Opinion: Death Penalty Questions At Sotomayor Hearing


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As The Ticket often does, in addition to our own take on politics and events, we are providing a complete transcript here for those interested in reading the political participants’ own words in full.

Here’s the fifth and final part of the transcript of the second day of hearings on the Supreme Court nomination of Judge Sonia Sotomayor, so Ticket readers can make their own judgments on the back-and-forth between the nominee and the interrogating senators -- some setting her up with softballs, others pursuing tougher lines of questioning.


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

Yesterday, we published each committee senator’s opening statement. And we published Sotomayor’s opening statement. Part 1 of today’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.

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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(This portion picks up from Part 4 with Sen., Graham asking if Judge Sotomayor is the only Second Circuit judge to ask tough questions.)


SOTOMAYOR: No, sir. No, not at all. I can only explain what I’m doing which is when I ask lawyers tough questions, it’s to give them an opportunity to explain their positions on both sides and to persuade me that they’re right.

I do know that, in the Second Circuit, because we only give litigants 10 minutes of oral argument....

...each, that the processes in the second circuit are different than in most other circuits across the country. And that some lawyers do find that our court, which is not just me, but our court generally, is described as a hoc bench, it’s term that lawyers use. It means that they’re peppered with questions.

Lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging.

GRAHAM: If I may interject, judge, they find you difficult and challenging more than your colleagues. And the only reason I mention this is that it stands out. When you -- there are many positive things about you and these hearings are designed to talk about the good and the bad and I never liked appearing before a judge that I thought was a bully.

It’s hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?


SOTOMAYOR: No, sir. I can only talk about what I know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. And I believe that my reputation is stuck as such that I ask the hard questions, but I do it evenly for both sides.

GRAHAM: And in fairness to you, there are plenty of statements in the record in support of you as a person, that do not go down this line. But I will just suggest to you, for what it’s worth, judge, as you go forward here, that these statements about you are striking. They’re not about your colleagues.

The ten-minute rule applies to everybody and that obviously you’ve accomplished a lot in your life, but maybe these hearings are time for self-reflection. This is pretty tough stuff that you don’t see from -- about other judges on the second circuit.

Let’s talk about the wise Latina comment, yet again. And the only reason I want to talk about it yet again is that I think what you said -- let me just put my vices on the table here. One of the things that I constantly say when I talk about the war on terror is that one of the missing ingredients in the Mideast is the rule of law that Senator Schumer talked about.

That the hope for the Mideast, Iraq and Afghanistan is that there’ll be a courtroom one day that if you find yourself in that court, it would be about what you allegedly did, not who you are.

It won’t be about whether you’re a Sunni, Shia, a Kurd or a Pashtun, it will be about what you did. And that’s the hope of the world, really, that our legal system, even though we fail at times, will spread. And I hope one day that there will be more women serving in elected office and judicial offices in the Mid-East because I can tell you this, from my point of view. One of the biggest problems in Iraq and Afghanistan is the mother’s voice is seldom heard about the fate of her children.


And if you wanted to change Iraq, apply the rule of law and have more women involved and having a say about Iraq. And I believe that about Afghanistan. And I think that’s true here.

GRAHAM: I think, for a long time, a lot of talented women were asked, can you type? And were trying to get beyond that and improve as a nation. So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.

But your speeches don’t really say that to me.

They -- along the lines of what Senator Kyl was saying -- they kind of represent the idea, there’s a day coming when there’ll be more of us -- women and minorities -- and we’re going to change the law.

And what I hope we’ll take away from this hearing is there need to be more women and minorities in the law to make a better America. And the law needs to be there for all of us, if and when we need it.
And the one thing that I’ve tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we’re talking about putting you on the Supreme Court and judging your fellow citizens.

And one of the things that I need to be assured of is that you understand the world as it pretty much really is. And we’ve got a long way to go in this country, and I can’t find the quote, but I’ll find it here in a moment -- the wise Latina quote. Well, do you remember it? (LAUGHTER)


GRAHAM: OK. Say it to me. Can you recite it from memory? I’ve got it. (LAUGHTER) All right.
‘I would hope that a wise Latina woman, with the richness of her experience, would more often than not reach a better conclusion than a white male.’ And the only reason I keep talking about this is that I’m in politics. And you’ve got to watch what you say, because, one, you don’t want to offend people you’re trying to represent.


But do you understand, ma’am, that if I had said anything like that, and my reasoning was that I’m trying to inspire somebody, they would have had my head? Do you understand that?

SOTOMAYOR: I do understand how those words could be taken that way, particularly if read in isolation.

GRAHAM: Well, I don’t know how else you could take that. If Lindsey Graham said that I will make a better senator than X, because of my experience as a Caucasian male makes me better able to represent the people of South Carolina, and my opponent was a minority, it would make national news, and it should.

Having said that, I am not going to judge you by that one statement. I just hope you’ll appreciate the world in which we live in, that you can say those things, meaning to inspire somebody, and still have a chance to get on the Supreme Court. Others could not remotely come close to that statement and survive. Whether that’s right or wrong, I think that’s a fact.

GRAHAM: Does that make sense to you?

SOTOMAYOR: It does. And I would hope that we’ve come in America to the place where we can look at a statement that could be misunderstood, and consider it in the context of the person’s life. (CROSSTALK)

GRAHAM: You know what? If that comes of this hearing, the hearing has been worth it all, that some people deserve a second chance when they misspeak and you would look at the entire life story to determine whether this is an aberration or just a reflection of your real soul. If that comes from this hearing, then we’ve probably done the country some good. Now, let’s talk about the times in which we live in. You’re from New York. So you’ve grown up in New York all your life?


SOTOMAYOR: My entire life.

GRAHAM: What did September the 11th, 2001, mean to you?

SOTOMAYOR: It was the most horrific experience of my personal life and the most horrific experience in imagining the pain of the families of victims of that tragedy.

GRAHAM: Do you know anything about the group that planned this attack, who they are and what they believe? Have you read anything about them?

SOTOMAYOR: I’ve followed the newspaper accounts. I’ve read some books in the area, so I believe I have an understanding of that...(CROSSTALK)

GRAHAM: What would a woman’s life be in their world, if they can control a government or a part of the world? What do they have in store for women?

SOTOMAYOR: I understand that some of them have indicated that women are not equal to men.

GRAHAM: I think that’s a very charitable statement. Do you believe that we’re at war?

SOTOMAYOR: We are, sir. We have -- we have tens and thousands of soldiers on the battlefields of Afghanistan and Iraq. We are at war.

GRAHAM: Are you familiar with military law much at all? And if you’re not, that’s OK. (CROSSTALK)


SOTOMAYOR: No, no, no, no. I’m thinking, because I’ve never practiced in the area. I’ve only read the Supreme Court decisions in this area.

GRAHAM: Right.

SOTOMAYOR: I’ve obviously examined by referencing cases some of the procedures involved in military law, but I’m not personally familiar with military law. I haven’t participated.

GRAHAM: I understand. From what you read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction?

SOTOMAYOR: Given the announcements of certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent, then the answer would be on -- based on that, yes.

GRAHAM: Under the law of armed conflict -- and this is where I may differ a bit with my colleagues -- it is an international concept, the law of armed conflict.

Under the law of armed conflict, do you agree with the following statement, that if a person is detained who is properly identified to accepted legal procedures under the law of armed conflict as a part of the enemy force, there is not requirement based on a length of time that they be returned to the battle or released?


In other words, if you capture a member of the enemy force, is it your understanding of the law that you have to, at some period of time, let them go back to the fight?

SOTOMAYOR: I -- it’s difficult to answer that question in the abstract for the reason that I indicated later. I have not been a student of the law of war, other than to...

GRAHAM: We’ll have another round. I know you’ll have a lot of things to do, but try to-- try to look at that. Look at that general legal concept. And the legal concept I’m espousing (ph) is that under the law of war, Article 5 specifically of the Geneva Convention, requires the detaining authority to allow an impartial decision maker to determine the question of status. Whether or not you’re a member of the enemy force.
And see if I’m right about the law, but it that determination is properly had, there is no requirement, under the law of armed conflict, to release a member of the enemy force that still presents a threat. I would like you to look at that. Now let’s talk about --Thank you.

Let’s talk about your time as a lawyer. The Puerto Rican Legal Defense Fund, is that right? Is that the name of the organization?

SOTOMAYOR: It was then. I think you’d -- I know it has changed names recently.

GRAHAM: OK. How long were you a member of that organization?

SOTOMAYOR: Nearly 12 years.


SOTOMAYOR: If not 12 years.

GRAHAM: Right. During that time, you were involved in litigation matters, is that correct?

SOTOMAYOR: The fund was involved in litigations, I was a board member of the fund.

GRAHAM: OK. Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?


SOTOMAYOR: No, I never reviewed those briefs.

GRAHAM: Well, in their briefs, they argued, and I will submit the quotes to you, that if you deny a low-income woman Medicaid funding, taxpayer funds, to have an abortion, if you deny her that, that’s a form of slavery. And I can get the quotes. Do you agree with that?

SOTOMAYOR: I wasn’t aware of what was said in those briefs. Perhaps it might be helpful if I explained what the function of a board member is and what the function of the staff would be in an organization like the fund.


SOTOMAYOR: In a small organization as the Puerto Rican Legal Defense Fund was back then, it wasn’t the size of other legal defense funds, like the NAACP Legal Defense Fund, or the Mexican-American Legal Defense Fund, which are organizations that undertook very similar work to PRLDF.

In an organization like PRLDF, a board member’s main responsible is to fundraise. And I’m sure that a review of the board meetings would show that that’s what we spent most of our time on. To the extent that we looked at the organization’s legal work, it was to ensure that it was consistent with the broad mission statement of the fund.

GRAHAM: Did the mission statement of the fund to include taxpayer-funded abortion?

SOTOMAYOR: Our mission...

GRAHAM: Was that one of the goals?

SOTOMAYOR: Our mission statement was broad, like the Constitution.


SOTOMAYOR: Which meant that its focus was on promoting the equal opportunities of Hispanics in the United States.

GRAHAM: Well, Judge, I’ve got -- and I’ll share them with you, and we’ll talk about this more, a host of briefs for a 12-year period, where the fund is advocating to the state court and the federal courts, that to deny a woman taxpayer funds, a low-income woman taxpayer assistance in having an abortion, is a form of slavery, it’s an unspeakable cruelty to the life and health of a poor woman. Was it or was it not the position of the fund to advocate taxpayer-funded abortions to low-income women?


SOTOMAYOR: I wasn’t -- and I didn’t, as a board member, review those briefs. Our lawyers were charged...

GRAHAM: Would it bother you if that’s what they did?

SOTOMAYOR: Well, I know that the fund, during the years I was there, was involved in public health issues as it affected the Latino community. It was involved...

GRAHAM: Is abortion a public health issue?

SOTOMAYOR: Well, it was certainly viewed that way generally by a number of...

GRAHAM: Do you...

SOTOMAYOR: ... civil rights organizations at the time.

GRAHAM: Do you personally view it that way?

SOTOMAYOR: It wasn’t a question of whether I personally viewed it that way or not. The issue was whether the law was settled on what issues the fund was advocating on behalf of the community it represented.

GRAHAM: Well, the fund -- oh, I’m sorry. Go ahead.

SOTOMAYOR: And so, the question would become, was there a good faith basis for whatever arguments they were making, as the fund’s lawyers were lawyers...

GRAHAM: Well, yes...

SOTOMAYOR: ... who had an ethical obligation...

GRAHAM: And quite frankly, that’s, you know -- lawyers are lawyers. And people who have causes that they believe in have every right to pursue those causes.

And the fund, when you look -- you may have been a board member, but I am here to tell you, that file briefs constantly for the idea that taxpayer-funded abortion was necessary, and to deny it would be a form of slavery, challenged parental consent as being cruel.

And I can go down a list of issues that the fund got involved in, that the death penalty should be stricken, because it has -- it’s a form of racial discrimination. What’s your view of the death penalty, in terms of personally?


SOTOMAYOR: The issue for me with respect to the death penalty is that the Supreme Court, since Gregg, has determined that the death penalty is constitutional under certain situations.

GRAHAM: Right.

SOTOMAYOR: I have rejected challenges to the federal law and its application in the one case I handled as a district court judge, but it’s a reflection of what my views are on...

GRAHAM: As an advocate...

SOTOMAYOR: ... the law.

GRAHAM: As an advocate, did you challenge the death penalty as being an inappropriate punishment, because of the effect it has on race?

SOTOMAYOR: I never litigated a death penalty case personally. The fund...

GRAHAM: Did you ever sign a memorandum saying that?

SOTOMAYOR: I signed the memorandum for the board to take under consideration, what position on behalf of the Latino community the fund should take on New York State reinstating the death penalty in the state.
It’s hard to remember, because so much time has passed...

GRAHAM: Yes, well...

SOTOMAYOR: ... in the 30 years since...

GRAHAM: We’ll give you a chance to look at some of the things I’m talking about, because I want you to be aware of what I’m talking about.

Let me ask you this. I’ve got 30 seconds left. If a lawyer on the on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?

SOTOMAYOR: An advocate advocates on behalf of the client they have. And so that’s a different situation than how a judge has acted in the cases before him or her.


GRAHAM: OK. And the only reason I mention this, Judge, is that the positions you took or this fund took, I think, like the speeches, tell us some things. And we’ll have a chance to talk more about your full life, but I appreciate the opportunity to talk with you.

SOTOMAYOR: Thank you, sir.

LEAHY: Thank you very much, Senator Graham. Senator Durbin?

DURBIN: Thank you, Mr. Chairman. Judge, good to see you again.

SOTOMAYOR: Hello, Senator. Thank you. And I thank you again for letting me use your conference room when I was as hobbled as I was.

DURBIN: You were more than welcome there. And there was more traffic of senators in my conference room than I’ve seen since I was elected to the Senate, so...(LAUGHTER)

This has been an interesting exercise today for many of us who’ve been on the Judiciary Committee for a while, because the people new to it may not know, but there’s been a little bit of a role reversal here. The Democratic side is now largely speaking in favor of our president’s nominee. The other side is asking questions more critical.

And in the previous two Supreme Court nominees, the tables were turned. There were more critical questions coming from the Democratic side.

And there’s also another contrast, obvious contrast. The two previous nominees that were considered while I was on the committee, Chief Justice Roberts and Justice Alito, were -- are white males. And, of course, you come to this as a minority woman candidate.


When we asked questions of the white male nominees of a Republican president, we were basically trying to find out whether -- to make sure that they would go far enough in understanding the plight of minorities, because clearly that was not in their DNA. The questions being asked of you from the other side primarily are along the lines of, will you go too far in siding with minorities?

It’s an interesting contrast as I watch this play out. And two things have really been the focus on the other side, although a lot of questions have been asked.

One was, I should say, your speeches, one or two speeches. I took a look here. I think you’ve given over 500 speeches. And so that they would only find fault in one or two to bring up is a pretty good track record from this side of the table. If, as politicians, all we had were two speeches that would raise some questions among our critics, we would be pretty fortunate.

And when it came down to your cases, it appears that you’ve been involved at least as a federal judge in over 3,000 cases. And it appears that the Ricci case really is the focus of more attention than almost any other decision.

DURBIN: I think that speaks pretty well of you for 17 years on the bench. And I -- I’m going to join, as others have said, in commending the other side, because although their questions have sometimes been pointed, I think they’ve been fair. And I think you’ve handled the responses well.

I would like to say that, on the speech, which has come up time and again, the ‘wise Latina’ speech, you know, the next paragraph in that speech -- and I don’t know if it has been read to the members, but it should be. Because after you made the quote, which has been the subject of many inquiries here, you went on to say ‘Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case’


You went on to say, ‘I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Sieterbaum, (ph) who may still be here, pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues, including Brown’

That, to me, tells the whole story. You are, of course proud of your heritage, as I’m proud of my own, but to suggest that a special insight and wisdom comes with it, is to overlook the obvious. Wise men have made bad decisions, white men have made decisions favoring minorities. Those things have happened when people look to the law and look to the Constitution.

So I would like to get into two or three areas, if I might, to follow up on, because they’re areas of particular interest to me. And I’ll return to one that Senator Graham just touched on and that is the death penalty.

A book which I greatly enjoyed, I don’t know if you ever had a chance to read, ‘Becoming Justice Blackmun’ a story of Justice Blackmun’s career and many of the things that happened to him. Now, late in his career, he decided that he could no longer support the death penalty. And it was a long, thoughtful process that brought him to this moment.

And he made the famous statement, maybe the best-known line attributed to him, in a decision, Collins, vs. Collins, ‘From this day forward, I no longer shall tinker with the machinery of death’ The opinion said, and I quote, ‘Twenty years have passed since’ and this is 1994.

‘Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency, or not at all. See Furman vs. Georgia and despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake.’


Judge Sotomayor, I know that you’ve thought about this issue. Senator Graham made reference to the Puerto Rican Legal Defence Education Fund memo that you once signed on the subject. What is your thought about Justice Blackmun’s view that, despite our best legal efforts, the imposition of the death penalty in the United States has not been handled fairly.

SOTOMAYOR: With respect to the position the fund took in 1980-81 with respect to the death penalty, that was, as I noted, a question of being an advocate and expressing views on behalf of a community on a policy choice New York State was making: Should we, or should we not reinstitute the death penalty? As a judge, what I have, and look at and realize is, that in 30 years, or 40, actually, there has been -- excuse me, Senator. Oh, I’m sorry.

DURBIN: It’s all right.

SOTOMAYOR: ... enormous changes in our society, many, many cases looked at by the Supreme Court addressing the application of the death penalty, addressing issues of its application and when they’re constitutional or not. The state of this question is different today than it was when Justice Blackmun came to his views.

As a judge, I don’t rule in an abstract. I rule in the context of a case that comes before me and a challenge to a situation and an application of the death penalty that arises from an individual case.

I’ve been and am very cautious about expressing personal views since I’ve been a judge. I find that people who listen to judges express their personal views on important questions that the courts are looking at, that they have a sense that the judge is coming into the process with a closed mind, that their personal views will somehow influence how they apply the law.

That’s one of the reasons why, since I’ve been a judge, I’ve always been very careful about not doing that. And I think my record speaks more loudly than I can...


DURBIN: It does.

SOTOMAYOR: ... about the fact of how careful I am about ensuring that I’m always following the law and not my personal views.

DURBIN: Well, and the one death penalty case that you handled as a district court judge, United States vs. Heatley, this is after, in 1983, I believe it was or 1981, I’m sorry, that you signed on to the Puerto Rican Legal Defense Education Fund memo recommending that the organization oppose reinstituting the death penalty in New York.

After you’d done that, some years later, you were call on to rule on a case involving the death penalty. Despite the policy concerns that you and I share, you denied the defendant’s motion to dismiss and pave the way for the first federal death penalty case in Manhattan in more than 40 years.

Now, the defendant, ultimately accepted a plea bargain of life, and you rejected his challenge to the death penalty and found that he’d shown no evidence of discriminatory intent. So that makes your point. Whatever your personal feelings, you, in this case, at the district court level, ruled in a fashion that upheld the death penalty.

I guess I am trying to take it a step beyond. And maybe you won’t go to where I want to take you, and some nominees don’t. But I guess the question that arises in my mind is how a man like Justice Blackmun, after a life on the bench, comes to the conclusion that, despite all our best efforts, the premise of your 1981 memo is still the same; that, ultimately, the imposition of the death penalty in our country is too arbitrary. Minorities in America today account for a decision proportionate 43 percent of executions.

That’s a fact since 1976. And while white victims account for about one-half of all murder victims, 80 percent of death penalty cases involve victims who are white. This raises from obvious questions we have to face on this side of the table. I’m asking you if it raises questions of justice and fairness on your side of the table.


SOTOMAYOR: In the Heatley case, it was the first prosecution in the Southern District of New York of a death penalty case in over 40 years.

Mr. Heatley was charged with being a gang leader of a crack and cocaine enterprise who engaged in over -- if the number wasn’t 13, it was very close to that, 13 murders to promote that enterprise.
He did challenge the application of the death penalty charges against him on the ground that the prosecutor had made its decision to prosecute him and refused him a cooperation agreement on the basis of his race.

The defense counsel, much as you have, Senator, raised any number of concerns about the application of the death penalty. And in the response to his argument, I held hearings not on that question, but on the broader question of what had motivated -- on the specific legal question, what had motivated this prosecutor to enter this prosecution and whether he was denied the agreement he sought on the basis of race. I determined that that was not the case and rejected his challenge.

With respect to the issues of concerns about the application of the death penalty, I noted for the defense attorneys that, in the first instance, one back question of the -- the effects of the death penalty, how it should be done, what circumstances warrant it or don’t, in terms of the law, that that’s a legislative question.

And, in fact, I said to him -- I -- I acknowledged his concerns. I acknowledged that many had expressed views about that. But that’s exactly what I said, which is, I can only look at the case that’s before me and decide that case.

DURBIN: And this is a recent case before the Supreme Court I’d like to make reference to, D.A.’s Office vs. Osborne, involving DNA. It turns out there are only three states in the United States that don’t provide state legislative access to DNA evidence that might be -- might exonerate someone who is in prison.


I am told that, since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don’t quarrel with your premise that it’s our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, ‘We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence.’

So I ask you, either from the issue of DNA or from other perspectives, isn’t it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?

SOTOMAYOR: The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it’s difficult to answer a question about the role of the Court outside of the functions of the Court which is we don’t make broad policies. We decide questions based on cases and the principles implicated by that particular case before you.

DURBIN: I follow you, and I understand the limitations on policy-related questions that you are facing. So I’d like to go to another area relating to policy and ask your thoughts on it. We have, on occasion, every two years here, a chance to go across the street for a rather historic dinner. The members of the United States Senate sit do you know with the members of the U.S. Supreme Court. We look forward to it. It’s a tradition that’s maybe six or eight years old, Mr. Chairman. I don’t think much older.

LEAHY: Great tradition.

DURBIN: Great tradition. And we get -- we get to meet them. They get to meet us. I sat down with one Supreme Court justice, I won’t name this person. But I said at that time that I was character a crime subcommittee in Judiciary and said to this justice what topic do you think I should be looking into as a senator when it comes to justice in the United States.

And this justice said our system of corrections and incarceration in America. It has to be the worst. It’s hard to imagine how it could be much worse if we tried to design it that way. Today, in the United States, 2.3 million people are in prison. We have the most prisoners of any country in the world as well as the highest per capita rate of prisoners in the world.


In America today, African-Americans are incarcerated six times the rate of white Americans. Now, there’s one significant reason for this, and you have faced at least an aspect of it as a judge, and that is the crack powder disparity in sentencing. I will readily concede I voted for it as did many members of the House of Representatives frightened by the focus of this new, narcotic called crack that was so cheap and so destructive that we had to do something dramatic. We did.

We put a hundred to one ratio in terms of sentencing. Now, we realize we made a serious mistake. Eighty-one percent of those convicted for crack offenses in 2007 were African-American although only about 25% of crack cocaine users are African-Americans. I held a hearing on this, and a Judge Walton (ph), associate director of the Office of National Drug Control Policy testified. And he basically said that this sentenced disparity between crack and powder has had a negative impact in courtrooms across America.

Specifically, he stated that people come to view the courts with suspicion as institutions that mete out unequal justice and the moral authority of not only the federal courts but all courts as diminished.

DURBIN: I might say for the record that this administration has said they want to change this and make it 1 to 1. We are working on legislation in a bipartisan basis to do so. You faced this as a judge, at least some aspect of it. You sentenced Louis Gomez, a nonviolent drug offender, to a five-year mandatory minimum. And you said when you sentenced him, you do not deserve this, sir. I am deeply sorry for you and your family, but I have no choice.

May I ask you to reflect for a moment if you can beyond this specific case or using this specific case on this question of race and justice in America today? It strikes me -- it goes to the heart of our future as a nation and whether we can finally come to grips and put behind us some of the terrible things that have happened in our history.

SOTOMAYOR: It’s so unsatisfying, I know, for you and probably the other senators when a nominee to the court doesn’t engage directly with the societal issues that are so important to you, both as citizens and senators. And I know they are important to you because this very question you just mentioned to me is part of bipartisan efforts that you’re making.


And I respect that many have concerns on lots of different issues. For me as a judge, both on the circuit or potentially as a nominee to the Supreme Court, my role is a very different one. And in the Louise Gomez (ph) case, we weren’t talking about the disparity. We were talking about the -- the quantity of drug and whether I had to follow the law on the statutory minimum that Congress required for the weight of drugs at issue.

In expressing a recognition of the family situation and the uniqueness of that case, it was at a time when Congress had not recognized the safety valve for first-time offenders under the drug laws. That situation had motivated many judges in many situations to comment on the question of whether the law should be changed to address the safety value question then make a statement making any suggestions to Congress.

I followed the law. But I know that the attorney general’s office, many people spoke to Congress on this issue. And Congress passed a safety valve.

With respect to the crack cocaine disparity, as you may know, the guidelines are no longer mandatory as a result of a series of recent Supreme Court cases -- not so recent, but Supreme Court cases, probably almost in the last 10 years. I think the first one, Apprendi (ph), was in 2000, if my memory is serving me right -- or very close to that.

At any rate, that issue in -- was addressed recently by the Supreme Court in the case called U.S. vs. Kimbro (ph). And the court noted that the sentencing commission’s recommendation of sentences was not based on its considered judgment that the 100-to-one ratio was an appropriate sentence for this conduct. And the court recognized that sentencing judges could take that fact into consideration in fashioning an individual sentence for a defendant.

And, in fact, the sentencing commission in very recent time has permitted defendants who have been serving prior sentences in certain situations to come back to court and have the courts reconsider whether their sentences should be reduced in a way specified under the procedures established by the sentencing commission.


This is an issue that I can’t speak further about because it is an issue that’s being so actively discussed by Congress and which is controlled by law. But as I said, I -- I can appreciate why not saying more would feel unsatisfying, but I am limited by the role I have.

DURBIN: One last question I’ll ask you. I’d like to hear your perspective on our immigration courts.
A few years ago, Judge Richard Posner from my home state of Illinois brought this problem to my attention. In 2005, he issued a scathing opinion criticizing our immigration courts in America. He wrote, and I quote, ‘The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice,’ end of quote.

For those who don’t know this Judge Posner, he is an extraordinary man. I wouldn’t know where to put him exactly on the political spectrum, because I’m not sure what his next book will be. He has written so many books. He is a very gifted and thoughtful person.

In 2002, then-Attorney General John Ashcroft issued so-called streamlining regulations that made dramatic changes in our immigration courts, reducing the -- the size of the Board of Immigration Appeals from 23 to 11. This board stopped using three-member panels, and board members began deciding cases individually, often within minutes and without written opinions.

In response, immigrants began petitioning the federal appellate court in large numbers. In 2004, immigration cases constituted 17 percent of all federal appeals, up from 3 percent in 2001, the last year before the regulations under Attorney General Ashcroft.

I raised this issue with Justice Alito during his confirmation hearing, and he told me, and I quote, ‘I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I’ve been troubled by this.’


What has been your experience on the circuit court when it came to these cases? And what is your opinion of Judge Posner’s observation in this 2005 case?

SOTOMAYOR: There’s been four years since Judge Posner’s comments, and they have to be placed somewhat in perspective. Attorney General Ashcroft’s what you described as streamlining procedures have been by, I think, all of the circuit courts that have addressed the issue affirmed and given Chevron deference.

So the question is not whether the streamline procedures are constitutional or not, but what happened when he instituted that procedure is that, with all new things, there were many imperfections. New approaches to things create new challenges.

And there’s no question that courts faced with large numbers of immigration cases, as was the Second Circuit -- I think we had the second-largest number of new cases that arrived at our doorsteps, the Ninth Circuit being the first, and I know the Seventh had a quite significantly large number, were reviewing processes that, as Justice Alito said, left something to be desired in a number of cases.

I will say that that onslaught of cases and the concerns expressed in the number of cases by the judges in the dialogue that goes on in court cases with administrative bodies, with Congress resulted in more cooperation between the courts and the immigration officials in how to handle these cases, how to ensure that the process would be improved. I know that the attorney general’s office devoted more resources to the handling of these cases.

There is always room for improvement. The agency is handling so many matters, so many cases, has so many responsibilities making sure that it has adequate resources and training is an important consideration, again in the first instance by Congress because you set the budget.
In the end what we can only do is ensure that due process is applied in each case according to the law required for the review of these cases.


DURBIN: Do you feel that it’s changed since 2005 when Judge Posner said the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice?

SOTOMAYOR: Well, I wouldn’t -- I’m not endorsing his views because he can only speak for himself. I do know that in, I would say, the last two or three years the number of cases questioning the processes in published circuit court decisions has decreased.

DURBIN: Thank you very much. Thank you, Mr. Chairman.

LEAHY: Thank you very, very much, Senator Durbin. I have -- I have discussed this with Senator Sessions. And as I told him earlier, also with his -- at his request we would have a -- we haven’t finished the first round. But once we finish the first round of questions, we’ll have 20-minute rounds on the second. I’m going to urge senators that they don’t feel the need to use the whole round, just as Senator Durbin just demonstrated, that they not. But here will be the schedule.

We will break for today. We will have -- we will begin at 9:30 in the morning. We will finish the first round of questions. I’ll ask -- the last round will be asked by Senator Franken. And then we will break for the traditional closed door session with the -- with the nominee.

And so, for those who have not seen one of these before, we do this with all Supreme Court nominees. We have a closed session just for the nominee. We go over the FBI report. We do it with all of them. I think we generally say it’s routine. And we did it with Justice Roberts and -- or Chief Justice Roberts and Justice Alito and Justice Breyer and everybody else.

Then we’ll come back for a round of 20 minutes each. But during that round, I will encourage senators if they feel all questions have been asked -- I realize sometimes all questions may have been asked but not everybody has asked all of the questions -- that we try to ask, at least, something new so -- to keep up the interest.


And then -- and then we can determine whether we’re prepared, depending on how late it is, whether we can do the panels or whether we have to do the panels on Thursday. Is that...

SESSIONS: Thank you, Chairman Leahy. And I do think that the scheme you arranged for this hearing is good the way we’ve gone forward. I thank you for that. We’ve done our best to be ready and in a short timeframe. And I believe the members on this side are ready.

Talking of questions, there ain’t no harm in asking. Isn’t that a legal rule, to get people to reduce their time? But there’s still some important questions. And I think we will certainly want to use -- most members would want to use their 20 minutes. And then I appreciate that and look forward to being with you in the morning.

LEAHY: First when I asked the question I probably violated the first rule that I learned as a trial lawyer. You shouldn’t ask a question if you don’t know what the answer is going to be. But then I also have that other aspect where hope springs eternal. And as we have a whole lot of other things going on in the Senate, I would hope we might.

And, Senator Cardin and Senator Whitehouse and Senator Klobuchar, Senator Specter and Senator Franken, I am sorry that we didn’t get to you yet. But we will before we do the closed session. Judge, thank you very much.

SOTOMAYOR: Thank you.

LEAHY: We stand in recess. ### (End of testimony, July 14, 2009)