Opinion: Sotomayor hearings: The complete transcript -- Day 3, Part 2


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The Supreme Court of the United States

As we often do here on The Ticket, in addition to our own take on politics and events, we are providing a complete transcript of the Senate Judiciary Committee confirmation hearings on Judge Sonia Sotomayor’s nomination to the Supreme Court for those interested in reading the political participant’s own words in full.

The goal, of course, is to provide Ticket readers the opportunity to make their own judgments on the back and forth between the nominee and other witnesses and the interrogating senators -- some setting her up with softballs, others pursuing tougher lines of questioning. And if you choose, please feel invited to leave your own comments below and participate in the historic confirmation debate of the first Latina to the nation’s highest court.


Scroll up or down from here for the numerous items other Ticket writers are contributing minute by minute as the drama unfolds in Room 216 of the Hart Building on Capitol Hill in Washington.

A complete cast of committee characters is added to the bottom of this item.

Monday, we published the opening statements of each senator and Judge Sonia Sotomayor. Tuesday, we published the entire day’s transcript proceedings in five parts. The links to all those pieces are right here:

Each committee senator’s opening statement. Sotomayor’s opening statement. Part 1 of Tuesday’s transcript is available by clicking here. Part 2 of today’s transcript is available here. Part 3 is available here. Part 4 of the July 14 Sotomayor transcript is here. And Part 5 is available here.

Part 1 of Wednesday’s morning transcript, involving Sen. John Cornyn and Benjamin Cardin, is available here.

Keep checking back for new updates throughout the hearing and see the variety of items our Ticket writers are producing for you.This Part 2 completes Wednesday morning’s proceedings involving questioning by Sens. Coburn, Whitehouse and Klobuchar.

-- Andrew Malcolm

Don’t miss a single Ticket item on any political issue. Click here for Twitter alerts. Or follow us @latimestot



TOM COBURN: Thank you, Mr. Chairman. I’d ask unanimous consent to put an article from the newspaper this morning, the Washington Times.

LEAHY: Without objection, it’ll be placed in the record.

SOTOMAYOR: The law has answered a different question. It’s talked about the constitutional right of women...

COBURN: I understand.

SOTOMAYOR: ... in certain circumstances. And as I indicated, the issue becomes one of, what’s the state regulation in any particular circumstance?

COBURN: I understand. But all I’m asking is, should it have any bearing?

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 -- as a citizen. It would come to me as a....

...judge in the context of some action that someone’s taking, whether if it’s the state, the state, if it’s a private citizen being controlled by the state challenging that action. Those issues are...


COBURN: But viability is a portion of a lot of that. And a lot of the decisions have been made based on viability. If we now have viability 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’s been granted under Roe v. Wade in cases?

SOTOMAYOR: All I can say to you is what the court’s done. 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.

COBURN: All I’m asking is whether it should.


COBURN: 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? And your answer is that you can’t answer it?

SOTOMAYOR: I can’t, because that’s not a question that the court reaches out to answer. That’s 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.

COBURN: I’m reminded of one of your quotes that says you do make policy, and I won’t continue that. I’m -- 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 statutory defined in -- and we have in 50 states and most of the territories -- what is the definition of death? You -- you think that’s within the realm of the Constitution that states can do that?

SOTOMAYOR: Depends on what they’re applying that definition to, and 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’s imposing.


COBURN: But you would not deny the fact that states do have the right to set up statutes that define, to give guidance to their citizen what constitutes death?

SOTOMAYOR: As I said, it depends on -- in what context they’re attempting to do that.

COBURN: They’re doing it so they limit the liability of others with regard to that decision, which would inherently be the right of the state legislature, as I read the Constitution. You may have a different response to that. And -- which brings me back to technology again.

As recently as six months ago, we now record fetal heartbeats at 14 days post-conception. We record fetal brainwaves at 39 days post- conception. And I don’t expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues is we have this schizophrenic rule of the law where we have defined death as the absence of those, but we refuse to define life as the presence of those.

And 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. And it concerns me that we are so inaccurate or -- inaccurate is an improper term -- inconsistent in terms of our application of the logic.

You said that Roe v. Wade is settled law yesterday. And I believe it’s settled under the basis of the right to privacy, which has been there. So the -- the question I’d like to turn to next is in your ruling, the 2nd Circuit ruling on -- and I’m trying to remember the name of the case -- Maloney, the position was is that there’s not an individual fundamental right to bear arms in this country. Is that -- is that a correct understanding of that?


COBURN: OK. Please educate me, if you would.

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 a federal -- the federal government could take with respect to the possession of firearms. In that case we’re talking about handguns.


The Maloney case presented a different question. And 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 mean. To most people, the word by its dictionary term is critically important, central, fundamental. It’s 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.

COBURN: Through the 14th Amendment.

SOTOMAYOR: Through -- and others. But the -- generally. I shouldn’t say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with -- 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 government, federal government regulation.

The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it’s not, so it wasn’t fundamental in that legal doctrine sense. That was the Court’s holding.

COBURN: Did the Supreme Court say in Heller that it definitely was not? Or did they just fail to rule on it?

SOTOMAYOR: Well, they failed to rule on it. You’re right.

COBURN: There’s a...


COBURN: There’s a very big difference there.


COBURN: OK. Let me continue with that. So I sit in Oklahoma in my home, and what we have today as law in the land as you see it is I do not have a fundamental incorporated right to bear arms, as you see the law today?


SOTOMAYOR: It’s not how I see the law.

COBURN: Well, as you see the interpretation of the law today? In your opinion of what the law is today, is my statement a correct statement?

SOTOMAYOR: No, that’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 different question, and that is the question that the Supreme Court may take up. In fact, in his -- in his opinion, Justice Scalia suggested it should. But it’s not what I believe. It’s what the law has said about it.

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?

SOTOMAYOR: I can’t answer the question of incorporation other than to refer to precedent.


SOTOMAYOR: Precedent says, as the Second Circuit interpreted the Supreme Court’s precedent, that it’s not -- it’s not incorporated. It’s also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting. And by that I mean, what the Court with look at is a state regulation of your right.


SOTOMAYOR: And then determine can the state do that or not. So even once you recognize a right, you’re always considering what the state is doing to limit or expand that right and then decide is that OK constitutionally.

COBURN: You know, it’s very interesting to me. I went back and read the history of debate on the 14th Amendment. For many of you who don’t know, what generated much of the 14th Amendment was in reconstruction. Southern states were taken away the right to bear arms by freedmen -- recently freed slaves. And much of the discussion in the Congress was to restore that right of the Second Amendment through the 14th Amendment to restore an individual right that was guaranteed under the Constitution.
So one of the purposes for the 14th Amendment, the reason -- one of the reasons it came about is because those rights were being abridged in the Southern states post-Civil War.


COBURN: Let me move on. In the Constitution, we have the right to bear arms. Whether it’s incorporated or not, it’s 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 is spelled out to some degree in the Fourth Amendment, which has settled law and is fixed, and something such as the Second Amendment, which is spelled out in the Constitution, is not settled law and settled 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’s spelled out in our Constitution and 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’d 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?
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 its -- 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 applies to the federal government, Justice Scalia noted that there have been long regulation by many states on a variety of different issues related to possession of guns. And he wasn’t suggesting that all regulation was unconstitutional; he was holding in that case that D.C.’s particular regulation was illegal.

As you know, there are many states that prohibit felons from possessing guns. So does the federal government.

And 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 -- what the function of judging is about.

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?

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? And I can’t think of one. I could be wrong, but I can’t think of one.

SOTOMAYOR: Generally, as I understand, most criminal law statutes are passed by states. And I’m also trying to think if there’s any federal law that includes a self-defense provision or not. I just can’t.
What I was attempting to explain is that the issue of self- defense is usually defined in criminal statutes by the state’s laws. And I would think, although I haven’t studied the -- all of the state’s laws, I’m intimately familiar with New York.

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 a right to self-defense?

SOTOMAYOR: I -- as I said, I don’t know.

COBURN: I’m talking about your...

SOTOMAYOR: I don’t know if that legal question has been ever presented.

COBURN: I wasn’t asking about the legal question. I’m asking about your personal opinion.

SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of...


COBURN: Well, I think that’s what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense?

Do -- does the Second Amendment mean something under the 14th Amendment? Does what the Constitution -- how they take the Constitution, not how our bright legal minds but what they think is important, is it OK 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.
But I -- those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you’re going to rule, but -- and specifically what you think about, but just yes or no. Do we have that right?

SOTOMAYOR: I know it’s difficult to deal with someone as a -- like a judge who’s so sort of -- whose thinking is so cornered by law.

COBURN: I know. It’s hard.


COBURN: Kind of like a doctor. I can’t quit using doctor terms.

SOTOMAYOR: Exactly. That’s exactly right, but let me try to address what you’re saying in the context that I can, OK, which is what I have experience with, all right, which is New York criminal law, because I was a former prosecutor. And I’m talking in very broad terms.

But, under New York law, if you’re being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent 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’m not -- I don’t want anybody to misunderstand what I’m trying to say. (LAUGHTER)


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...

COBURN: You’ll have lots of ‘splainin’ to do.

SOTOMAYOR: I’d be in a lot of trouble then. But I couldn’t do that under a definition of self-defense. And so, that’s 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.

COBURN: Yes. You know...

SOTOMAYOR: Or not the...

COBURN: The problem is is we think -- we doctors think like doctors. Hard to get out of the doctor skin. Judges thing like judges. Lawyers think like lawyers.

And what American people want to see is inside and what your gut says. And part of that’s why we’re having this hearing.

I want to move to one other area. You’ve been fairly critical of Justice Scalia’s criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.

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. And that’s in treaty interpretation or in conflicts of law because it’s a different system of law. I...


COBURN: But I accepted that. I said outside of those...


COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?

SOTOMAYOR: My speech and my record on this issue is I’ve never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.

COBURN: So you stand by the -- there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?

SOTOMAYOR: Unless the statute requires 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.

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’s 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’s developed through bodies, elected bodies outside of this country, to influence what, 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 the statement versus the way you just answered?


SOTOMAYOR: There is none. If you look at my speech, you’ll see that repeatedly I pointed out both that the American legal system that 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 or the statutes.

What I pointed out to in that speech is that there’s a public misunderstanding of the word “use.” And 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 Ginsberg -- is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider.

But that’s just thinking. It’s an academic discussion when you’re talking about -- thinking about ideas than it is how most people think about the citation of foreign law in a decision. They assume that a -- if -- if there’s a citation to foreign law, that’s driving the conclusion.

In my experience, when I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion. They’re using just to point something out about a comparison between American law or foreign law, but they’re not using it in the sense of compelling a result.

COBURN: I’m not sure I agree with that on certain 8th Amendment and 14th Amendment cases.
Let me -- let me go to another area. I have just a short period of time.

Do you -- do you feel -- it’s 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’s our result rather than a politically correct result that might please other people in the world?


SOTOMAYOR: We don’t render decisions to -- we don’t render decisions to please the home crowd or any other crowd. I know that, because I’ve heard speeches by a number of justices, that in the past justices have indicated that the Supreme Court hasn’t taken many treaty cases and that maybe it should think about doing that, because we’re not participating in the discussion among countries on treaty provisions that are ambiguous.

That may be of consideration in -- 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.

COBURN: All right. Thank you. Thank you, Mr. Chairman.

LEAHY: Thank you (OFF-MIKE) Coburn. Senator Whitehouse?

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 goosebumps to think about the path that has brought you here today and, more importantly, to think about -- because it’s not about you -- more important to think what that means about America, that path.

And they said, “No, no, no, no, you can’t say ‘goosebumps.’ You have to say ‘piel de gallina.’” And so I promised them that I would, so I’m keeping that promise right now.

WHITEHOUSE: But I want to tell you that I think in the way you’ve 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 ordeal -- 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 was 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?

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.

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 wanted 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?

SOTOMAYOR: That’s correct.

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?


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 in the -- for the organization?

SOTOMAYOR: No, because most of us on the board didn’t have civil rights experience. I had actually when I was a prosecutor in -- 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.


WHITEHOUSE: And I think that’s 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’ve spent on the boards of charitable organizations never been something presented to me. So I appreciate that.

And 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?

SOTOMAYOR: I don’t believe any question was asked about my service on the Puerto Rican Legal Defense and Education Fund. It promotes the civil rights of its community.

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’re eminently familiar with the role of juries in trials.
I think you’ll 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’m 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’d 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.

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.

SOTOMAYOR: 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 in -- 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.

WHITEHOUSE: And does -- do -- does the Founder’s concern about the potential vulnerabilities, or liabilities, about the elected branch illuminate the importance of the jury system?

SOTOMAYOR: Senator, I -- as I see the jury system, I don’t know exactly -- I don’t actually -- and I’ve read the federal or state person. 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 elective 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.

WHITEHOUSE: And where the jury requirement applies to civil trials, the argument would be the same, correct?



WHITEHOUSE: Again on the question of the American system of government, how would you characterize the Founder’s view of any exercises of unilateral or unchecked power by any of the three branches of government in the overall scheme?

SOTOMAYOR: The Constitution, by its terms, sets forth the powers and limits of each branch of government. And so, to the extent that there are limits recognized in the Constitution, that is clearly 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 how -- what kind of scope it gives for a government action at issue.

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 is 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?

SOTOMAYOR: The best framework that has been set out on this question of a unilateral act by one branch or another -- but usually it’s a -- the challenge is raised when the executive is doing something, because the executive executes the law.


SOTOMAYOR: It 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, expressed 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’s 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 the Congress makes the law. The president can veto them, but he can’t make them.

He can regulate, if Congress gives him the authority to do so and within other delegated authorities or -- or -- 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’s power, as specified in the Constitution.

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 a sense of its long tradition and of the very great capability of the prosecutors who serve in it. It’s a very proud office, and I’m 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’ve 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.

And so it was a very important moment for a, at that point, 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 colleague, Senator Klobuchar, and many others around this country, Senator -- our chairman, Senator Leahy, have made that choice over the years, and it’s 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’d 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 it 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 cybersecurity, cyber-attacks, cyber- terrorism, and take advantage of what technology we can bring to bear in the continued struggle against terrorist extremists.


WHITEHOUSE: So I’d 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?

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.

WHITEHOUSE: Yes, which is a constant. That stayed the same.

SOTOMAYOR: That (inaudible) the structure. In -- not so long ago, the Supreme Court dealt with a technologically new situation, which was whether an individual had a right to expect the 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.

WHITEHOUSE: The (inaudible) case.

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 a -- 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 in the -- 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 address 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.

SOTOMAYOR: You asked, 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’re 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 database, or use it in another situation?

So much of that gets controlled by the issues you’re 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 courts itself have been commanded by Congress to look at certain privacy information of individuals and guard it from public disclosure in the databases you’re talking about.


So we’ve been told, “Don’t go using somebody’s Social Security number and putting it in a database.” That’s a part of a public document, but we’ve been told, “Don’t do that,” and there’s 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 with 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 -- what the Constitution may or may not say on that question, depending on the nature of the claim before the court.

WHITEHOUSE: Your honor, I thank you. I wish you well.

SOTOMAYOR: Thank you.

WHITEHOUSE: And I congratulate you on your appearance before this committee so far.

SOTOMAYOR: Thank you, sir.

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 -- to this committee. Judge, we’re -- and I also appreciate you taking less than your time. I hope maybe you’ll be setting a standard as we go forward. We will take a 15-minute break.

SOTOMAYOR: Thank you.


LEAHY: There’s been an interest expressed by -- I was going to say by all of the senators, but most senators have left the hearing room, but don’t think that doesn’t mean that there’s not going to be more questions, Judge, because there will be this round and another round.

And if it’s the case of all of the questions having been asked, but not everybody has asked all of the questions, some will come back and ask them again.

What we’re going to do -- we’re going to have Senator Klobuchar and Senator Kaufman will ask questions. We’ll then break for lunch. We’ll then have Senator Specter and Senator Franken ask -- ask questions. And I’m saying this for the purposes also of those who have to -- have to schedule and plan.


We’ll take -- we’ll 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, and I yield to you.

KLOBUCHAR: Thank you very much, Mr. Chairman. Good afternoon, Judge. Thank you again for all of your patience and your thoughtful answers. I really -- everyone has been focusing on you sitting there. I’ve 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’d like to say. She has... (LAUGHTER) She has plenty of stories that she would like to share about you. I thought I might miss my questioning opportunity.

SOTOMAYOR: Senator, don’t give her the chance.

KLOBUCHAR: But I was thinking she is much more...

LEAHY: The chairman is tempted, let me tell you.

KLOBUCHAR: 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?” (LAUGHTER) My favorite one, the recent one was, “I watched Senator Feinstein, and she was brilliant. What are you going to do?” (LAUGHTER) OK. So let’s -- let’s move on. I had some...

SOTOMAYOR: We should introduce our mothers, OK?

KLOBUCHAR: Yes, 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 am -- personally agree with the Heller case.

But I remember that yesterday 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 incorporate against the states. Is that right?

SOTOMAYOR: Yes, Senator. I take every case, case by case, and my mind is always open, and I make no prejudgments as to conclusions.


KLOBUCHAR: OK. And then a follow-up question that Senator Whitehouse was asking you about the Puerto Rican legal defense fund. You were on that board. And 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?


KLOBUCHAR: OK. And then, finally, just one point. We’ve heard so much about your speech in which you used the phrase, “Wise Latina,” and I’m 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. And no senator at that time -- do you remember them asking you about it or making any issue about it at the time?


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. And 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’re 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?

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 at 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 had -- 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 of parental participation in ensuring that that happens in our society.

KLOBUCHAR: It also reminded me of that comment about -- some of the comments you’ve made about the limited role 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?

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 though the punishment should have been, because that was set in law. Sentences are set by Congress, which -- 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.

KLOBUCHAR: Yes. I think Justice Ginsburg made a similar comment in an article this weekend in an interview she did. And 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’s 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 -- you don’t 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’s guilty, but you realize you don’t have enough evidence to charge the case.

Do you want to talk about any -- maybe a specific example of that in your own career as a prosecutor or what goes into your thinking on charging?

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 -- 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, “No, my job as a prosecutor is to 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. Morgenthau, 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. Morgenthau, 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 them the top charge. And I was actually known in my office for doing that often, but that’s because I determined it was appropriate often.

SOTOMAYOR: But, periodically, I would look at the quality of evidence and say, “There’s just not enough.” I had one case with a 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.

And 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 -- 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 yet 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 convictions. 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.

KLOBUCHAR: Thank you. That was very well said. And I want take that pragmatic experience that you’ve 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.

And 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. And it 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?”

And at first, I didn’t even know what he was talking about. I said, “What?” He said, “Are you going to vote for that woman?” And I said, “Well, I think so, but I want to ask her some questions.” And he said, “Well, aren’t you worried that her emotions get in front of the law?”


And I thought if anyone heard what the cases -- the TWA case, where you decided against -- had to make a decision from some very sympathetic victims, the 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.

KLOBUCHAR: But another piece of this that’s a very different part of it is the practical experiences that you’ve had, the pragmatic work that you’ve done. And I just wanted to go through some of the cases that you’ve had, the criminal cases that you’ve 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, or -- but helping you to maybe ferret through the facts, as you’ve been known to be someone that really focused on the facts.

One of them is this United States v. Falso case, and this was a case where child pornography was found in a guy’s home and on his computer. And you ruled that, although the police officers didn’t have probable cause for the search warrant, that the evidence obtained in the search, the child pornography on the computer, should still be considered under the good faith exception to the exclusionary rule, because the judge had not been knowingly misled. And in other words, it was a mistake.

And I -- could you talk about that case and how perhaps having that kind of experience on the front line helped you to reach that decision? Because there was someone, I believe, that dissented in that case.

SOTOMAYOR: That case presented a very complicated question in Second Circuit law. There had been two cases addressing how much information a warrant had 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 discussions 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 look 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 examine the facts before my case, looking at -- that’s the information that the police have before them and considering whether, in light of existing Second Circuit law as it addressed this issue, had the police actually violated the Constitution, but -- I hope I can continue.

LEAHY: You can continue. That was not a comment from above, (inaudible). I have certain powers as chairman, but not that much.

SOTOMAYOR: (Inaudible) whether they should get a warrant or not. And I -- 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, that -- and the law, that that was the way the law -- the result the law required.

SOTOMAYOR: 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 it -- what doctrine it underlays is that you don’t want the police violating your constitutional rights without a good-faith basis, without probable cause.

And that’s why you have a judge make that determination. That’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 acts 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.

KLOBUCHAR: And I think you made a similar finding with different underlying facts in United States v. Santos (ph), 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 hadn’t been a warrant out there, it’d been removed -- that that was a clerical error and you could still -- they could still use the cocaine.

SOTOMAYOR: Well, in fact, it’s a holding the Supreme Court -- an issue the Supreme Court addressed just this term...


SOTOMAYOR: ... and came out -- well, I came out the way the Supreme Court did on that.

KLOBUCHAR: The hearing (ph) case.


KLOBUCHAR: Yes, very good. The -- the -- the piece about -- the case in the Supreme Court that’s most interesting to me on terms of that issue we’ve 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 doesn’t divide ideologically. In fact, both Justice Breyer and Justice Roberts were in the dissent that Justice Kennedy wrote. It was a 5-4 decision.

And 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 test showed that was in the drugs and things like that.


And I just wondered what your reaction was to that case, how you would have analyzed it.
I -- I agree with the dissent in that case. I think that this could really -- it opens up 90 years of precedent. I think it’s unreasonable for what we should expect of the criminal justice system. And there’s been some pretty strong language in the dissent of the fear that this will create some very difficulties for prosecutors to follow through on their cases and get the evidence in.

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. And 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 its holding now is its holding, and that’s what guides the court in the future on similar issues to the extent there can be some.

SOTOMAYOR: 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.

KLOBUCHAR: I will say, I was -- there with an interesting story a few weeks ago about -- just that you’ve been tenacious about getting to the bottom of the 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 -- in the -- in the halls of criticisms.

And, 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 are 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’s that Vermont ferry case that you did or other ones, you really did delve into the facts. You want to talk a little bit about why that’s important?

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 -- 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 -- 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 may be that background that people are noticing and noticing where we picked up that habit.

KLOBUCHAR: Very good. The -- and the report issued last week, the Transactional Records Access Clearinghouse -- I didn’t 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 greater than six months to 48 percent of convicted criminals in white-collar cases, while your colleagues gave out sentences of six months or more to just 36 percent. You were also twice as likely as your colleagues to send white-collar criminals to two years or more in prison.

I 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, and you don’t maybe -- 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 shouldn’t go to jail, including the former Miss America.

KLOBUCHAR: And so we -- 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?

SOTOMAYOR: It should be remembered that, when I was a district court judge, the sentencing laws were different than they had 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 -- well, 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 their impact on the victims. Those are factors that one should consider.


And so many of the white collar sentences that you were talking about were focused on looking at the guidelines and what the guidelines 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. It’s 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 the -- 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 the courts could consider in fashioning a sentence.

(Inaudible) crime, and to the extent that you’re protecting the interests of society, you take your cues from the statute Congress gives and to -- 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 interest that society sought to protect, then I applied that evenly -- even-handedly to all cases.

And 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.

KLOBUCHAR: And what do you think about the change now that they are guidelines, and -- suggested guidelines and not mandatory?

SOTOMAYOR: As you know, there’s been great number of cases in the Supreme Court. The Booker Fan Fan case determined they were guidelines. My own personal experience with that -- with -- 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.


KLOBUCHAR: Just one last question, Mr. Chairman. All these guys have been asking about your baseball case and they’ve been talking about umpires and judges as umpires. Did you have a chance to watch the All-Star game last night because most of American didn’t watch the replay of your hearing? (LAUGHTER)

SOTOMAYOR: It might have been watching it. I haven’t seen television...(LAUGHTER)
... for a very long time. But I will admit that I turned it on for a little while.

KLOBUCHAR: OK. Because otherwise I will say, and maybe you didn’t 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. (LAUGHTER) I just want to point that out. All right. Thanks very much, Judge.

SOTOMAYOR: That’s called teamwork.

KLOBUCHAR: All right. Thank you.

LEAHY: I’m resisting any Red Sox comments. (LAUGHTER)

SOTOMAYOR: (Inaudible) baseball (inaudible) not to hold that against me, OK?

LEAHY: I’m not going to hold that against you. I did -- I did see a photograph of the president throwing out the ball. I know the photographer well. And I thought he did a very, very good job -- or two pictures.

Senator Kaufman is probably as knowledgeable as anybody on this committee, having run it for years before becoming a senator. I said before, judge, that senators are merely constitutional requirements or impediments to the staff. We know who really runs the place. And, Senator Kaufman, it’s over to you, sir.

KAUFMAN: Thank you, Mr. Chairman.

LEAHY: Oh, and I should make one announcement. You’ve been hearing from banging going on here. Apparently, the air conditioning went out which will probably come as welcome news to the -- some of the press who are freezing in the skyboxes up here. But it’s not welcome news here with the crowd going on. And they are working on it, but I’m -- we’re going to keep going as long as we can.
Senator Kaufman?

KAUFMAN: Thank you, Mr. Chairman. I, you know, one of the toughest assignments. I’ve been here long enough to know the toughest assignment is to stand between the audience and lunch. So I’m going to try bear up better that. Good afternoon.

SOTOMAYOR: Good afternoon, Senator. It’s good to be talking to you again.

KAUFMAN: It’s good to see you. And I want to kind of take a different tack. I think Senator Whitehouse and Senator Klobuchar talked a lot about your time as a prosecutor. I’d like to move on to kind of your time as a commercial litigator. You were a prosecutor for five years, then you decided to go into commercial practice.


And I just -- what kind of where the thoughts behind you deciding when you left the D.A.’s office to go into commercial practice?

SOTOMAYOR: Well, actually, it’s a continuation of what I explained to Senator Klobuchar. I had, in the D.A.’s office, realized that in the criminal law system, we couldn’t 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.

SOTOMAYOR: And 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 some of the -- 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 that -- 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 activities were motivated in large measure because of my growing belief that economic opportunities for people were the way to address many of the -- of the -- of the growth needs of communities.


KAUFMAN: Can you tell us a little bit about your commercial practice? What actually were you dealing with as a litigator?

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 D.A.’s office, I don’t 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 much smaller firm where I actually, until I became a partner, tended to work directly with the partner and would often counsel businesses. And I did a wide variety of commercial issues.

I was involved in grain commodity trading, people buying homegrown U.S. grains of all kinds, wheat, oat -- you can name them all -- and including orange peels as feed for animals, OK, and the contracts that they were involved in, in doing those trades.

Our firm represented a very impressive list of clients, including Ferrari, the car manufacturer. And I did a great deal of their work as it related to their dealer relationships and to their customer relationships.


And so I involved myself in those commercial transactions, which were different, 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.


SOTOMAYOR: And then the fashion designer -- and -- and I think there are many people who know how famous that fashion house design is -- had trademark questions. And 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 -- and introduced me to the intellectual property area of law.

SOTOMAYOR: 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.

KAUFMAN: And how did that practice help you on the district court and then on the court of appeals?

SOTOMAYOR: Actually, one of the lessons I learned from my commercial practice, I learned in the context, first, of my grain commodity training. But in my work, as it related to all commercial disputes, there were 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 the settlement, I would draft up a settlement agreement between the parties. And quite often it involved creating an ongoing new business relationship; or a temporary continuation of a business relationship so they could wind down.

And I would draft up the agreement like a litigator, like the judge I try to be. “Say it in simple words”, OK?

And I would give it to my corporate partners, and I shouldn’t say it this way. And I would get back stuff that sometimes I would look at and say, “What does this gobbledegook mean?”
And they would laugh at me and say, “It has meaning. This is how the courts have interpreted. It’s very important to the relationship of the parties that they know what the expectations are in law about their relationship”

And then I understood why it was important to phrase things in certain ways. And it made me very respectful about the importance of predictability in terms of courts’ interpretation of business terms, because that was very, very critical to organizing business relationships in our country.

KAUFMAN: One of the jobs of district court judges is kind of to avoid trial, kind of get people to settle before they get to trial. How did your commercial experience help you deal with that?

SOTOMAYOR: It’s interesting because I remember one case with, and I can’t give you details because it 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, and I said, “There’s some novel theories here. I really think you can win, but there’s 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’s going to cost you...” It was millions of dollars that I estimated.


The client went to another lawyer who gave them a different evaluation, and they went with that other lawyer. My firm lost all that income, but the client came back afterwards, because 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 it is, business has a different function than courts. Business function is to do business, to do their work, to sell products, to order relationships. And litigation are different.

SOTOMAYOR: As a judge, when I was a district court judge, most of my focus was on (inaudible) 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’m -- I’m very cognizant of the court -- of the costs of litigation and look at what parties are doing in the courts below with that -- bearing that in mind.

KAUFMAN: You know, you talked about your experience as a circuit court judge. How did your being a district court judge help you when you became a circuit court 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 in our court, it’s blessed by having judges with a wide variety of circumstances. And 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, and the parties were arguing something and the district court didn’t address it, my first question to my law clerks were, “You know, go back to the record and tell me why not.”

Most judges address arguments that people are raising. And it would -- 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?”

And I could see some of the antennas going up for those colleagues who hadn’t had that experience, saying, “I hadn’t thought of that. Let me go back to look, in fact, if that was the case,” because there are all sorts of doctrines that don’t 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.

KAUFMAN: I’m really glad you have this commercial experience, because, as I said in my opening statement, I’m concerned about business cases. I think they’re really important. And I’m also concerned that the current court -- Supreme Court too often seems to disregard settled law and congressional policy choices when it comes to business cases.

And I think, in light of our economic crisis, Congress probably -- not probably -- will definitely pass a financial regulatory reform package. And I’d just like to make sure that the system is not undermined by the court, because they just don’t -- they have a different view of what government regulation is all about. Do you believe the Congress has the constitutional authority to regulate financial markets?

SOTOMAYOR: You’ve just raised the very first question that will come up when Congress passes an act. Because I can assure you, knowing every time Congress passes an act, there’s a challenge by somebody.



SOTOMAYOR: As soon as it’s applied to someone and in a way that they don’t like, they’re going to come into court. So I -- I can’t answer that question.

KAUFMAN: I’m sympathetic to that. And I really should have phrased it -- I mean, just in general, not with regard to any case, anything at all, about Congress’s constitutional authority to regulate financial markets?

SOTOMAYOR: Well, I can’t answer that question, because it invites an answer to a potential challenge. What I can say to you is that Congress has certain constitutional powers. One of them is to -- to pass laws affecting interstate commerce.

And so the question will be the nature of whatever statute Congress passes, what facts it relies upon, and the remedy that it -- that it institutes. And so each -- the question would depend on the nature of the statute and what it’s doing.

KAUFMAN: But Congress does basically have the ability to regulate markets?

SOTOMAYOR: Well, it has the ability to -- the Constitution term are to make laws that involve commerce between the states. But those are the words and, generally, that’s been interpreted to mean pass laws that affect commercial interstate transactions.

KAUFMAN: To get to a more broader question about laws enacted by Congress, what’s your -- what should a judge’s role be in viewing the wisdom of the statute play in interrupting it? When Congress passes a law, what’s basically, whether the judge thinks it’s a good law or a bad law, the wisdom in passing it, what role does that play in the law?


SOTOMAYOR: I’m trying to think if there’s any situation in which a judge who have occasion to judge in that way. Policy making -- making of laws is up to Congress. A judge’s personal views as whether that 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’s done it. But policy choices are Congress’ choices. In all areas, deference has to be given to that choice.

KAUFMAN: How about regulations adopted by regulatory agencies?

SOTOMAYOR: Deference has been given in that area by the courts as well. Generally, one look 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 titled to deference in different factual situations.

KAUFMAN: Can I talk -- I’m going to talk a few minutes about securities law. What’s the -- I mean, what kind of -- what characterizes securities law docket in the Southern District of New York in the Second Circuit?

SOTOMAYOR: Oh, everything. We are -- we are the home of New York City. Our jurisdiction is -- I’m sure that another state is going to complain, but we are the business capital of the world. That’s how it’s been described by others.

And so we deal with every variant of securities law as one could imagine from investment questions to misleading statements to investors to all -- 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’ll perk up to the circuit court. But if you have a securities law, we’ll likely eventually hear the arguments.


KAUFMAN: And this will be valuable when you’re on the court -- when -- if you’re confirmed.

SOTOMAYOR: I presume so because it has been a part of my work both as a district court and a circuit court judge.

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.

In reaching that sort of decision, how do you reconcile the rationale for immunity with the fact that deprives plaintiffs of a remedy in situations where they’ve been wronged, as you said, egregiously wronged?

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. And the court’s ruling did not affect their ability to take action against those individuals. And clearly, that’s always difficult in some situations and the individual has been arrested, et cetera.


But there 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 government or quasi-governmental agencies. And what they can do depends on the exercise of discretion under the laws as they exist at the time.
And so the immunity doctrine wasn’t looking at the issue of how to recompense the individuals. It was looking at the functions -- quasi-functions of government. So there’s a disparate (ph) perspective that was given to the judges in that case.

KAUFMAN: In another securities case that interests me, Press v. Quick & Reilly, in that case, you and your fellow panel members all 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?

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, expressed commercial commands, a judge can’t substitute their own judgment of what policies should be or regulations should be, and -- but is commanded to give deference.


There are obviously in every situation a set of exceptions to when you don’t, 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’s intent. Yesterday, I believe one of the other senators asked me about the Riverkeeper case.


SOTOMAYOR: And the Supreme Court came to a different view of -- of what the words Congress used meant. But the point is that the rule of courts is not to substitute their own judgments; it’s to apply the principles of law in accordance with the acts that agencies are doing.

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 to private rights of action -- that is, cases brought by investors, rather than the government -- have in enforcing our securities laws?

SOTOMAYOR: The right Congress has given, presumably because Congress has made a policy choice, that is a way to ensure that individuals’ injuries are remedied. That is -- it’s a part of many of our securities laws and our antitrust laws.

Government doesn’t have unlimited resources to pursue all individual injuries. And so, in some situations, Congress makes a choice to grant the private cause of action and some it doesn’t. That’s a legislative choice.


KAUFMAN: Turning to the antitrust law, what was your experience in antitrust law?


KAUFMAN: Both in practice and a judge, both of them.

SOTOMAYOR: I’m trying to think -- I don’t remember having direct experience in antitrust law when I was in private practice. I don’t think I did. And so I had very little -- I’m trying to think of any of my cases on the district court, and Major League Baseball strike was one of them, and it’s the one that I am -- that I can think of.

I had antitrust 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’d give me a chance to look at my district court decisions again to see if -- and what other cases in the antitrust area I may have ruled upon on the district court, I can get back to you, Senator...


SOTOMAYOR: ... either at the next round or in a written question. I just don’t -- on the circuit court it’s different. I have participated directly in writing opinions and joining panels on opinions, and so I’ve had at least two, if not three or four or five of those cases.

KAUFMAN: Yesterday, Senator Kohl asked about the Leegin case, which is striking in that it overturned 96 years of precedent and effectively legalized private agreements to prevent discount retailing. You said that both the majority and the dissent in that case had a reason to question the economic theory underlying the original precedent. I don’t want you to contact -- comment on Leegin in particular. But what’s the role of the court in using economic theory to interpret acts of Congress?

SOTOMAYOR: Well, you don’t 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 antitrust laws, to a factual question before it. And 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.


SOTOMAYOR: 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,” and the court, in reconsidering that issue in the Leegin case, said, “Well, there’s been enough presented in the courts below to show that maybe it’s not in -- some activities anti- competitive. And so we’re not going to subject it to an absolute bar; we’re going to subject it to a review under rule of reason.”

That’s why I said it’s 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 antitrust laws. What the Court was trying to do was it figure out how it would apply that law to particular set of facts before it.

KAUFMAN: In Illinois, Brick, a Supreme Court case dealing with antitrust, one of the classic cases, Justice White wrote, and I quote, “in considering 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?

SOTOMAYOR: I think that that, as you may know, the doctrine of stare decisis is not dependent on one fact.


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 what premised may be wrong. And there’s 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.

KAUFMAN: You know, I’m concerned because recently there’s been erosion in antitrust both in the courts and in enforcement. And it’s made it much easier for financial institutions to become so massive they’re, in effect, too big to fail. Should a court sitting in antitrust consider the systemic risks to the marketplace that is injected by a financial institution being too big to fail?

SOTOMAYOR: Well, the purpose is the -- of the antitrust 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 the particular context and a challenge to some approach the court has used in this area. I, obviously, can’t say absolutely yes...

KAUFMAN: No, no.

SOTOMAYOR: ... in a hypothetical. But obviously the court is always looking at what activity is claimed to be illegal under the antitrust laws and what effect it has to anti-competitive behavior. And the question frequently in antitrust is, is a particular area subject to per se barring (ph) or is it subject to the rule of reason? And -- and the two have different approaches to -- to the question.

KAUFMAN: Thank you, Judge. Thank you, Mr. Chairman.

LEAHY: Thank you very much, Senator Kaufman. And as I mentioned before, it’s almost 1 o’clock. We will take a break until 2 o’clock. At 2 o’clock, 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 questions -- if there are senators who have further questions, they’ll be recognized not to exceed 20 minutes each.


I would hope that if the questions 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, and that’s what we’ll do.

And we’ll stand in recess until then. (More to come) Part 3 of Day 3 is now available here.