Opinion: Sotomayor hearings: The complete transcript -- Day 3, Part 4 of 4


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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 participants’ 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 over the nomination 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 Senate Office 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 is available here. Part 2 of Wednesday’s testimony is available here. Part 3 of Wednesday is available here. This is the fourth and final part of Wednesday’s hearing transcript.

Keep checking back for new updates throughout the hearing and see the variety of items our Ticket writers are producing for you.


— Andrew Malcolm

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Continuation of the Senate Judiciary Committee confirmation hearing on Judge Sonia Sotomayor:

SPECTER (cont’d): And Bush v. Gore was probably the biggest -- one of the biggest cases, arguably, the biggest case. More than 100 million people voted in that election, and the presidency was decided by one vote. And Justice Scalia had this to say about irreparable harm: “The counting of votes that are of questionable legality does, in my view, threaten irreparable harm to” -- referring to President Bush or candidate Bush -- “and to the country by casting a cloud upon what he claims to be the legitimacy of the election.

“Permitting the court to proceed on that erroneous basis will prevent an account -- an accurate recount from being conducted on a proper basis later.”

Hard to understand what recount there was going to be later. I wrote about it at the time, saying....

...that I thought it was an atrocious accounting of -- of irreparable harm, hard to calculate -- hard to calculate that.
And my question, Judge Sotomayor: Shouldn’t the American people have access to what is happening in the Supreme Court, try to understand it, to have access to what the judges do by way of their workload, by way of their activities when they adjourn in June and reconvene in October, this year in September? Wouldn’t it be more appropriate in a democracy to let the people take a look inside the court through television?

The Supreme Court said in the Richmond Newspapers case decades ago that it wasn’t just the accused that had a right to a public trial; it was the press and the public, as well. And now it’s more than newspapers. Television is really paramount. Why not televise the court?

SOTOMAYOR: As you know, when there have been options for me to participate in cameras in the courtroom, I have. And as I said to you when we met, Senator, I will certainly relay those positive experiences, if I become fortunate enough to -- to be there to discuss it with my colleagues, and that question is an important one, obviously.

There’s legislation being considered both by -- or has been considered by Congress at various times. And there’s much discussion between the branches on that issue.

It is an ongoing dialogue. It is important to remember that the court, because of this issue, has over time made public the transcripts of its hearings quicker and quicker. If I’m accurate now, it used to take a long time for them to make those transcripts available, and now they do it before the end of the day. It’s an ongoing process of discussion.

SPECTER: Thank you, Judge Sotomayor. Thank you, Mr. Chairman.

LEAHY: (OFF-MIKE) Senator Specter. And in the last of our -- of this round of questioning will be Senator Franken, the newest member of the committee. Senator, I didn’t officially welcome you the other day as I should have when we have new members, but welcome -- welcome to the committee. I offer you congratulations and condolences at the same time. (LAUGHTER)

FRANKEN: Well, I’ll take the congratulations.

LEAHY: You come in with one of the -- OK, well, that was most heartfelt. I’m glad you’re here. Please go ahead.

FRANKEN: Thank you, Mr. Chairman. And thank you, Judge Sotomayor, for sitting here so patiently and for all your thoughtful answers throughout the hearing. Before lunch, our senior senator from Minnesota, Amy Klobuchar, asked you why you became a prosecutor, and you mentioned “Perry Mason.” I was a big fan of “Perry Mason.” I watched “Perry Mason” every week with my dad and my mom and my brother. And we’d watch the clock. And when -- we knew when it was two minutes to the half-hour that the real murder would stand up and confess. It was a great show.

And it amazes me that you wanted to become a prosecutor based on that show because, in “Perry Mason,” the prosecutor, Berger, lost every week, with one exception that we’ll get to later.

But I think that says something about your determination to defy the odds. And while you were watching “Perry Mason” in the South Bronx with your mom and your brother, and I was watching “Perry Mason” in suburban Minneapolis with my folks and my brother, and here we are today. And I’m asking you questions because you have been nominated to be a justice of the United States Supreme Court. I think that’s pretty cool.

As I said in my opening statement, I see these proceedings both as a way to take a judgment of you and of any nominee suitability for the high court, but also as a way for Americans to learn about the court and its impact on their lives.

Right now, people are getting more and more of their information on the Internet. We’re getting newspapers and television and blogs and radio. Americans are getting all of it online.

It plays a central role in our democracy by allowing anyone with a computer connected to the Internet to publish their ideas, their thoughts, their opinions, and reach a worldwide audience of hundreds of millions of people in seconds. This is free speech, and this is essential to our democracy and to democracy. We saw this in Iran not long ago. Now, Judge, you’re familiar with the Supreme Court’s 2005 Brand X decision, are you?


FRANKEN: OK. Well, then you know that Brand X deregulated Internet access services, allowing service providers to act as gatekeepers to the Internet, even though the Internet was originally government funded and built on the notion of common carriage and openness. In fact, we’ve already seen examples of these companies blocking access to the Web and discriminating on certain uses of the Internet. This trend threatens to undermine the greatest engine of free speech and commerce since the printing press.

Let’s say you’re living in Duluth, Minnesota, and you only have one Internet service provider. It’s a big mega-corporation, and not only are they the only Internet service provider, but they’re also a content provider. They provide -- they own newspapers. They own TV networks. They -- or network. They have a movie studio.

They decide to speed up their own content and slow down other content. The Brand X decision by the Supreme Court allows them to do this. And this isn’t just Duluth. It’s Moorhead, Minnesota, it’s Rochester, Minnesota, it’s Youngstown, Ohio. It’s Denver. It’s San Francisco. And, yes, it’s New York.

This frightening. It’s frightening to me and to millions of my constituents or lots of my constituents.
Internet connections use public resources; the public airwaves, the public rights of way. Doesn’t the American public have a compelling First Amendment interest in ensuring that this can’t happen and that the Internet stays open and accessible? In other words, that the Internet stays the Internet?

SOTOMAYOR: Many describe the telephone as a revolutionary invention, and it did change our country dramatically. So did television. And its regulation of television and the rules that would apply to it were considered by Congress, and those regulations have -- because Congress is the policy chooser on how items related to interstate commerce and communications operate.

And that issue was reviewed by the courts in the context of the policy choices Congress made. There is no question in my mind as a citizen that the Internet has revolutionized communications in the United States. And there’s no question that access to that is a question that society is -- that our citizens as well as yourself are concerned about.

But the role of the court is never to make the policy. It’s to wait until Congress acts and then determine what Congress has done in its constitutionality in light of that ruling. Brand X, as I understood it, was a question of which government agency would regulate those providers.

And the court, looking at Congress’ legislation in these two areas, determined that it thought it fit in one box not the other, one agency instead of another.

FRANKEN: Is this Title 1 and Title 2? Or as I understand it, Title 2 is very -- is subject to a lot of regulation and Title 1 isn’t.

SOTOMAYOR: Exactly. But the question was not so much stronger regulation or not stronger regulation. It was which set of regulations, given Congress’ choice, controlled. Obviously, Congress may think that the regulations the court has, in its holding interpreting Congress’ intent and that Congress thinks the court got to wrong, we’re talking about statutory interpretation and Congress’ ability to alter the court’s understanding by amending the statute if it chooses.

This is not to say that I minimize the concerns you express. Access to Internet, given its importance in everything today -- most businesses depend on it. Most individuals find their information. The children in my life virtually live on it now.

And so its importance implicates a lot of different questions: freedom of speech, freedom with respect to property rights, government regulation. There’s just so many issues that get implicated by the Internet that what the court can do is not choose the policy. It just has to go by interpreting each statute and trying to figure out what Congress intends.

FRANKEN: I understand that. But isn’t there a compelling First Amendment right here for people? No matter what Congress does -- and I would urge my colleagues to take this up and write legislation that I would like -- but isn’t there a compelling, overriding First Amendment right here for Americans to have access to the Internet?

SOTOMAYOR: Rights by a court are not looked at as overriding in the sense that I think a citizen and not -- or a citizen would think about it. Should this go first or should a competing right go second?
Rights are rights. And what the court looks at is how Congress balanced those rights in a particular situation and then judges whether that balance is within constitutional boundaries.

Calling one more compelling than the other suggests that there’s sort of, you know, property interests are less important than First Amendment interests. That’s not the comparison a court makes. The comparison a court makes starts with what balance did Congress choose first? And then we’ll look at that and see if it’s constitutional.

FRANKEN: OK, so we’ve got some work to do on this. I want to get into judicial activism. I brought this up in my opening statement. As I see it, there’s kind of an impoverishment of our political discourse when it comes to the judiciary. I’m talking in politics.

When candidates or officeholders talk about the -- what kind of judge they want, it’s very often just reduced to, “I don’t want an activist judge. I don’t want a judge that’s going to legislate.” And that’s sort of it. That’s it. It’s a 30-second sound bite.

As I and a couple of other senators mentioned during our opening statements, judicial activism has become a codeword for judges that you just -- you don’t agree with. Judge, what is your definition of judicial activism?

SOTOMAYOR: It’s not a term I use. I don’t use the term, because I don’t describe the work that judges do in that way. I assume the good faith of judges in their approach to the law, which is that each one of us is attempting to interpret the law according to principles of statutory construction and other guiding legal principles, and to come in good faith to an outcome that we believe is directed by law.

When I say we believe, hopefully we all go through the process of reasoning it out and coming to a conclusion in accordance with the principles of law.

I think you’re right that one of the problems with this process is that people think of activism as the wrong conclusion in light of policy. But hopefully judges -- and I know that I don’t approach judging in this way at all -- are not imposing policy choices in -- or their views of the world or their views of how things should be done. That would be judicial activism, in my sense, if a judge was doing something improper like that.

But I don’t use that word because that’s something different than what I consider to be the process of judging, which is each judge coming to each situation trying to figure out what the law means, the applying it to the particular fact before that judge.

FRANKEN: OK, you don’t use that -- that word or that phrase. But in political discourse about the role of the judiciary, that’s almost the only phrase that’s ever used. And I think that there has been an ominous increase in what I consider judicial activism of late. And I want to ask you about a few cases and see if you can shed some light on this for -- for us and for the people watching at home or in the office.

I want to talk about Northwest Austin utility district number one, the holder, the recent Voting Rights Act case. And Senator Cardin mentioned it, but he -- he didn’t get out his pocket Constitution, as I -- I am. The 15th Amendment was passed after the Civil War. It specifically gave Congress the authority to pass laws to protect all citizens’ right to vote.

And it said, Section 1, Amendment number 15, section one, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.” Section two -- this one’s important. “The Congress shall have power to enforce this article by appropriate legislation,” -- the Congress.

Well, Congress used that power to -- the power vested in them under Section two -- when it passed the Voting Rights Act of 1965. Now, the Voting Rights Act has an especially strong provision, section five, that requires states with a history of discrimination to get preapproval from the Justice Department on any changes that they make in their voting regulations.

Congress has reauthorized this four times as recently as -- the last time was 2006. And the Senate supported it by a vote of 98 to zero. Every single senator from the state covered by Section 5 voted to reauthorize it. So now it’s 2009, and we have this case, the Northwest Austin Utility district number one. And Justice Thomas votes to hold Section 5 unconstitutional. He said it went beyond the mandate of the 15th Amendment because it wasn’t necessary any more. That’s what he said.

Now, when I read the 15th Amendment, it doesn’t say -- it doesn’t contain any limits on Congress’ power. It just says that we have it. It doesn’t say if necessary the Congress shall have power to enforce this article. It just says that we have the power.

So it is my understanding that the 15th Amendment contains a very strong, very explicit and unambiguous grant of power to the Congress. And because of that, the courts should pay greater deference to it. And my question is is that your view?

SOTOMAYOR: As you know, some of the justices in that recent decision expressed the view that the court should take up the constitutionality of the Voting Rights Act and review of its continuing necessity. Justice Thomas expressed his view.

That very question, given the decision and the fact that it left that issue open is a very clear indication that that’s a question that the courts are going to be addressing, if not immediately the Supreme Court, certainly the lower courts. And so expressing a view -- agreeing with one person in that decision or another, would suggest that I have made a prejudgment on this question.

FRANKEN: So that means you’re not going to tell us? (LAUGHTER) I didn’t mean to finish your sentence.

SOTOMAYOR: No, no, no, no. All I can say to you is I have one decision, among many, but one decision on the Voting Rights Act (inaudible) the recent reauthorization by Congress but a prior amendment where I suggested that these issues needed -- issues of changes in the Voting Rights Act should be left to Congress in the first instance.

My jurisprudence shows the degree to which I give deference to Congress’ findings whether in a particular situation that compel or doesn’t or leads to a particular result is not something that I can opine on because, particularly, the issue you’re addressing right now is likely to be considered by the courts.

The ABA rule says no judge should make comments on the merits of any pending or impending case. And this clearly would be an impending case.

FRANKEN: OK. It’s fair to say, though, in your own decision, you gave deference to Congress just like you answered by neutrality thing saying it’s up to Congress.


FRANKEN: It feels like this is very explicitly up to Congress.

SOTOMAYOR: I gave deference to the exact language that Congress had used in the Voting Rights Act and how it applied to a challenge in that case. FRANKEN: OK. Now, voting to overturn federal legislation, to me at least, seems to be one definition of what people understand as judicial activism. But I want to talk about some cases that I’ve seen that I think showed judicial activism functioning on a more pernicious level. First, let’s take a look at a case called Gross v. FBL Financial Services that the street issued last month. Are you familiar with that?


FRANKEN: OK. Now, Gross involved the age discrimination and employment act or ADEA. And now, before Gross, you could bring an age discrimination suit whenever you could show that age was one of the factors an employer considered in choosing to fire you.

When the Supreme Court agreed to hear the case, it said it would consider just one question: Whether you needed direct evidence of age discrimination to bring this kind of lawsuit or whether indirect evidence would suffice.

That’s the issue that they said that they would consider when they took the case. But when the Supreme Court handed out its decision, it ruled on a much larger matter: Whether a worker could bring a suit under ADEA if age was only one of several reasons for being demoted or fired.

FRANKEN: The Supreme Court barred these suits saying that only suits alleging that age was the determinative factor for the firing, only those could be brought under the ADEA.

This change has significantly eroded workers’ rights, by making it much harder for workers to defend themselves from age discrimination, including any fired just before they would have seen a large increase in their pension. “You weren’t fired because you were too old, you were fired because your pension is going to increase soon”

So this is a big deal. When you go to court to defend your rights, you have to know what rights you’re defending. The parties in the Gross (ph) case thought they were talking about what kind of evidence was necessary in a discrimination suit, then the court just said, “No, we’re banning that kind of suit altogether”

I think that’s unfair to everyone involved. It’s especially unfair to the man who is trying to bring the discrimination suit. So let me ask you a couple of questions on this. First, as an Appellate Court judge, how often have you decided a case on an argument or a question that the parties have not briefed?

SOTOMAYOR: I don’t think I have, because, to the extent that the parties have not raised an issue, and the Circuit Court, for some reason, the panel has thought that it was pertinent. Most often that happens on questions of jurisdiction, can the court hear this case at all?

Then you issue, or we have issued a direction to the parties to brief that question. So it is briefed in part of the argument is raised. There are issues that the parties brief, that the briefing itself raises the issue for the court to consider.

So it’s generally the practice, at least on the 2nd Circuit, is to give a party an opportunity to be heard on a question. And we also have a procedure on the circuit that would give a party to be heard that they can also file the petition for rehearing, which is the panel enters a decision that the party disagrees with and thinks the court has not given it an adequate opportunity to present its argument. Then it can file that at the circuit.

I don’t have -- I am familiar with the Northwest (ph) case. I am familiar with the holding of that case. I’m a little less familiar and didn’t pay as much attention...

FRANKEN: With Gross (ph).

SOTOMAYOR: ... to the briefing issue. I do know there, that like the Brand X case, what the court says it was attempting to do, is to discern what Congress’ intent was under the ADA, whether it intended to consider mixed motive or not as a factor in applying the statute and the majority holding, as I understood it was, “Look, Congress, amended Title 7, to set forth the mixed motive framework and directed the courts to apply that framework in the future, but having amended that, it didn’t supply that amendment to the age discrimination statute.”

SOTOMAYOR: And so that would end up in a similar situation to the Brand X Case, which is, to the extent that Congress determines that it does want mixed motive to be a part of that analysis, that it would have the opportunity, and does have the opportunity to do what it did in Title VII, which is to amend the act.

FRANKEN: Well, in Title VII, they amended the act because they had to. They were forced to, right? Congress was impelled to, in the sense, but not on -- not on ADEA?

SOTOMAYOR: I -- I don’t like characterizing the reasons for why Congress acts or doesn’t act.

FRANKEN: OK. I got you. Let me jump ahead to something. Yesterday, a member of this committee asked you a few times whether the word “abortion” appears in the Constitution, and you agreed that, no, the word “abortion” is not in the Constitution. Are the words “birth control” in the Constitution?


FRANKEN: Are -- are you sure?


FRANKEN: OK. (LAUGHTER) Are the words “privacy” in the Constitution or the word?

SOTOMAYOR: The word “privacy” is not.

FRANKEN: Senators Kohl, Feinstein, and Cardin all raised the issue of privacy, but I want to hit this head on. Do you believe that the Constitution contains a fundamental right to privacy?

SOTOMAYOR: It contains, as has been recognized by the courts for over 90 years, certain rights under the liberty provision of the due process clause that extend to the right to privacy in certain situations.

This line of cases started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their children from being educated in ways a state found objectionable.

Obviously, states do regulate the content of education, at least in terms of requiring certain things with respect to education that I don’t think the Supreme Court has considered, but the basic -- that basic right to privacy has been recognized and was recognized. And there have been other decisions.

FRANKEN: So the issue of whether a word actually appears in the Constitution is not really relevant, is it?

SOTOMAYOR: Certainly, there are very specific words in the Constitution that have to be given direct application. There are some direct commands by the Constitution. You know, senators have to be a certain age to be senators. And so you’ve got to do what those words say.

But the Constitution is written in broad terms. And what a court does is then look at how those terms apply to a particular factual setting before it.

FRANKEN: OK. In Roe v. Wade, the Supreme Court found that the fundamental right to privacy included the right to decide whether or not to have an abortion. And as Senator Specter said, that’s been upheld or ruled on many times. Do you believe that this right to privacy includes the right to have an abortion?

SOTOMAYOR: The court has said in many cases -- and as I think has been repeated in the court’s jurisprudence in Casey -- that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.

FRANKEN: OK. I -- we’re going to have a round two, so I’ll ask you some more questions there. What was the one case in “Perry Mason” that Berger won?

SOTOMAYOR: There -- I wish I remembered the name of the episode, but I don’t. I just was always struck that there was only one case where his client was actually guilty.

FRANKEN: And you don’t remember that case?

SOTOMAYOR: I know that I should remember the name of it, but I haven’t looked at the episode. I...

FRANKEN: Didn’t the White House prepare you for that?

SOTOMAYOR: You’re right, but I was spending a lot of time on reviewing cases. No, sir. But I do have that stark memory because, like you, I watched it all of the time, every week as well. I just couldn’t interest my mother, the nurse, and my brother, the doctor, to do it with me.

FRANKEN: Oh. Oh, OK. Well, I -- we -- our whole family watched it, and -- because there was no Internet at the time, you and I were watching at the same time. And I thank you, and I guess I’ll talk to you in the follow-up.

SOTOMAYOR: Thank you.

LEAHY: Is the senator from Minnesota going to tell us which episode that was?

FRANKEN: I don’t know. That’s why I was asking. If I knew, I wouldn’t have asked her.

LEAHY: All right. Well -- so, because of that, Judge, we will not hold your inability to answer the question against you.

Now, on one of the -- I just discussed this with Senator Sessions, but I’ll make the formal request: is there any objection for the committee now proceeding to a closed session, which is a routine practice we’ve followed for every nominee since back when Senator Biden was chairman of this committee?
SESSIONS: Mr. Chairman, thank you. I think that’s the right thing to do, and there’ll be no objection that I know of.

LEAHY: Thank you very much. I appreciate the comments. So, hearing none, the committee will proceed to a closed session, and we will resume public hearings later this afternoon. And for the sake of those who have to handle all the electronic kind of things, we’ll try to give you enough of a heads-up.
We’ll stand in recess.


LEAHY: Welcome back, judge. We will skip over one, go to Senator Feingold. You are recognized for up to 20 minutes. I keep adding the “up to” hoping somebody will follow my example. But I do mean nobody will be cut off before 20 minutes.

FEINGOLD: Thank you, Mr. Chairman. I understand, and I’d like to begin using my time by asking that a letter from former members of PRLDEF board describing the role of board members, which does not include choosing or controlling litigation. I’d ask unanimous consent.

LEAHY: Without objection, it will be part of the record.

FEINGOLD: Thank you, Mr. Chairman. Judge, again, of course, thanks for your tremendous patience.
I’d like to start by talking for a moment about the recent Supreme Court decision in Caperton versus Massey. I consider this a significant case that bears upon the flood of special interest money that threatens to undermine public confidence in our justice system.

The facts of this case are notorious. John Grisham used them as an inspiration for his novel “The Appeal.” A jury in West Virginia returned a $50 million verdict for a large coal company. And pending the appeal, the company’s CEO spent $3 million to elect an attorney named Brent Benjamin to the state supreme court.
That was a huge amount of money, relatively speaking, more than the amounts spent by all of Benjamin’s other financial supporters combined. Benjamin won the election, because a West Virginia Supreme Court justice, and lo and behold, he voted to overturn that $50 million verdict against his main campaign contributor.

Twice he refused to recuse himself in the case despite his obvious conflict of interest. And last month the Supreme Court held that Benjamin’s failure to recuse himself was intolerable under our Constitution’s guarantee of due process of law.

The court also noted approvingly that most states have adopted codes of judicial conduct that prevent this kind of conflict. And to that end, I commend the Wisconsin Supreme Court’s plan to revise its recusal rules to provide additional safeguards that protect judicial impartiality.

You’ve been a judge for many years and you many have seen examples when you thought a judge should have withdrawn, although hopefully none were as egregious as this case.

In your opinion, what additional steps should judges and legislators take to ensure that the judiciary is held to the highest ethical standards and that litigants can be confident that their cases will be handled impartially?

SOTOMAYOR: Senator, I would find it inappropriate to make suggestions to Congress about what standards it should hold judges to or litigants. That’s a policy choice that Congress will consider.
I note that the American Bar Association has a code of conduct that applies to litigants. The judicial code has a code of conduct for judges. And as you noted in the state system where judges are elected, many states are doing what I just spoke about, making -- passing regulations.

Caperton was a case that was taken under the local rules of the Supreme Court presumably that exercises supervisory powers over the functions of the courts. And it presented obviously a significant issue because the court took it and decided the case.

At issue fundamentally is that judges, lawyers, all professionals must on their own abide by the highest standards of conduct. And I have given a speech on this topic to students at Yale at one point where I said, the law is only the minimum one must do, personally one must act in a way in cases to ensure that you’re acting consistent with your sense of meeting the highest standards of the profession.

FEINGOLD: Thank you, Judge. As I’m sure you know, on the last day of the term, the Supreme Court ordered that a pending case involving federal election law called Citizens United versus FEC be reargued in September.

It’s quite possible that you will be a member of the court by then. I do not intend to ask you how you’d rule in that case, but I do want to express my very deep concern about where the Supreme Court may be heading and then pose a general question to you.

In 2003, the court in a 5-4 ruling upheld the McCain-Feingold bill against constitutional challenge. I believe that ruling accurately applied the court’s previous precedents and recognized that Congress must have the power to regulate campaign finance to address serious problems of corruption and the appearance of corruption.

Since the arrival on the court of its two newest members, the court seems to have started in another direction on these issues, striking down or significantly narrowing two provisions of the law, the millionaires’ (ph) amendment to the Davis case and the issue ad provision in Wisconsin Right to Life.

Several justices have even argued that corporations and living persons should have the same constitutional rights to support their chosen candidates and that Austin v. Michigan Chamber of Commerce, a case rejecting that idea, should be overruled.

Austin is premised on what I believe is an absolutely reasonable conclusion that the political activities of corporations may be subjected to greater regulation because of the legal advantages given to them by the states that allow them to amass great wealth.

In scheduling rearguement in the Citizen United case, the court specifically asked the parties to address whether Austin should be overruled. If the court does that and depending on how exactly it rules, Judge, it may usher in an era of unlimited corporate spending on elections that the nation has not seen since the 19th century. Without addressing the specifics of the Citizen United case, I’d like to ask you what the Constitution and the Supreme Court’s precedents generally provide about the rights of corporations and what the current state of the law as far as corporate participation in elections is, as you understand it.

SOTOMAYOR: Senator, I have attempted to answer every question that’s been posed to me. You have noted that Citizens United is on the court’s docket for September. I think it’s September 9th. If I were confirmed for the court -- to the court, it would be the first case that I would participate in.

Given that existence of that case, the very first one, I think it would be inappropriate for me to do anything to speak about that area of the law because it would suggest that I’m going into that process with some prejudgment about what precedent says and what it doesn’t say and how to apply it in the open question the court is considering. I appreciate what you have said to me. But this is a special circumstance, given the pendency of that particular case.

FEINGOLD: And, frankly, Judge, I -- I probably would say the same thing if I were in your shoes, given -- given -- given the -- the facts as -- as they are. I appreciate the opportunity to express what I wanted to say about that. And with that, Mr. Chairman, I am going to use up less than half of my time.

LEAHY: I thank you. I think you have set a fantastic example. I commend you. I say that in a totally non-partisan fashion. Senator Grassley?

GRASSLEY: I assume that I get the time that he didn’t use.

LEAHY: No, no. After you demonstrated -- was it yesterday you demonstrated that you intend to turn people on. We don’t need any more -- we don’t need any more excitement, Senator Grassley. We want it as low key as possible. But you -- you do have up to 20 minutes. The operative word is up to 20 minutes.

GRASSLEY: Now, I believe that I’m going to ask you something you never been asked before during this hearing, I hope. I’d like to be original on something.

I want to say to you that there’s a Supreme Court decision called Baker v. Nelson, 1972. It says that the federal courts lack jurisdiction to hear due process and equal protection challenges to state marriage laws, quote, “for one of substantial federal question,” which obviously is an issue the courts deal with quite regularly. I mean, the issue of is it a federal question or not a federal question. So do you agree that marriage is a question reserved for the states to decide based on Baker v. Nelson?

SOTOMAYOR: That also is a question that’s...

GRASSLEY: I thought I was asking...

SOTOMAYOR: ... pending and impending in many courts. As you know, the issue of marriage and what constitutes it is a subject of much public discussion. And there’s a number of cases in state courts addressing the issue of what -- who regulates it, under what terms.

GRASSLEY: Can I please interrupt you? I thought I was asking a very simple question based upon a precedent that Baker v. Nelson is based on the proposition that yesterday in so many cases, whether it was Griswold (ph), whether it was Roe v. Wade, whether it was Chevron, whether it’s a whole bunch of other cases that you made reference to, the Casey (ph) case, the Gonzalez (ph) case, the Leegin Creative Leather Products case, the Kelo case. You made that case to me. You said these are precedents. Now, are you saying to me that Baker v. Nelson is not a precedent?

SOTOMAYOR: No, sir. I just haven’t reviewed Baker in a while. And so, I actually don’t know what the status is. If it is the court’s precedent, as I’ve indicated in all of my answers, I will apply that precedent to the facts of any new situation that implicates it.


SOTOMAYOR: What was the first question (inaudible)...

GRASSLEY: ... then, tell me -- tell me what sort of a process you might go through if a case -- a marriage case came to the Supreme Court of whether Baker v. Nelson is precedent or not. Because I assume if it is precedent, based on everything you told us yesterday, you’re going to follow it.

SOTOMAYOR: The question on a marriage issue will be two sides will come in. One will say Baker applies. Another will say this court’s precedent applies to this factual situation, whatever the factual situation is before the court. They’ll argue about what the meaning of that precedent is, how it applies to the regulation that’s at issue. And then the court will look at whatever it is that the state has done, what law it has passed on this issue of marriage and decide, OK, which precedent controls this outcome.

It’s not that I’m attempting not to answer your question, Senator Grassley. I’m trying to explain the process that would be used. Again, this question of how and what is constitutional or not or how a court will approach a case and what precedent to apply to it is going to depend on what’s at issue before the court. Could the state do what it did?

GRASSLEY: Can I interrupt you again? Following what you said yesterday, that certain things are precedent, I assume that you’ve answered a lot of questions before this committee about, even after you said that certain things are precedent, of things that are going to come before the court down the road when -- if you’re on the Supreme Court. You didn’t seem to compromise or hedge on those things being precedent. Why are you hedging on this?

SOTOMAYOR: I’m not on this because the holding of Baker v. Nelson, as it’s holding. As a holding, it would control any similar issue that came up.

It’s been a while since I’ve looked at that case, so I can’t, as I could with some of the more recent precedent of the court or the more core holdings of the court on a variety of different issues, answer exactly what the holding was and what the situation that it apply to.

I would be happy, Senator, as a follow up to a written letter or to give me the opportunity to come back tomorrow and just address that issue. I’d have to look at Baker again.

GRASSLEY: I would appreciate it.

SOTOMAYOR: It’s been too long since I’ve looked at it. And so -- it may have been, sir, as far back as law school, which was...

GRASSLEY: Oh, you were probably...

SOTOMAYOR: ... 30 years...

GRASSLEY: ... probably in grade school, you were, at that time.

SOTOMAYOR: It was -- that I looked at it, sir.

LEAHY: It’s one line. It’s just one line. You could read it (OFF-MIKE)

GRASSLEY: OK. I want to go on and -- but I would like to have you do that, what you suggested, you’d answer me further after you studied it.

I have a question that kind of relates to the first question. In 1996, Congress passed and President Clinton signed into law the Defense of Marriage Act, which defined marriage for the purpose of federal law as between one man and one woman. It also prevents a state or territory from giving effect to another state that recognized same-sex marriages.

Both provisions have been challenged as unconstitutional, and federal courts have upheld both cases. One is a Wilson (ph) case; one is a Bishop (ph) case. A district court -- yes, a district court. Do you agree with federal courts, which have held that the Defense of Marriage Act does not violate the full faith and credit clause and is an appropriate exercise of Congress’s power to regulate conflicts between laws of different states?

SOTOMAYOR: That’s very similar to the Austin (ph) situation, but the ABA rules would not permit me to comment on the merits of a case that’s pending or impending before the Supreme Court.
The Supreme Court has not addressed the constitutionality of that statute. And to the extent that lower courts have addressed it and made holdings, it is an impending case that could come before the Supreme Court, so I can’t comment on the merits of that case.

GRASSLEY: Have you ever made any rulings on the full faith and credit clause?

SOTOMAYOR: I may have, but if your specific question is, have I done it with respect to a marriage-related issue, no.

GRASSLEY: Well, not -- on -- on anything on the full faith and credit clause.

SOTOMAYOR: I actually have no memory of doing so. GRASSLEY: OK. That’s OK. No, you can stop there. That’s OK. Now, I’m going to go to a place where Senator Hatch left off, but I’m not going to repeat any of the questions that he asked. But there’s one that I want to ask. And I feel a little bit guilty of this. My dad used to have a saying to us kids that we’re harping on something. He says, “When are you going to quit beating a dead horse?” But I want to ask you anyway.

You also wrote, quote, “I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women and men of color, we do a disservice both to the law and to society,” end of quote.

So the certain I have about the statement is indicating that you believe judges should and must take into account gender, ethnic background, or other personal preferences in their decision-making process. Is that what you meant?

And I want to follow it up so I don’t have to ask two questions. How is being impartial a disservice to the law and society? Isn’t justice supposed to be blind?

SOTOMAYOR: No, I do not believe that judges should use their personal feelings, beliefs or value systems, or make -- to influence their outcomes, and neither do I believe that they should consider the gender, race or ethnicity of any group that’s before them. I absolutely do not believe that.

With respect to -- yes, is the -- is the goal of justice to be impartial? That is the central role of a judge. The judge is the impartial decision-maker before parties who come before them.

My speech was on something else, but I have no quarrel with the basic principles that you have asked me to recognize. No quarrel sounds equivocal. I do believe in those things absolutely, and that’s what I have proven I do as a judge.

GRASSLEY: OK. Then the last one on this point of another remark you made. You also stated that you, quote, “further accept that our experiences as women and people of color affect our decisions,” end of quote, and then, further quote, “that personal experiences affect the facts that judges choose to see” and that, further quote, “there will be some differences in my judging” -- “differences in judging” is in parentheses -- “based on my gender and Latina heritage.” Do you believe that it is ever appropriate for judges to allow their own identity politics to influence their judgment?

SOTOMAYOR: No, sir, absolutely not.

GRASSLEY: OK. Then I want to move on to another area. This question comes from your 1992 Senate questionnaire. You wrote in response to a question about judicial activism that, quote, “intrusions by a judge upon the functions of other branches of government should only be done as a last resort and limitedly.” Is this still your position? And let me follow up. When would such an intrusion be justified? For example, what is an example of last resort? What is an example of limitedly?

SOTOMAYOR: The answer is, judges -- and the manner in which that question was responded to -- was, to the extent that there has been a violation of the Constitution in whatever manner a court identifies in a particular case, it has to try to remedy that situation in the most narrow way in order not to intrude on the functions of other branches or actors in the process.

The case that I -- was discussed in my history has been the Doe case, in which I joined the panel decision where the district court had invalidated a statute that -- found unconstitutional a statute that the legislature had passed on national security letters.

Our panel reviewed that situation and attempted to discern and did discern Congress’s intent to be that despite a -- isolated provisions that might have to be narrowly construed to survive constitutional review, it held that the other provisions of the act were constitutional.

So the vast majority, contrary to what the district court -- and I’m not suggesting it was intending to violate what I’m describing, but the court took a different view than the circuit did, we upheld the statute in large measure.
To the extent that we thought there were and found that there were two provisions that were unconstitutional, we narrowly construed them in order to assist in effecting Congress’s intent. That’s what I talked about limitedly in that answer.

GRASSLEY: OK. A little bit along the same line in your law review articles you wrote that, quote: “Our society would be straight- jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling,” and I don’t know whether that’s your emphasis or mine, but I’ve got it underlined, “overhauling the law and adapt” -- maybe I had better start over again.

Quote: “Our society would be straight-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political changes.”

Explanation of the statement from you. I think you’re saying that judges can twist the law regardless of what the legislature, the elected branch of government has enacted into law. It’s kind of my interpretation of that.
Now obviously I think you’re going to tell me you don’t mean that, but at least you know where I’m coming from.

SOTOMAYOR: No, that interpretation was clearly not my intent. And I don’t actually remember those particular words. But I do remember the speech. I’m assuming you’re talking about “Returning Majesty to the Law.” And there I was talking about a broader set of questions which was how to bring the public’s respect back to the function of judges. And I was talking about the judges that lawyers have an obligation to explain to the public the reasons why what seems unpredictable in the law has reasons.

And I mentioned in that speech that one of the big reasons is that Congress makes new laws. That was the very first reason I discussed. And also that there is new technology, there is new developments in society.

And what lawyers do is come in and talk to you about, OK, we’ve got these laws, how do you apply them to this new situation? And what judges do -- and that’s why I was talking about the assistance of judges, is -- of lawyers, is what you do is you look at the court’s precedents, you look at what a statute says, and you try to understand the principles that are at issue and apply them to what the society is doing.

And that was the focus of my speech which was, talk to the public about the process. Don’t feed into their cynicism that judges are activists, that judges are making law. Working at explaining to the -- to the public what the process is. I also talked to -- part of my speech is what judges can do to help improve respect of the public in the legal process.

GRASSLEY: So the use of the word overhaul does not in any -- overhaul the law does not in any way imply usurpation of legislative power by the courts?

SOTOMAYOR: Right. No. And if you look at what I was talking about, it was the society develops. We are not today what we were a hundred years ago in terms of technology, medicine, so many different areas.


SOTOMAYOR: There are new situations that arise and new facts that courts look at. You apply the law to those situations, but that is the process of judging, which is sort of trying to figure out what does the law say about a set of facts that may not have been imagined at the time of the founding of the Constitution but it’s what the judge is facing then. How do you apply it to that?

GRASSLEY: I want to go back to Didden (ph) based upon my opportunity to reflect on some things you said yesterday. The -- the time limit to file a case in Didden (ph) was three years. Mr. Didden (ph) was approached for what he classified as extortion in November 2003. Two months later in January of 2004, he filed his lawsuit.

But under your ruling, Mr. Didden (ph) was required to file his lawsuit in July 2002, close to a year and-a-half before he was actually extorted. So that doesn’t make sense to require someone to file a lawsuit on a perceived chance that an order might occur.

You also testified that the Supreme Court’s Kelo decision was not relevant to the Didden (ph) holding. But your opinion in cursory fashion, which is a problem that we’ve addressed yesterday, states that if there was no statute of limitation issue, Kelo would have permitted Mr. Didden’s (ph) property to be taken.

It’s hard to believe that an individual’s property can be seized when he refuses to be extorted without any Constitution violation taking place. It’s even hard to believe that under these circumstances Mr. Didden (ph) did not deserve his day in court or at least some additional legal analysis.

Could you please explain how Mr. Didden (ph) could have filed his lawsuit July 2002 before he was extorted in November 2003? And also please explain why a July 2002 filing would not have been dismissed because there was no proof that Mr. Didden (ph) had suffered an injury, only an allegation that he might be injured in the future.

SOTOMAYOR: The basis of Mr. Didden’s (ph) lawsuit was the state can’t take my property and give it to a private developer and because that is not consistent with the takings clause of the Constitution. To the extent he knew the state -- and there’s no dispute about this, that the state had found a public use for his property, that it had a public purpose, that it had an agreement with a private developer to let that developer take the property -- he knew that he was injured because his basic argument was, “The state can’t do this. It can’t take my property and give it to a private developer”

The Supreme Court in Kilo (ph) addressed that question and said, “Under certain circumstances, the state can do that if it’s for a public use and for a public purpose” And so his lawsuit, essentially addressing that question, came five years after he knew what the state was doing.

The issue of extortion was a question of whether the private developer, in settling a lawsuit with them, was engaging in extortion and extortion is an unlawful asking of money with no basis. But the private developer had a basis. He had an agreement with the state. And so that is a different issue than the timeliness of Mr. Didden’s (ph) complaint.

CHAIRMAN: Thank you. Senator Cornyn, we’ll recognize Senator Cornyn and then for those out to plan, we will recess until 9:30 tomorrow morning. Senator Cornyn.

CORNYN: Well, judge, let me first say that since this will be my last time in this hearing to address you, to say this has been my first confirmation hearing for a Supreme Court justice. And you have set a very high standard for me, for those I might have to consider, because there’s always a possibility of future vacancies on the Supreme Court, as to responding to our questions, being very open with us. And I think really demonstrating the type of respect for the process that has really shown dignity to you and to our committee and we -- I thank you for that.

I thanked you in the beginning for your willingness to serve the public, as a prosecutor and as a judge and now willing to take on this really incredible responsibility. And I just really want to emphasize that again. I don’t know if you thought, when you were being considered for this, what you would have to go through as far as the appearance before the Judiciary Committee, but it gets better after our hearings, I believe, so let me ask you one or two questions, if I might.

I want to follow-up on Senator Kyl’s question on the selection of cases, under sure shurary (ph). As has been pointed out, there’s maybe 1 percent of the cases that are petitioned for the Supreme Court actually will get an opinion from the Supreme Court and will be decided.

Now, Senator Kyl asked you what standards you would use and I just really want to concentrate on the impact that a Supreme Court case can have. I want to refer to one of your cases, the Boykin case, which was the housing case where a borrower -- you allowed that borrower to go forward, African-American, on a discrimination issue. And we’ve seen, throughout history, discrimination against minorities in housing, with red-lining and predatory lending, that led to the fair housing act, enacted by Congress, the Supreme Court has long recognized Title VII and VIII of the Federal Housing Act. So part of the coordinated scheme of federal civil rights laws enacted to end discrimination.

But there’s still major challenges that are out there. The predatory lending still takes place. It’s happened during this housing crisis, with the subprime mortgage market, targeted towards minority communities. I say that in great relationship to the Boykin case, which I agreed with your conclusions. It not only could affect the litigants that were before you, but could have an impact on industry practice, if in fact there was discrimination, and the case was decided by your court.

CARDIN: And the same thing is true in the Supreme Court, more so in the Supreme Court. It is the highest judgment of our land. And, yes, you have to be mindful when you take a case on cert as to the impact it will have on the litigants. Certainly, you have to take into consideration if there’s been different, inconsistent rulings in the different circuits.

But it seems to me that one of the standards I would hope you would use is the importance of deciding this case for the impact it has on a broader group of people in our nation, whether it’s a housing case that could affect a community’s ability to get fair access to mortgages for homeownership or whether it’s a case that could have an impact on a class of people, on -- on environmental or economic issues.

And I just would like to get from you whether this, in fact, is a reasonable request, as you consider certiorari requests, that one of the factors that is considered is the impact it has on the community at large.

SOTOMAYOR: As I indicated earlier, we don’t make policy choices. That means that I would think it inappropriate for a court to choose a case because -- or a court -- a judge to choose a case based on some sense of, “I want this result on society.” A judge takes a case to decide a legal issue, understanding its importance to an area of law and to arguments that parties are making about why it’s important.
The question of impact is different than what a judge looks at, which is what’s the state of the law in this question, and how and what clarity is needed and other factors.

But as I said, there’s a subtle but important difference in separating out and making choices based on policy and how you would like an issue to come out than a question that a judge looks at, in terms of assessing the time at which a legal argument should be addressed.

CARDIN: And I respect that difference, and I don’t want you to be taking a case to try to make policy, but I do think the need for clarity for the community as to what is appropriate conduct well beyond the litigants of a particular case is a factor where clarification is needed should weigh heavily on whether the court takes that type of case or not.

SOTOMAYOR: There’s just no one factor that controls the choice where you say, “I’m going to look at every case this way.” As I said, judges in -- well, I shouldn’t talk, because I haven’t -- I’m not there. But my understanding of the process is that it’s not based on those policy implications of an outcome; it’s based on a different question than that.

CARDIN: Well, let me conclude on one other case that you ruled on, where I also agree with your decision. That’s the Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a district court summary judgment finding in favor of the Muslim inmate who was denied by prison officials access to his religious meals marking the end of Ramadan.

You held that the inmate’s fundamental rights were violated and that the opinions of the department of correction and religious authorities cannot trump the plaintiff’s sincere and religious beliefs.

The freedom of religion is one of the basic principles in our Constitution, as I said in my opening comments. It was one of the reasons why my grandparents came to America. The freedom of religion, expression is truly a fundamental American right.

Please share with us your philosophy as to -- maybe it’s a wrong use of terms -- but the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right in our Constitution.

SOTOMAYOR: I don’t mean to be funny, but the court has held that it’s fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the -- the state from establishing a religion, and that we have freedom of expression in speech, as well.

Those freedoms are central to our Constitution. The Ford case, as others that I had rendered in this area, recognize the importance of that in terms of one’s consideration of actions that are being taken to restrict it in a particular circumstance.

Speaking further is difficult to do. Again, because of the role of a judge, to say it’s important, that it’s fundamental, and it’s legal and common meaning is always looked at in the context of a particular case. What’s the state doing?

In the Ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue, OK?

And what I was doing was applying very important Supreme Court precedent that said, it’s the subjective belief of the individual. Is it really motivated by a religious belief?

It’s one of the reasons we recognize conscientious objectors, because we’re asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual’s religious belief and then look at what the state is doing in light of that. So that was what the issue was in Ford.

CARDIN: Well, thank you for that answer. And, again, thank you very much for the manner in which you have responded to our questions. Thank you, Mr. Chairman.

LEAHY: Thank you. Thank you very much, Senator Cardin. As I noted earlier, we will now recess until 9:30 tomorrow morning and wish you all a pleasant evening. Thank you. ###

Thursday’s Testimony, Part 1 is now available here.