It said that, ``She began as a rookie in 1979, working long hours, prosecuting an enormous caseload of misdemeanors before judges managing overwhelming dockets. Sonia so distinguished herself in this challenging assignment that she was among the very first in her starting class to be selected to handle felonies. She prosecuted a wide variety of felony cases, including serving as co-counsel at a notorious murder trial. She developed a specialty in the investigation and prosecution of child pornography cases. Throughout all of this, she impressed us as one who was singularly determined in fighting crime and violence, for Sonia's service as a prosecutor was a way to bring order to the streets of a city she dearly loves. We are proud to have served with Sonia Sotomayor. She solemnly adheres to the rule of law and believes that it should be applied equally and fairly to all Americans.'' ``As a group,'' your former colleagues say, ``we have different worldviews and political affiliations, but our support for Sonia is entirely nonpartisan. And the fact that so many of us have remained friends with Sonia over three decades speaks well, we think, of her warmth and collegiality.'' A pretty nice letter. In reading these letters from these law enforcement groups, there was just one follow-up case that you had that I wanted to allow you to enlighten the country about, and this is one that former New York Police Detective Chris Montanino spoke about recently in an article, and he spoke about a case you worked on as district attorney. He talked about--it was a child pornography case--how he had gone to various prosecutors to try to get them interested in the case, and he could not get them interested. And I have some guesses. Some of these cases, as you know, can be very involved with a lot of evidence and sometimes computer forensics and things like that. But he was not able to interest them in taking on the case. But you were the one that was willing to take on the case, and it led to the prosecution of two perpetrators. Could you talk a little bit about that case, why you think others didn't and why you decided to take on the case?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. Well, I can't speak to why others decided to pass on the case. I can talk to you about my views at the time. The New York Court of Appeals had invalidated the New York statute on child pornography on the ground of a constitutional violation, Federal constitutional violation, that the statute did not comport with the Federal Constitution. The Supreme Court took that case directly from the court of appeals, as is its right to review all issues of Federal constitutional law, and reversed the New York Court of Appeals and reinstated the statute. My sense is because there were still so many open questions about both the legality of the statute and the question of the difficulty in proving the particular crime at issue that involved two men who worked in a change of--chain of adult bookstores in the then-Times Square area. Times Square has changed dramatically since that time. It was mostly circumstantial. We had some tapes, but their knowledge of what those tapes contained, their intent to sell and distribute child pornography involving children below a certain age--it was a difficult, difficult legal and factual case. But it was clear that it was a serious case. We're talking about the distribution of films that show children who were anywhere from 8 years old to 12 years old being explicitly sexually abused. And it seemed to me that, regardless of the outcome of the case, whether I secured the convictions or not, whether it was held up on appeal or not, that the issues it raised had to be presented in court because of the importance of the crime. And so I brought the prosecution. I had a co-counsel in that case who was second-seating me in that case, meaning she was assisting me. And the case took a while at trial because, as I said, it was circumstantial. The jury returned a verdict against both defendants. They were sentenced quite severely, and the cases held up on appeal. It was an enormously complicated case. I assisted in the appeal because it was so complicated that one of the heads of the Appeals Division of the New York County District Attorney's Office had to become involved in it. But the convictions were sustained. And so the effort resulted in a conviction of two men who were distributing films that had the vilest of sexual acts portrayed against children.
Senator Amy Klobuchar (MN)
Senator
(D)
Senator Klobuchar. And one last case I wanted to ask you about, which the Chairman had briefly mentioned in his opening, and it was a troubling case because it involved an elected official. It was U.S. v. Giordano, and this case--it happened when you were a judge, and it involved very troubling facts with the mayor of Waterbury, Connecticut, in a variety of crimes stemming from his repeated sexual abuse of a minor daughter and a niece of a prostitute. And you wrote for the majority in that case. There was actually a dissent from one of your fellow judges on the Second Circuit, and you held in part that the mayor could, in fact, be charged with the crime of violating the young girl's civil rights under color of State law. And I think--and I do not want to put words in your mouth, but the reason you were able to use that theory is that you noted how frequently the mayor reiterated to his young victims that they would be trouble with law enforcement if they didn't submit to what he wanted them to do. Could you talk about how that case fits into your overall approach to judging?
Sonia Sotomayor
Nominee
(D)
Judge Sotomayor. As I have indicated, the role of a judge is to look at Congress' words in a statute and discern its intent. And in cases that present new facts, you must take existing precedents and apply the teachings of those precedents to those new facts. In the Giordano case, there had not been another situation quite like this one. This was a mayor who, working through a woman, secured sexual acts by very young girls that were taking place in his office. And through the woman he was working with and also through his own exhortations, ``Don't tell anybody, you'll get into trouble,'' and the woman's exhortations to the child, the person he was conspiring with, that they would get in trouble with the police because the police wouldn't believe them, they would believe him because he was a mayor, the question for the court became: Is that acting under color of State law? Is he using his office to promote this illegal activity against these young girls? The majority, viewi