Opinion: Sotomayor hearings: The complete transcript -- Day 4, Part 3
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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.
The links to all the senators’ statements and each portion of each day’s testimony are available at the bottom of this item.
Keep checking back here for new updates throughout the hearing and see the variety of items our Ticket writers are producing for you by scrolling up and down.
-- Andrew Malcolm
Continuation of testimony before Senate Judiciary Committee:
LEAHY: Senator Specter is recognized for up to 20 minutes.
SPECTER: Thank you, Mr. Chairman. Judge Sotomayor, you have been characterized as running a hot courtroom, asking tough questions. What we see popping out of the Supreme Court opinions from....
...time to time, statements about pretty tough ideological battles in their conference room. Justice Scalia was quoted as saying, “The court must be living in another world. Day by day, case by case it is busy designing a Constitution for a country I do not recognize.”
to a woman’s right to choose in Roe v. Wade, he said this, quote, “Justice O’Connor’s assertion that a fundamental rule of judicial restraint requires us to avoid reconsidering Roe to not be taken seriously.” Do you think it possible that, if confirmed, you will be a litigator in that conference room, take on the ideological battles which pop out from time to time from what we read in their opinions?
SOTOMAYOR: I don’t judge on the basis of ideology. I judge on the basis of the law and my reasoning. That’s how I have comported myself in the circuit court. When my colleagues and I, in many cases, have initially come to disagreeing positions, we’ve discussed them and either persuaded each other, changed each other’s minds and worked from the starting point of arguing, discussing, exchanging perspectives on what the law commands.
SPECTER: Well, perhaps you’ll be tempted to be a tough litigator in the court. Time will tell, if you are confirmed, if you have some of those provocative statements.
Let me move on to a case which you have decided. You have been reluctant to make comments about what other people have said. But I want to ask you about your view as to what you have said. In the case of Entergy v. Riverkeeper, which involved the question which is very important to matters now being considered by Congress on climate control and global warming, you ruled in the 2nd Circuit that the best technology should be employed, not the cost-benefit.
The Supreme Court reversed five-to-four saying it was cost benefit. Could we expect you to stand by your interpretation of the Clean Water Act when, if confirmed, you get to the Supreme Court and could make that kind of a judgment because you’re not bound by precedent?
SOTOMAYOR: Well, I am bound by precedent to the extent that all precedents is entitled to the respect it -- to respect under the doctrine of stare decisis. And to the extent that the Supreme Court has addressed this issue of cost benefit and its permissibility under the Clean Water Act, that’s the holding I would apply to any new case that came. And the framework it established is the framework I would employ to new cases.
SPECTER: Let me return to a subject I raised yesterday but from a different perspective. And that is the issue of the Supreme Court taking on more cases. In 1886, there were 451 cases decided by the Supreme Court, in 1985, 161 signed opinion, in 2007, only 67 signed opinions. The court has not undertaken cases involving circuit splits.
In the letter I wrote to you, which will be made a part of the record, listing a great many circuit splits and the problems that that brings when one circuit decides one day, another circuit another, and the other circuits are undecided and the Supreme Court declines to take cases.
Do you agree with what Justice Scalia said, dissenting in (inaudible), where the court refers to take a key circuit split that when the court decides not to, quote, “it seems to me, quite irresponsible to let the current chaos prevail with other courts not knowing what to do”? Or stated differently, do you think the Supreme Court has time to and should take up more circuit splits?
SOTOMAYOR: It does appear that the Supreme Court’s docket has lessened over time, its decisions that it’s addressing. Because of that, is certainly does appear that it has the capacity to accept more cases. And the issue of circuit splits is one of the factors that the court’s own local rules set out as a consideration for justices to think about in the cert process. So in answer to your question, the direct answer is, yes, it does appear that it has the capacity.
SPECTER: The current rule in the Supreme Court is that petition for certiorari are applied, and there is a so-called cert pool where the -- seven of the nine justices, excluding only Justice Stevens and Justice Alito, do not participate in the cert pool so that they -- people applying for cert don’t have the independent judgments.
When Chief Justice Roberts was -- before he became chief justice, he said that the cert pool’s powers of little disquieting. Would you join the cert pool? Or would you maintain an independent status as Justice Stevens and Justice Alito do in having their own clerks and their own individual review as to whether cert ought to be granted?
SOTOMAYOR: I would probably do what Justice Alito did, although, I haven’t decided if I’m given the honor of becoming a member of the Supreme Court. I haven’t decided anything. I’m not even sure where I would live in New York if this were to happen -- in Washington.
But putting that aside, Senator, my approach would probably be similar to Justice Alito, which is experience the process, take, for a period of time, consider its costs and benefits, and then decide whether to try the alternative or not and figure out what I think works best in terms of the functioning my chambers and the court.
I can’t give a definitive answer because I generally try to keep an open mind until I experience something and can then speak from knowledge about whether to change it or not.
SPECTER: Judge Sotomayor, you have had some experience on the pilot program conducted by the judicial -- federal judicial conference. And these were the conclusions reached by the pilot program. They said, quote, “Attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program.”
Quote, “Judges and attorneys who had experience with electronic media coverage under the program generally reported observing a small or no effects of the camera presence on participants in the proceedings, courtroom decorum, or the administration of justice.” Would you agree with that based on your own personal experience having television in your courtroom?
SOTOMAYOR: My experience was limited, so I can’t speak to the more broad conclusion of that report. I can say that as I -- as we discussed when I met with you, Senator, mine was positive.
In the two cases -- I believe I only had two cases where the camera -- where the media asked to record a proceeding. I may not remember others, but I do remember two. And on the circuit court, we do provide tapes upon request, and some -- some media have asked to record our oral arguments.
But my experience has generally been positive, and I would certainly be able to recount that.
SPECTER: C-SPAN has conducted a survey which shows that 61 percent of the American people would like to see the Supreme Court televised. And in the survey, it disclosed how little the American public knows about the Supreme Court. Mr. Chairman, I’d ask consent this be included in the record.
LEAHY: Without objection, it will be included in the record.
SPECTER: The interest that has been generated by this confirmation proceeding, encouraged by the television, shows the enormous interest that people have in what the court does. And there has been a fair amount of coverage by the justices on television, as I cited yesterday. Many have appeared on television. Justice Kennedy says he believes the television is inevitable.
Everybody has said who’s testified that there’s a grave concern about the collegiality, and people do not want to make a judgment before talking to their colleagues. And the sense has been derived that if anybody really has a strong objection -- and Justice Souter has expressed that view, as noted on his widespread comment that if cameras -- if TV cameras were to come to the court, they’d have to come in over his dead body.
And if confirmed, Justice Souter’s body won’t be there at all. Would you tell your colleagues the favorable expression -- experience that you’ve had with television in your courtroom and perhaps take a role in encouraging your colleagues to follow that experience for the Supreme Court?
SOTOMAYOR: I would certainly relay my experiences. To the extent some of them may not know about the pilot study in many courts, I would share that with them, although I do suspect they do know, and will participate in discussions with them on this issue. And those things I would do, Senator.
SPECTER: Some of my colleagues have questioned whether, as you stated, your panel in the Maloney case was really bound by Supreme Court precedent. The Seventh Circuit reached the same decision your panel did.
And in that opinion written by a highly respected Republican judge, Frank Easterbrook, the Seventh Circuit pointed out that Heller specifically declined to reconsider older Supreme Court cases which have held that the Second Amendment applies only to the federal government. Judge Easterbrook wrote, quote, “That does not license the inferior courts to go their own way. It just notes that the older precedent is open to reexamination by the justices themselves when the time comes.” That was your court’s conclusion also, wasn’t it?
SOTOMAYOR: It was. And I understand, having reviews Justice Easterbrook’s opinion, that he agreed with the reasoning of Maloney on that point.
SPECTER: I want to return to the issue of basic authority, responsibility of the Supreme Court to decide the major cases on separation of power. There was a case which the Supreme Court denied certiorari just a couple of weeks ago involving claims for damages brought by survivors of victims of September 11th against certain individuals in Saudi Arabia. And this case posed a classical conflict between executive and legislative responsibilities.
Congress had legislated under sovereign immunity in 1976 that tort claims like flying an airplane into the World Trade Center were an exception of sovereign immunity, and the executive branch interposed objections to having that case decided because of the sensitivity of matters with Saudi Arabia. And the case involved circuit splits and very, very important matters in that tragedy which you’ve commented reached you, being very close to the incident.
Don’t you think that that’s the kind of a case the Supreme Court should have heard to decide that kind of a very basic conflict between Article I powers of the Congress and Article II powers of the executive?
SOTOMAYOR: Senator, obviously issues related to September 11th and national security are very important issues to the country as a whole. For the reasons I mentioned earlier, I lived through September 11th, so I understand its great tragedy and effect on America. The question you ask me, though, is one that asks me to make judgment about an act the Supreme Court has done. And I didn’t participate in their discussions. I didn’t review the cert petitions. I didn’t talk about with them their reasons. It would seem, and is, inappropriate to me to comment on a question that I wasn’t a party to in making the decision.
SPECTER: Well, wouldn’t you at least agree with the proposition that conflicts between the Congress and the executive branch are of the highest duty for the Supreme Court to consider and to decide?
SOTOMAYOR: The -- all conflicts under the Constitution, all issues arising from the Constitution are important.
SPECTER: Well, I know that, but that’s a pretty easy question to answer. I’m not asking you to agree with Justice Roberts that the court ought to take more cases, which seemed to me to be pretty easy, or a question about Justice Scalia saying that there’s turmoil when the circuit split.
And you don’t have the Supreme Court taking cert, but isn’t that of the highest magnitude? Our discussions here have involved a great many issues, but I would suggest to you that, on separation of powers and when you undertake the role of the Congress contrasting with the role of the president, Congress is Article I. It was placed with primacy, because we’re closest to the people.
And when you have a question which you wouldn’t comment on yesterday, like the terrorist surveillance program, which flatly contradicts the congressional enactment on Foreign Intelligence Surveillance Act, that the only way you’d get a wiretap is with court approval, and the case is declared unconstitutional in the Detroit district court, and the Sixth Circuit dodges the case on standing with very questionable grounds, and the Supreme Court won’t even hear it, and you have a case involving September 11th and a very blatant conflict between Congress powers expressed under Article I with the sovereign immunities act, and the president is stepping in under foreign powers, isn’t -- isn’t that a category of the highest magnitude?
SOTOMAYOR: It is so difficult to answer that question in the abstract. For the reason I’ve just explained, the issue is much, much more complicated than an absolute that says, if a case presents this question, I’m always going to take it.
That’s not how a judge looks at the issue of granting or not granting certiorari, I assume, because the fact is weighing so many different factors at the time that decision is made. I...
SPECTER: Judge, I don’t want to interrupt you, but I’ve got a minute-and-a-half left and a couple of comments I want to make in conclusion.
I would ask you to rethink that. And I would also ask you to rethink the issues you didn’t want to answer yesterday about conflict between the Congress and the court.
Even though the Constitution made Congress Article I and the president Article II, the Supreme Court has really reversed the order. The judiciary is now really in Article I, if the powers were to be redefined.
And I’d ask you to take a look -- you have said repeatedly that the job of the court is to apply the law, not to make the law. And take a look again at the standard of proportional and congruent and see if you don’t agree with Justice Scalia that that’s another way for the court to make law.
And take a look, too, at what Justice Roberts said here in the confirmation hearings, that there would be deference and respect for congressional fact-finding, how that is not done in the Garrett case and in the voting rights case.
SPECTER: And out of consideration for the people who are going to appear here later on, I’m not prepared yet to announce my own vote, but it is my hope that -- and the conventional wisdom is very strong for your confirmation -- that you’ll use some of those characteristics of your litigation experience to battle out the ideas that you believe in, because I have a strong hunch that they’re closer to the ones that I would like to see adopted to the court.
And don’t let the issues of separation of powers skip by. The Congress is entitled to deference on these big issues, and at least they ought to be decided by the court. Thank you very much, Judge Sotomayor. You’ve done quite an outstanding job as a witness. Thank you, Mr. Chairman.
LEAHY: Thank you, Senator Specter. And, Judge, we’re going to take a -- we’re going to take a short break. And thank you for all this. When we come back, we’ll go to -- we’ll recognize Senator Coburn, who’s next. Thank you.
LEAHY: Judge, thank you. And I do want to -- I do want to thank the press for cooperating. We’ve tried to make it as possible for TV and print and Congress. And, Your Honor, you’ve been very gracious in that regard. And now I think we’re coming close to the end of this round.
it will be the last round or not will be up to the Republican side. But I would yield now to Senator Coburn, who’s been waiting patiently. Senator Coburn?
COBURN: Thank you, Mr. Chairman, and good morning again.
SOTOMAYOR: Good morning, sir.
COBURN: Yesterday, you -- when I was asking you about foreign law, you said I should read your speech, so I did. I read your speech. So I want to come back to that for a minute, because I want to ask you the same question I’ve asked the only other two Supreme Court nominees that have come before the committee while I’ve sat on this committee.
And I want to ask you the same question. I -- my first statements yesterday was asking about whether you disagreed with Alito and Thomas, and you said basically you agree. So on the basis of that agreement, will you affirm to this committee and the American public that, outside of where you are directed to do so through statute or through treaty, refrain from using foreign law in making the decisions that you make that affect this country and the opinions that you write?
SOTOMAYOR: I will not use foreign law to interpret the Constitution or American statutes. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.
COBURN: Thank you. I want to ask you, also, another question that I asked both Justice Alito and Justice Thomas, and it’s a problem I have with my colleagues here in the Senate. You’ve written extensively about some of the ambiguity that is in law. Would it be your opinion that we could do a much better job, maybe much clearer about what our intent is, when we write statutes? And feel free to offend us all, because we sorely need it. (LAUGHTER)
(UNKNOWN): Senator Coburn, speak for yourself. (LAUGHTER)
COBURN: I’m speaking for the vast majority of American people. We do not do a thorough job in making clear our intent or the background of our intent when we send it.
And I’ll give you an example, then. Two hundred and twenty times in the bill that just came out of the HELP Committee, we gave full shrift to the Secretary of HHS to write all the regulations without our intent, none of our intent. So you’re -- as you sit -- if you sit -- on the Supreme Court, I’m sure many of those are going to come before you without our intent, but with a bureaucracy’s intent or an executive branch intent.
So the question I’m -- ask you, in your experience, since you’ve noted the ambiguity that’s in the law, would you make it a recommendation to your friends you’ve now established, all 19 of us on the Judiciary Committee, that we might do a better job of being much more clear in what we intend?
SOTOMAYOR: It would be presumptuous of me to tell you how to do your job, but I do know, in my conversations virtually with all 89 senators, perhaps not all of them, but the vast majority of them, somewhere in the conversation, there was reference to their feelings like yours that a better job could be done by Congress in making its intent clearer.
I think that that’s a question that senators think about, or at least the ones that I’ve spoken to. And I think that the process is always bettered for a court when Congress’s intent is more clearly stated.
COBURN: Yes. And there’s no doubt in your mind that, if we were much more clear, guidance would be better given to the Supreme Court as conflicts over the statutes and laws come forward.
SOTOMAYOR: When Congress’s intent is clear, the court applies that clear intent.
COBURN: Thank you. I want to go back to a couple of other areas that we talked about. One is -- is some answers to questions that you gave to -- questions from Senator Hatch.
Senator Hatch asked you to describe your understanding of the test or standard that the Supreme Court uses to determine whether a right should be considered fundamental. Specifically, he noted that, when determining whether a right is fundamental, the Supreme Court determined whether the right is deeply rooted in our nation’s history and tradition, that it is necessary to an Anglo-American regime of ordered liberty, or that it is an enduring American tradition.
You refused to answer him, asserting that you responded that you haven’t examined that framework in a while to know if that language is precise or not. “I’m not suggesting it’s not,” you said, “Senator. I just can’t affirm that description.”
Similarly, you refused to describe to me the test the court used to determine whether a right is a fundamental right.
But in contrast to that, when Senator Kaufman asked you to give a very detailed description of the factor the courts consider when determining the doctrines of stare decisis, you stated and went through a long litany of the items with which the court uses with which to determine stare decisis. And you gave a fairly detailed analysis of that process and the doctrine of stare decisis.
And so I ask you again: Why can’t you give us your description of what you think the parameters are that the court uses to determine a fundamental right, in light of the 14th Amendment, incorporation right?
SOTOMAYOR: All right. That language has been used in certain cases respecting the question of the incorporation of certain amendments. The question of -- and the general framework will be used with respect to any consideration of -- of incorporation.
That wasn’t, I thought, the question that was being asked of me. I don’t remember that being the specific question. All I’m saying to you is that the framework has been discussed by the court. In jurisprudence, it’s developed over the last hundred years, subsequent to its established precedents on the Second Circuit.
One of the questions that the court will address, if it decides to address the incorporation of the Second Amendment, is whether, in those related areas, it will use or not use the doctrines or framework of that precedent. There may be arguments on one side why, on another side why not. What I’m trying to do is not prejudge an issue...
COBURN: Well, I’m not...
SOTOMAYOR: ... that is still pending before the court.
COBURN: ... asking you to prejudge the issue. I’m asking you under what basis -- what is the -- what are the steps and the considerations, not the details of the case -- but, in other words, you can describe that for us in terms of stare decisis, but you can’t describe that for us in terms of a fundamental right.
And to me, that’s concerning, because we should understand -- and that should be transparent to the people in this country, how that works.
SOTOMAYOR: Because that’s the very issue the court’s going to look at. The question of stare decisis is a general framework that one uses not in a particular context of a case I’m going to choose always to look at the outcome of the case in this way. It’s...
COBURN: Your Honor, I understand that. If I can’t get you to go there, I want to quit and go on to something else, if I can. I also asked you yesterday -- I want you to understand. You were raised in the Bronx. I was born in Wyoming and raised in Oklahoma. They’re really geographically and culturally. Different areas. And so I want you to understand why I’m spending so much time talking with you about the Second Amendment.
My constituents in Oklahoma understand, as do most Americans, that the right to own guns hangs in the balance. It may very well hang in the balance with your ascendancy to the Supreme Court. For us, one wrong vote on what we consider -- regardless of what you consider -- but what we consider a fundamental right could get the holding of Heller.
And I have some serious concerns on that issue. And I want to ask you a few more questions.
Yesterday, you said that, clearly, a constitutional right only works if you can enforce it. And I agree. Tell me how American citizens would be able to enforce their individual constitutional right to bear arms if you’re holding that it does not apply to the states in your previous case as the appellate level becomes the law of the land?
SOTOMAYOR: The only statement I can start with is Maloney was decided on the basis of precedent. It was decided on precedent the Supreme Court, in Heller, recognized as its precedent. It was based on Second Circuit precedent that had interpreted the constitutional -- the Supreme Court’s prior precedent. It may well be, may not be, that Senator Hatch was right that the old precedent should be distinguished in a certain way. Others may be right that it shouldn’t.
That issue was not the one the Maloney court decided Maloney on. It decided it on the rule of law. It was the rule of law that led Judge Easterbrook in the Seventh Circuit decision to say not what we should be doing, it’s what the Supreme Court should do is to reexamine a precedent that’s directly on point.
I can assure your constituents that I have a completely open mind on this question. I do not close my mind to the fact and the understanding that there were developments after the Supreme Court’s rulings on incorporation that will apply to this question or be considered. I have a completely open mind.
COBURN: Do you not consider it ironic that the majority of the debate about the 14th Amendment in this country was about the taking of guns from freed slaves? Is that not ironic that we now have some kind of conflict that we’re going to say that the whole reason in the debate about the 14th Amendment originated from states taking away the rights of people’s fundamental right to defend themselves? Is that not an irony to you?
SOTOMAYOR: Senator, would you want a judge or a nominee who came in here and said, I agree with you; this is unconstitutional before I had a case before me, before I had both sides discussing the issues with me, before I spent the time that the Supreme Court spent on the Heller decision -- and that decision was mighty long. It went through two years of history, did a very thorough analysis and discussion back and forth on the prior opinions of the court. I don’t know that that’s a justice that I can be.
SOTOMAYOR: I can only come to this...
COBURN: I agree with you, your honor. I don’t want you to tell us how you’re going to rule. But I asked you, isn’t it ironic that in this country where our law comes from Blackstone forward, comes from English law, which our founding was perpetrated and carried out under this fundamental right, and that we have the 14th Amendment right, and that we have through legal -- what I would consider as a physician -- schizophrenia have decided that we can’t decide whether this is a fundamental right.
I’ll finish with that point, other than to note the Presser reference was to privilege and immunity, not due process.
SOTOMAYOR: I understand the importance of the right. It was recognized in Heller. And all I can continue to say, Senator, is I keep an open mind on the incorporation doctrine.
COBURN: I appreciate that, your honor. Thank you very much. Let me go back to an area that I know is -- not everybody wants to hear about, but I think it’s important. I asked you about where we were in terms of settled law on Roe and Doe, and -- and today I only want to focus on Roe and Doe, not Casey.
What was the state the law, say, in 1974, one year after Roe? What was -- where did we stand in that issue?
SOTOMAYOR: That women have the right to terminate their pregnancy in some situations without government regulation, and in others there would be permissible government regulation.
COBURN: Let me -- did any of the...
SOTOMAYOR: That’s generally, because the court did look at other questions in terms of government regulation.
COBURN: Then let me ask you this. Did any of the laws of the 50 states regulating abortion survive the decision in Roe?
SOTOMAYOR: I don’t know that I could answer that question, because I don’t...
COBURN: OK. That’s -- that’s fair. They didn’t. Was there any limit to the right to abortion either in the age of the child in the womb or the reasons for electing that surgery? And if so, what are those limits, according to Roe and Doe?
SOTOMAYOR: I -- Senator, I don’t actually remember the court addressing that, because my studies have been on the undue burden test established in Casey. So my experience in this area or my knowledge, really, has been most particularly concentrated on the Casey standard, which is...
COBURN: I understand that.
SOTOMAYOR: ... what Casey did was change the Roe standard.
COBURN: Which goes back to why I asked you those two hypothetical -- not abstract, but hypothetical cases yesterday, the 28-week and a 38-week infant, for the -- the truth is, ever since January 22, 1973, you can have an abortion for any reason you want in this country. And even though Carhart II has now been ruled, that’s -- a procedure that will eliminate that pregnancy is still legal and viable everywhere in this country.
COBURN: And so what I was trying to draw out to you is, where do we stand in this country, when 80 percent of the rest of the world allows abortion only before 12 weeks, only before 12 weeks? And yet we allow it for any reason at any time for any inconvenience under the health-of-the-woman aspect.
And that’s the other reason why I raised the viability because technology and the state’s interest under the Supreme Court ruling starts with viability. That’s when a state can have interest. It’s guaranteed, and there’s limited ability states can have to control that after that.
Is the Casey ruling, the undue burden ruling test, is that a policy choice? I know it’s the supreme law of the land today, but in your mind, would that represent a policy choice?
SOTOMAYOR: I understood that that was the court’s framework for addressing both the woman’s right to terminate her pregnancy under the Constitution and the state’s rights to legislate and regulate in areas within its jurisdiction. So it was the court’s way of attempting to address those two interests.
COBURN: And Justice Ginsberg’s not real happy with those tests and neither was -- neither are several other members on the court.
I want to end up. Our conversation, when we had a private conversation, I approached you about the importance of the cases that you decide to take if you’re on the court. Let me ask you a few questions, and I just want your opinion, and I’m not trying -- this is not to put you in any box, and if you think it is, please say so -- you’re trying to put me in a box.
Do you believe that the court’s abortion rulings have ended the national controversy over this issue?
COBURN: OK. You don’t have to name them, but do you think there are other similarly divisive issues that could be decided by the court in the future?
SOTOMAYOR: That, I can’t answer.
COBURN: I don’t want you to name any. I’m just saying, as you think through your mind, do you think there are other similarly divisive issues that are -- that we could have that would divide the country so remarkably? You know, assisted suicide, euthanasia...
SOTOMAYOR: I can only answer what exists. People are very passionate about the issues they believe in. And so almost any issue could find an audience or a part of our population that’s fervent about it.
COBURN: Which is a great answer because, on these divisive issues, is it better that the court decides them or elected representatives? If you find a preference, if you were king tomorrow and you said we’re going to decide this either in the Supreme Court or make -- force Congress to make the decision, which would you think would be better for us?
SOTOMAYOR: In the first instance, it’s always Congress or a state passing regulation that the court is reviewing and determining whether it complies with constitutional limits. So it’s not a choice of either or.
It’s always Congress’ first interest or the state legislators’ first interest with the non-veto of a...
COBURN: I’ve got 30 seconds left. I want to ask you another question. You said just a minute ago people are passionate about what they believe in. And I’ve read your speeches and your publications, and I believe you’re passionate. And I believe your speeches reflect your passions.
I look at myself. And when I give a speech, you know, I let it all go, what I really believe. I’m more measured -- some people wouldn’t believe that -- up here, but I am more measured when I’m here, but when I give a speech.
And the problem I’m having is, I really see a dissonance about what you said outside of your jurisprudence. And the only thing -- the only -- the only ability we have to judge is what that passion has relayed in the past and your statements here, in combination with your judicial practice.
And so you are an admirable judge, an admirable woman. You have very high esteem in my eyes for both your accomplishments and your intellect. I have yet to decide where I’m going on this, because I am still deeply troubled because of the answers that I couldn’t get in the 50 minutes that I’ve been able to ask and also deeply troubled because I believe what you’ve spoken to the law students, what you’ve spoken in your writings truly reflect your real passions, which I sometimes find run in conflict with what I think the Constitution has to say.
But I thank you for giving us such a cordial response, and I am mightily impressed. Thank you, Mr. Chairman.
LEAHY: Thank you, Senator.
SOTOMAYOR: Thank you, Senator.
LEAHY: Senator Coburn, the Republican side has asked for a third round of those who want to have another 10 minutes, and so you will have a chance for more questions if you wish, because I’m trying to be fair to both sides, and I’ll allow that.
Before we go to Senator Franken, though, and -- and while you’re still here, Senator Coburn, I had reserved about 10 minutes of my time, just used a minute or so of it.
You spoke about the Second Amendment, which is a significant issue. And it is one people care about. You spoke about gun owners out west and your life in both Wyoming and in Oklahoma.
I look at that, of course, because both Wyoming and Oklahoma have more restrictive gun laws than my own state of Vermont. I could say that virtually every state has more restrictive gun laws than we do in Vermont.
I’ve been a gun owner since my early teens. I have -- I target shoot at my home in Vermont as a way of relaxation all the time, own numerous weapons, handguns and long guns.
I have not heard anything or read anything in the judge’s writings or speeches that would indicate to me that in any way I have to worry that Vermont gun owners -- and many Vermonters are gun owners, it’s just a way of life -- that that’s going to change.
It’s not going to change for me. It’s not going to change for weapons my two sons, one a former Marine, own. And I will still be -- if Judge Sotomayor is on the Supreme Court, I expect I’ll still be back at my home, and you’re welcome any time you’d like to come, and go target shooting -- and go target shooting with me there.
SESSIONS: Mr. Chairman, I would just say briefly that -- but it is a real pivotal time we are in, because if the decision by Judge Sotomayor becomes law, any city -- maybe not Vermont -- but any city or state in America could virtually, I believe, fully ban all firearms, and that’s just the way we are, and you may -- we can discuss how much precedent had to bound you to reach that conclusion.
But this is not a little bitty issue. It’s very important right now.
LEAHY: But states made laws that they’ve gone along. Vermont has decided not to have the restrictive laws that you have in Alabama, and -- but states have made up their mind. Senator Franken?
FRANKEN: Thank you, Mr. Chairman. I have a letter here from several former U.S. attorneys from the Southern District of New York, some of them Republican-appointed and supporting the Judge’s confirmation, and I’ll read a little bit from it.
She -- says that each had personal experience, including appearing before Judge Sotomayor. “She came to our cases without any apparent bias, probed counsel actively with insightful and, at times, tough questions, and demonstrated time and again that she not only listens but is often persuaded by counsel. In our matters, Judge Sotomayor’s opinions reflect clear discipline and” -- you know, it’s great. It’s a great letter. And I would ask that it be entered into the record. Sir, can I enter into the record?
FRANKEN: OK. Thank you. Thank you, Judge Sotomayor, for your patience and your terrific answers. We’ve heard a lot about your thoughts on specific cases and on principles of jurisprudence. I’d like to ask a much more general question, and one that I think is a really good question in job interviews. And that is, “Why do you want to be a Supreme Court justice?”
SOTOMAYOR: You’re going to hate me for taking a few minutes, but can I tell you a story?
FRANKEN: I would love it.
SOTOMAYOR: Because it will explain who I am and why.
When Senator Moynihan first told me that he would consider sending my name to Senator D’Amato for consideration as a district court judge, he asked me to keep it quiet for a little bit of time, and I asked permission to tell my mom and Omar. He said, “Sure.”
So, they were visiting, and I told them, and mom was very, very excited. And she then said, “How much more money are you going to earn?” And I stopped and I said, “I’m going to take a big pay cut.”
Then, she stopped and she stopped, and she said, “Are you going to do as much foreign travel as you do now,” because I was flying all over the U.S. and abroad as part of my private practice work. And I said, “Probably not, because I’m going to live in a courthouse in Lower Manhattan near where I used to work as a Manhattan D.A.”
Now, the pause was a little longer, and she said, “OK.” Then, she said, “Now, all the fascinating clients that you work with,” and you may have heard yesterday I had some fairly well known clients, “You’re going to be able to go traveling with them and with the new people you meet, right?” And I said, “No. Most of them are going to come before me as litigants to the cases I’m hearing, and I can’t become friends with them.”
SOTOMAYOR: Now the pause was really long, and she finally looked and she says, “Why do you want this job?” And Omar, who was sitting next to her, said, “Celina, you know your daughter”-- this is in Spanish -- “You know your daughter.” This is in Spanish. “You know your daughter and her stuff with public service.” That really has always been the answer.
Given who I am, my love of the law, my sense of importance about the rule of law, how central it is to the functioning of our society, how it sets us apart, as many senators have noted, from the rest of the world, have always created a passion in me, and that passion led me to want to be a -- a lawyer first and now to be a judge, because I can’t think of any greater service that I can give to the country than to be permitted the privilege of being a justice of the Supreme Court.
FRANKEN: Thank you. Well, I, for one, have been very impressed with you, Judge. And I certainly intend to support your confirmation for the court. I guess there is another round. I thought I was going to be the only thing between you and the door, so I -- I -- I plan to just yield my -- all the rest of my time. But since I’m not, I’d like to ask you some -- no, I’m going to yield the rest of my time, if that’s OK.
LEAHY: Thank you. Thank you very much, Senator Franken. I will reserve my time. We’ll have -- as Senator Sessions has asked us -- 10-minute rounds. I think they’ll be primarily on the Republican side. I may speak again when they finish. But we’ll begin with you, Senator Sessions.
SESSIONS: Thank you. Thank you, Chairman Leahy. I believe we’ve tried to meet our goal. I had a goal at the beginning that people would say this is one of the most fair and effective hearings we’ve ever had. I hope that has been the case.
It’s a great issue, the choice of putting someone on the United States Supreme Court. And our nominee has a wonderful group of friends and a long and distinguished record, but a number of questions arose that are important.
The American people rightly are concerned that on important social issues that are not clearly stated in the Constitution, on important legal issues not clearly stated in our law, seem to be decided by unelected, lifetime-appointed courts. Those are big, big issues that we’ve discussed here today I hope in a way that’s healthy and positive.
Judge, one thing I will ask you -- I asked Justice Roberts. I’m not sure how much good it did, because he came back asking for a pay raise the next week, I think. But can you live on that salary that you’re paid? We have the largest deficit in the history of the republic. A lot of people are going to have to tighten their belts. And are you prepared to do so, also?
SOTOMAYOR: I’ve been living on the salary for 17 years, so I -- I will suffer through more of it. It is difficult for many judges. The pay question is a significant one for judges who haven’t received pay raises -- I think it’s more than 20 years now, if I’m not mistaken.
SESSIONS: Well, you’re saying pay raises based on -- they’re getting pay raises almost every year, really, and the cost of living and that kind of thing. There was a big pay raise about 20 years ago. I think that it’s about four times the average family income in America. I hope that you can live on it. If not, you probably shouldn’t take the job.
All judges, whether they’re activists or not, if asked, are going to say they follow the law. They just have a different view of the law; they just have a little -- a more looser interpretation of the law. So that’s why we’ve pressed some of these issues. We want to determine as best we can just how tightly you believe you’re bound by the law and how much flexibility you might think that you have as a judge to expand the law to suit, perhaps, a predilection in some policy area or another.
Attorney General Holder recently said that he thought we lacked courage in discussing the race issue, and I think that’s something that we should take seriously. That was a valid comment.
In my opinion, we’ve had a higher level of discussion of that issue than -- since I’ve been in this committee. And I hope we’ve done it in a way that’s correct, because this is so sensitive, and it’s so important, and we need to get it right, and we must be fair to everybody.
We know that there are cases when people have been discriminated against. They are entitled to a remedy. And the Supreme Court has been quite clear that, when you can show a history of discrimination -- and we’ve had that not just in the South, but in the South -- the jurisprudence has developed that it’s appropriate for a judge to have a remedy that would encourage a move forward to a better opportunity those who’ve been held back. So that’s good.
But the Supreme Court has also said that this is a dangerous philosophy, because, when you do that, you’ve identified one racial group and you’ve given them a preference over another. So it can be done in a legitimate way that’s remedial.
And we still have vestiges of discrimination still in our society, and there will still be needs for remedial remedies. But I do think, as Justice Roberts said, the best way to end discrimination is quit doing it, and a lot of our orders in court decisions are such that they benefit one race over another solely because of their race. And it has to be tied to a remedy.
And that’s why the Supreme Court has made clear that, when you do that, it must meet the highest scrutiny. The courts are supposed to review that very carefully, and the language they use is strict scrutiny. You don’t favor one group over another without meeting that high standard.
So I’m -- I’m glad we’ve begun to discuss that, and we’ll have the firefighters, and they’ll be able to express their view on it in a little bit.
And, Judge, let me just say, before I go forward, that you’ve done a good job. You’ve had a good humor. You’ve been direct in your answers, and we appreciate that. I will not support and I don’t think any member of this side will support a filibuster or any attempt to block a vote on your nomination. It’s a very important vote. We all need to take our time and think it through and cast it honestly, as the occasion demands. But I look forward to you getting that vote before we recess in August.
Let me discuss -- Judge, I’ll just express this as we go forward. In your handling of the Ricci case, I think it’s fair to say that it was not handled in the regular order. You said in your opening statement that the “process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position sympathetic or not is accepted or rejected. And that is how I seek to strengthen both the rule of law and faith in the impartially of our justice system,” close quote.
I think that’s a good statement, but I think what the panel did in this case did not meet that standard. I think it was action -- I would conclude, fairly I think -- contrary to the rules of the Second Circuit. Rule 32.1 says that summary orders are only appropriate where, quote, “a decision is unanimous and each judge of the panel believes no jurisprudential purpose would be served by an opinion.”
And your clerk of your court there to the New York Times said this order, quote, “ordinarily issues when determination of the case revolves around well-settled principles of law.”
And I would note that it was not a per curiam opinion at first. It was a summary order, which is even less of an impactful decision than the other.
But I think the Supreme Court made clear and I think most Americans understand that the firefighters case was more than that. It was a -- it had tremendous jurisprudential impact. And I think you were wrong to attempt to use the summary order, which, because it was objected to within your circuit, which resulted in a pretty roaring debate and discussion, and that you went forward, that you then did it in a per curium way, which at least gave it a little higher credence, but you did not write the -- an in-depth opinion at all. In fact, it was still a per curiam and short opinion.
And I understand, according to some of the writers, that Judge Sack, New York Times, I believe, quoted by Stuart Taylor in National Journal, that -- that he was the most reluctant to join the opinion. Judge Pooler was in the middle. And I guess it didn’t reference the third judge, but apparently you were the third judge they were pushing for this kind of result.
Did you fail to show the courage that Attorney General Holder has asked us to show and discuss this issue openly with an in-depth opinion? And wouldn’t we have been better off if the case had been handled in that fashion?
SOTOMAYOR: Sir, no, I didn’t show a lack of courage. The court’s decision was clear in both instances on the basis for the decision. It was a thorough, complete discussion of the issues as presented to the district court. The circuit court’s ruling was clear in both instances. No, I did not lack courage.
SESSIONS: Well, I don’t think it was a great district court opinion, but it was -- so I would disagree on that.
But, Mr. Chairman, you have been fair to us throughout. I don’t know that every member of our side would use the time that they are allotted, and -- but I’m glad that you’re allowing them the opportunity to do so.
LEAHY: Well, thank you. Thank you for that compliment, Senator. I -- and I should compliment Senator Specter here. When he was chairman, I was ranking member, and we had to Supreme Court nominations.
We tried to work out a time to (inaudible) everybody, and we did, and it was -- we were told by both Republicans and Democrats that nobody had complained about the amount of time. I’ve tried to do the same thing. It is a lifetime appointment. Been very impressed, of course, with our nominee, and that’s been obvious.
Incidentally, she was originally nominated by President George H.W. Bush, and then by President Bill Clinton, now by President Barack Obama. President Clinton nominated her to the Second Circuit, and I have a letter addressed to the members of the committee -- well, actually to you and I, Senator Sessions, from former President Clinton.
And he speaks of her being able to make a unique contribution through her experience as a prosecutor and trial judge to the bench and hopes that we will have a speedy confirmation for her. And I will put that in the record.
One of the things is in -- also in trying to make sure everybody gets balanced time, but we’ve had -- a lot of us have served as either chairmen and ranking member of this committee. We know how important that is. And I use that to yield to Senator Hatch, who has had also the problem of having to schedule how things go. And I’ll yield to you. But thank you, Jeff. I appreciate that.
HATCH: Well, thank you, Mr. Chairman, and I echo Jeff’s statement here. Judge, you’ve been great throughout this process, and I appreciate it. But I have some questions I’d like to ask, but I think you can answer yes or no. Of course, you can qualify if you feel like it. But I would like to get through these, because they’re important questions to me and millions of other people that I represent.
Judge, from 1980 to 1992, you were actively involved with the Puerto Rican Legal Defense and Education Fund. That’s a well-known civil rights organization in our country.
Among many other activities, this group files briefs in Supreme Court cases. You served in nearly a dozen different leadership positions there, including serving on and chairing the Litigation Committee.
The New York Times has described you as a, quote, “Top policymaker,” unquote, with the group, and said that you would meet frequently with the legal staff, review the status of cases, and played an active role in the fund’s litigation. Lawyers at the fund described you as, quote, “An involved and ardent supporter of their various legal efforts during your time with the group,” unquote.
The Associated Press looked at documents from your service with the fund that showed that you were, quote, “Involved in making sure that the cases, the fund’s cases, handled were in keeping with its mission statement and were having an impact.”
And when Senator Gillibrand introduced you to this committee on Monday, she compared your leadership role with the fund to Justice Ruth Bader Ginsburg’s participation in the ACLU Women’s Rights project or Justice Thurgood Marshall’s participation on behalf of the NAACP Legal Defense and Education Fund.
So let me ask you just about a few abortion cases in which the fund filed briefs. And I do believe you’re going to answer these yes or no, but again, certainly qualify if you feel like it.
I’m not asking for your present views, either personal or legal, let’s get that straight, on these issues, nor am I asking how you might rule on these issues in the future. I just want to make that clear.
I might say that -- like I say, these are important issues. In one case, Williams v. Zbaraz and Harris v. McRae, the fund joined an amicus brief asking the Supreme Court to overturn restrictions on taxpayer funding for abortions.
The brief compared refusing to use Medicaid funds to pay for abortions to the Dred Scott case, the Dred Scott v. Sandford decision that refused citizenship to black people in our society and -- and treated them terribly. At the time, did you know that the fund was filing this brief? At the time, did you -- well, let me ask you each one. At the time, did you know the fund was filing this brief?
SOTOMAYOR: No, sir.
HATCH: OK. At the time, did you know that the brief made this argument?
SOTOMAYOR: No, sir.
HATCH: At the time, did you support the fund filing this brief that made this argument?
HATCH: At the time, did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument?
SOTOMAYOR: I was not like Justice Ginsburg or Justice Marshall. I was not a lawyer on the fund as they were, with respect to the organizations they belonged to. I was a board member.
And it was not my practice and not that I know of, of any board member, although maybe one with civil rights experience would have. I didn’t have any in this area, so I never reviewed the briefs.
HATCH: All right. In another case, Ohio v. Akron Center for Reproductive Health, the fund argued that the First Amendment right to freely exercise religion undermines laws requiring parental notification for minors getting abortions. Now, at the time, did you know that the fund was filing this brief?
SOTOMAYOR: No, no specific brief. Obviously, it was involved in litigation, so I knew generally they were filing briefs, but I wouldn’t know until after the fact that a brief was actually filed. But I wouldn’t review it.
HATCH: The same questions on this. At the time, did you know that the brief made this argument? At the time, did you support the fund filing this brief that made this argument? And at the time, did you voice any concern, objection, disagreement, or doubt about the fund filing this brief or making this argument?
SOTOMAYOR: No, because I never reviewed the brief.
HATCH: That’s fine. I’m just going to establish this. In another case, Planned Parenthood v. Casey, the fund argued against a 24-hour waiting period for obtaining an abortion. So, again, those questions. At the time, did you know that the fund was filing this brief? Did you know that the brief made this argument? Did you support the fund filing this brief that made this argument? And did you voice any concern, objection, disagreement or doubt about the fund filing this brief or making this argument?
SOTOMAYOR: For the same reason, no.
HATCH: OK. Now, Judge, I’m going to be very easy on you now, because I -- I invited constituents in Utah to submit questions and got an overwhelming response. Many of them submitted questions about the Second Amendment and other issues that have already been discussed.
But one constituent asked whether you see the courts, especially the Supreme Court, as an institution for resolving perceived social injustices, inequities and disadvantages. Now, please address this both in terms of the justices’ intention and the effect of their decisions. That was the question. And I thought it was an interesting question.
SOTOMAYOR: No, that’s not the role of the courts. The role of the courts is to interpret the law as Congress writes it. It may be the effect in a particular situation that, in the court doing that, in giving effect to Congress’s intent, it has that outcome, but it’s not the role of the judge to create that outcome. It’s to interpret what Congress is doing and do what Congress wants.
HATCH: Great. One final question, Judge. You have described your judicial philosophy in terms of the phrase “fidelity to the law.” Would you agree with me that both majority and dissenting justices in last year’s gun rights decision in District of Columbia v. Heller were doing -- doing their best to be faithful to the text and history of the Second Amendment?
SOTOMAYOR: Text and history, how precedent had analyzed it, yes.
HATCH: OK. In other words, do you believe that they were exhibiting fidelity to the law as they understood it?
SOTOMAYOR: Yes. Yes.
HATCH: OK. Then I take it that you would agree that the justices in the majority were not engaging in some kind of right-wing judicial activism that some have characterized the decision? Is that fair to say?
SOTOMAYOR: It is fair for me to say that I don’t view what a court does as activism. I view it as each judge principally interpreting the issue before them on the basis of the law.
HATCH: Great. Well, let me just ask you one other constituent question. It’s a short one. Another constituent asked, which is more important or deserves more weight, the Constitution as it was originally intended or newer legal precedent?
SOTOMAYOR: What governs always is the Constitution...
HATCH: Yes, which -- which -- which is more important or deserves more weight, the actual wording of the Constitution as it was originally intended or newer legal precedent? That’s a tough question.
SOTOMAYOR: The intent of the founders was set forth in the Constitution. They created the words; they created the document. It is their words that is the most important aspect of judging. You follow what they said in their words, and you apply it to the facts you’re looking at.
HATCH: Well, thank you, Judge. I’ll give back the remainder of my time, Mr. Chairman. LEAHY: Thank you. Thank you, Senator Hatch.
And I just would note, we do have this letter in the -- in the record from PRLDEF, the Puerto Rican Legal Defense and Education Fund, in which they say, “Neither the board as a whole nor any individual member selects litigation to be undertaken or controls ongoing litigation.” I just think that should be very, very clear here. Probably why they get support from the United Way and a number of other organizations. Senator Grassley?
GRASSLEY: Good morning, Justice -- Judge Sotomayor. Yesterday, you said you would take a look at Baker v. Nelson, so I ask this question. You said you hadn’t read Baker in a long time and would report back. You added that if Baker was precedent, you would uphold it based upon stare decisis, consistent with your stance in cases like Keyhole (ph), Roe v. Wade, Griswold, many others that you mentioned this week.
Baker involved an appeal from the Minnesota Supreme Court which held that a Minnesota law prohibiting same-sex marriage did not violate the 1st, the 8th, the 9th or the 14th Amendment to the Constitution. The Supreme Court, in a very short ruling, concluded on its merits that, quote, “The appeal is dismissed for want of substantial federal question.”
Baker remains on the books as precedent. Will you respect the court’s decision in Baker based upon stare decisis? And if not, why not?
SOTOMAYOR: As I indicated yesterday, I didn’t remember Baker. And if I had studied it, it would have been in law school. You raised the question, and I did go back to look at Baker. In fact, I don’t think I ever read it, even in law school.
Baker was decided at the time where jurisdiction over federal questions was mandatory before the Supreme Court. And the disposition by the Supreme Court, I believe, was what you related, Senator, which is a dismissal of the appeal raised on the Minnesota statute.
What I have learned is the question of -- it’s what the meaning of that dismissal is is actually an issue that’s being debated in existing litigation. As I indicated yesterday, I will follow precedent according to the doctrine of stare decisis. I can’t prejudge what the precedent means in the issue comes before -- what a prior decision of the court means and its applicability to a particular issue is until that question is before me as a judge or a justice, if that should happen.
So at bottom, because the question is pending before a number of courts, the ABA would not permit me to comment on the merits of that. But as I indicated, I affirm that, with each holding of the court to the extent it is pertinent to the issues before the court, it has to be given the effects of stare decisis.
GRASSLEY: Am I supposed to interpret what you just said as anything different than what you said over the last three days in regard to Kelo or Roe or Griswold or any other precedents you said or precedents? Or would it be exactly in the same tone as you mentioned in previous days are previous precedents under stare decisis?
SOTOMAYOR: Well, those cases have holdings that are not open to dispute. The holdings are what they are. Their application to a particular situation will differ on what facts those situations present.
The same thing with the Nelson case which is what does the holding me. And that’s what I understand is being litigated because it was a one-line decision by the Supreme Court and how it applies to a new situation is what’s also -- would come before a court.
GRASSLEY: OK. My last question for your appearance before your committee involves a word I don’t think that’s showed up here yet -- vacuums. And it’s a question that I asked Judge Roberts and Justice Alito. And it comes from a conversation I had -- a dialogue I had at a December hearing when Judge Souter was before us, now Justice Souter, involving the term “vacuums in law.”
And I think the term “vacuums in law” comes from Souter himself as I’ll read to you in just a moment. I probed Judge Souter about how he would interpret the Constitution and statutory law. In his response,
Justice Souter talked about the court filling vacuums left by Congress. And there’s several quotes that I can give you from 19 -- I guess it was 1990. But I will just read four or five lines of Judge Souter speaking to this committee.
GRASSLEY: Because if, in fact, the Congress will face the responsibility that goes with the 14th Amendment powers, then by definition, there, to that extent, not going to be a kind of vacuum of responsibility created in which the courts are going to be forced to take on problems which sometimes in the first instance might be better addressed by the political branches of government.
Both prior to that and after that, Judge Souter talked a lot about maybe the courts needed to fill vacuums. Do you agree with Justice Souter? Is it appropriate for the courts to fill vacuums in the law?
And let me quickly follow it up. Do you expect that you will fill in vacuums in the law left by Congress if you’re confirmed to be an associate justice?
SOTOMAYOR: Senator Grassley, one of the things I say to my students when I’m teaching, brief writing, I start by saying to them, it’s very dangerous to use analogies, because they’re always imperfect. I wouldn’t ever use Justice Souter’s words, because they are his words, not mine.
I try always to use -- and this is what I tell my students to do -- is use simple words. Explain what you’re doing without analogy. Just tell them what you’re doing. And what I do is not described in the way -- or I wouldn’t describe it in the way Justice Souter did. Judges apply the law. They apply the holdings of precedent. And they look at how that fits into the new facts before them.
But you’re not creating law. If that was an intent that Justice Souter was expressing -- and I doubt it -- that’s not what judges do. Judges do what I just described, and that’s not, in my mind, acting for Congress. It is interpreting Congress’s intent as expressed in a statute and applying it to the new situation.
GRASSLEY: Thank you. I’m done, Mr. Chairman.
LEAHY: Thank you very much, Senator Grassley. Senator Kyl, did you want another round?
KYL: Yes, thank you, Mr. Chairman. I’m not sure how long this will take. But, Judge, I think maybe we’re, to use the president’s analogy that we talked about in my very first question to you, we may be in about the 25th mile of the marathon, and I might even be persuaded to have a little empathy for this last mile here. I think you’re just about done.
I wanted to go over three quick things, if I could. The first is the exchange that we had this morning regarding the decision in Ricci in which you insisted that you were bound by Supreme Court and Second Circuit precedent. I quoted from the Supreme Court decision to the effect that I -- I believe that that contradicted your answer.
If you have anything different to say than what you said this morning, I wanted to give you another opportunity to say it. We don’t need to re-plow the same ground. But is there anything different that you would like to offer on that?
SOTOMAYOR: Senator, after each round, I go to the next moment. Without actually looking at the transcript, I couldn’t answer that question. It’s just impossible to right now. I’m glad you’re giving me the opportunity, but I would need a specific question as to something I said and what I meant before I could respond.
KYL: All right. Since we will probably have a few questions as follow up in writing and you’ll be providing us answers to those, maybe the best thing is just to ask a general question or, if there is something specific that I can relate it to, and then you can respond in that way.
SOTOMAYOR: Thank you, sir.
KYL: You’re very welcome. Now, the second question has to do with the Second Amendment. In the Maloney case, you held that it was not incorporated into the 14th Amendment. And what -- well, maybe I should ask you what that means. Let me ask you in two separate situations, as a practical matter.
If the Supreme Court does not review that issue, then is it the case that, at least in the Second Circuit and the Seventh Circuit, the states that are in the Seventh and Second Circuit, those states could pass laws that restrict, or even prohibit, people from owning firearms?
SOTOMAYOR: I do not hold -- it was not incorporated. I was on a panel that viewed Supreme Court precedent and Second Circuit precedent as holding that fact.
SOTOMAYOR: You can’t talk in an absolute. There always has to be a reason for why a state acts. And you -- also has to be a reason for the extent of the regulation the state passes.
And so the question in Maloney for us was a very narrow question, which was are these nunchuck sticks, and I have described them previously as these martial arts sticks tied together by a belt that, when you swing them, if somebody comes by, there could be -- it’s not serious deadly force in some situations -- whether the state had a reason recognized in law for determining that it was illegal to own those sticks.
The next issue that would come up by someone who challenged the regulation would be what’s the nature of the regulation, and how does it comport with the reason the state gives for the actions it did. So it -- absolute regulation, it’s not what I would answer. I would answer with the regulation...
KYL: Let me -- I -- excuse me. I appreciate your answer. What would be the test that would be applied by a court in the event that a state said because of the danger that firearms to present to others, we’re going to require that only law enforcement personnel can own firearms in our state, and someone challenged that as an affront to their rights, they would say the federal government can’t take that right away from us because of the Second Amendment.
What would the test be that the court would apply to analyze the regulation of the state?
SOTOMAYOR: Well, that’s very similar, although not exactly, if I understood it, to the Heller, the facts in Heller. And the court there said that the regulation in D.C. was broader than the interest asserted.
That question in a different state would depend on the circumstances of it’s barring...
KYL: Well, is -- excuse me for interrupting.Is there no standard to -- I mean, we’re familiar with strict scrutiny, the reasonable basis test, and so on. Is there a standard of which you’re aware that the court would use to examine the state’s right to impose such a restriction, given that the Second Amendment would be deemed not incorporated?
SOTOMAYOR: In Maloney, the court addressed whether there was a violation of the equal protection statute of -- equal protection of the 14th Amendment and determined that rational basis review. Now that I understand that you were asking about a standard...
KYL: Sure. I’m sorry. I didn’t (inaudible)...
SOTOMAYOR: Of review that’s...
KYL: Now, of the tests that the court applies traditionally, the rational basis is the least difficult of states to meet in justifying a regulation, is it not?
SOTOMAYOR: I’m not going to be difficult with you. It’s the one where you don’t need a -- an exact fit between the exact injury that you’re seeking to remedy in the legislation...
KYL: Could I...
SOTOMAYOR: So it does have more...
KYL: Flexibility for the...
SOTOMAYOR: Well, flexibility is the wrong -- more a deference to congressional findings about what...
KYL: Or -- or state law.
KYL: Right. You -- you know that the -- the general rule that the rational basis test is the least intrusive on a state’s ability to regulate, whereas strict scrutiny is -- is the most intrusive on the state’s ability. Is that a fair characterization?
SOTOMAYOR: It’s a fair characterization that when you have strict scrutiny, the government’s legislation must be very narrowly tailored.
KYL: Right. So...
SOTOMAYOR: When a rational basis, there is a broader breadth for the states to act.
KYL: So wouldn’t it be correct to say that as between the application of the Second Amendment to the District of Columbia, for example, compared to a situation in which a state or city imposed a regulation on the control of firearms, that it would be much more likely that the court would uphold the state’s ability or the city’s ability to regulate that than it would -- in the abstract, I’m talking about here -- than it would a federal attempt to regulate it under the Second Amendment?
SOTOMAYOR: That’s a problem within the abstract, because what the court would look at is whatever legislatures -- state legislative findings there are and the fit -- I’m -- fit between those findings and the legislation.
KYL: Right. And -- and I appreciate that you’re not going to -- without knowing the facts of every case, you can’t opine. But just as a general proposition, obviously, if the amendment is incorporated, it will be much more difficult for a government to impose a standard than if it is not incorporated.
SOTOMAYOR: Well, the standard of review, even under the incorporation doctrine, was actually not decided in Heller. And that issue wasn’t resolved, so what that answer will be is actually an open question that I couldn’t even discuss in a broad term, other than to just explain that...
KYL: All right. Let -- let me ask you -- again to interrupt, because we’re less than two minutes now -- if Senator Leahy says, gee, in Vermont he’s not worried about the fact that the Second Amendment isn’t incorporated. Maybe if I lived in New York or Massachusetts or some other state, I would be worried.
The question, I do, I would ask here is can you understand why someone who would like to own a gun would be concerned that if the amendment is not deemed incorporated into the 14th Amendment as a fundamental right, that it would be much more likely that the state or the city in which that individual lived could regulate his right to own a firearm?
SOTOMAYOR: Very clear to me from the public discussions on this issue that that is a concern for many people.
KYL: Final question. You’re familiar -- this goes to the foreign law issue -- you’re familiar with the difference in the treatment of foreign law by the U.S. Supreme Court in Kennedy v. Louisiana on the one hand and in Roper v. Simmons on the other.
In Roper the court ruled it was cruel and unusual to apply the death penalty and drew substantially on foreign law. In Kennedy v. Louisiana, an adult was convicted of raping an 8-year-old child, and the same five justices who wrote the opinion in Roper ruled that it was cruel and unusual to sentence the individual to death, but cited no foreign law whatsoever.
Some have said that a discussion of foreign law was left out of the Kennedy case because it actually cut against the majority’s opinion. What do you think?
SOTOMAYOR: I can’t speak for why they did. I can only do what you did, which is to describe what the courts did in what they said. It’s impossible for me to speak about why a particular court acted in a particular way or why a particular justice analyzed an issue outside of what the opinion says.
KYL: I’ll just tell you, my view is it kind of tells me that if the court can find some foreign law that supports its opinion, it might use it. If the opinion is on the other side, then it doesn’t.
In my view, that’s one of the problems with using foreign law. And I gather from what you said earlier, you don’t think the court should use foreign law, either, except in cases of treaty and other similarly appropriate cases.
SOTOMAYOR: I do not believe that foreign law should be used to -- to determine the result under constitutional law or American law, except where American law directs.
KYL: Thank you very much. Thank you, Judge.
LEAHY: Thank you. Senator Graham?
GRAHAM: Thank you, Judge. I guess we do get to talk again. When you look at the fundamental right aspect of the Second Amendment, you’ll be looking at precedent, you will be looking in our history, you will be looking at a lot of things. Hopefully, you’ve talked to your godchild, who’s an NRA member. You can be -- you can assimilate your view of what America is all about when it comes to Second Amendment.
But one thing I want you to know, that Russ Feingold and Lindsey Graham have reached the same conclusion, so that speaks strong of the Second Amendment, because we don’t reach the same conclusion a lot. So I just want you to realize that this fundamental right issue of the Second Amendment is very important to people throughout the country, whether you own a gun or not, and it’s one of those things that I think, when you look at, you’ll find that America, unlike other countries, has a unique relationship to the Second Amendment.
Today, Khalid Sheikh Mohammed is appearing in a military tribunal at Guantanamo Bay, Cuba. He will be appearing before a military judge, and he’ll be represented by military lawyers and there will be a military prosecutor.
And the one thing I want to -- to say here, that I’ve been a judge advocate, a member of the military legal community for well over 25 years. And to America and the world who may be watching this, I have nothing but great admiration and respect for those men and women who serve in our Judge Advocate Corps who will be given the obligation by our nation to render justice against people like Khalid Sheikh Mohammed.
And I just want to say this, also, on this historic day. To those who wonder why we do this, why do we give him a trial? Why are we so concerned about him having his day in court? Why do we give him a lawyer when we know what he would do to our people in his hands?
I would just like to say that it makes us better than him. It makes us stronger for us to give the mastermind of 9/11 his day in court, represented by counsel. And any verdict that comes his way won’t be based on prejudice or passion or religious bigotry; it will be based on facts.
Now, let’s talk about what this nation is facing. This Congress, Judge, is trying to reauthorize the Military Commission Act, trying to find a way to bring justice to the enemies of this country in a way that will make us better in the eyes of the world and also make us safer here at home. Have you had an opportunity to look at the Boumediene, Hamdan, Hamdi decisions at the Supreme -- Rasul cases?
SOTOMAYOR: I have, sir.
GRAHAM: OK. You will be called upon in the future, if you get on the court, to pass some judgment over the enactments of the Congress. When it comes to civilian criminal law, do you know of any concept in civilian law that would allow someone be held in criminal law indefinitely without trial?
SOTOMAYOR: When you’re talking about civilian criminal law, you’re talking about...
GRAHAM: Domestic criminal law.
SOTOMAYOR: Domestic criminal prosecutions.
SOTOMAYOR: After conviction, defendants are often sentenced...
GRAHAM: I’m talking about you’re held in jail without a trial.
SOTOMAYOR: The speedy trial act, and there are constitutional principles that require a speedy trial, so in answer to -- no, there is no...
GRAHAM: That is a correct statement of the law, Judge, in my opinion. You cannot hold someone in domestic criminal settings indefinitely without trial.
Under military law, the law of armed conflict, is there any requirement to try in a court of law every enemy prisoner?
SOTOMAYOR: There, you have an advantage on me.
GRAHAM: Well, I...
SOTOMAYOR: Because I -- I -- I’m sorry.
GRAHAM: Fair enough. The point I’m trying to make, and check if I’m wrong. You’ll have some time to do this. As I understand military law, if we, as a nation, one of our airmen is downed in a foreign land, held by an adversary, it’s my understanding we can’t demand under the Geneva Convention that that airman or American soldier go to a civilian port.
That’s not the law. If we have a pilot in the hands of the enemy, there is no requirement of the detaining force to take that airman before a civilian judge. I think that’s the law. There is no requirement under military or the law of armed conflict to have civilian judges review the status of our prisoner. That’s a right that we do not possess.
The question for the country and the world, if people who operate outside the law of armed conflict that don’t wear uniforms, are they going to a better deal than people that play by the rules? And as we discuss these matters, I hope you take into account that there is no requirement to try everyone held as an enemy prisoner, and do you believe that there’s a requirement in the law that, as a certain point in time, that a prisoner has to be released -- an enemy prisoner -- just through the passage of time?
SOTOMAYOR: I can only answer that question narrowly. And narrowly because the court’s holdings have been narrow in this area. First, military commissions and proceedings under them have been a part of the country’s history.
SOTOMAYOR: And so there’s no question that they are appropriate in certain circumstances.
GRAHAM: And, Judge, they will have to render justice, they will have to meet the standards of who we are. My point to some critics on the right who’ve objected to my view that we ought to provide more capacity is that whatever the flag flies and whatever courtroom, there’s something attached to that flag. So we’re going to work hard to create a military commission consistent with the values of this country.
But I just want to let you know that, under traditional military law, it is not required to let someone go who is properly detained as part of the enemy force because of the passage of time. Judge, it would be crazy for us to capture someone, give them adequate due process, independent judicial review, and the judges agree with the military you’re part of Al Qaida, you represent a danger, and say at a magic point in time, “Good luck. You can go now.”
The people that we’re fighting, if some of them are let go, they’re going to try to kill us all. And it doesn’t make us a better nation to put a burden upon ourselves that no one else has ever accepted.
So what my goal, working with my colleagues, is to have a rational system of justice that will make sure that every detainee has a chance to make the argument, “I’m being improperly held,” have a day in court, have a review by an independent judiciary, but we do not take it so far as that we can’t keep an Al Qaida member in jail until they die, because some of them deserve to be in jail until they die.
And I want the world to understand that America is not a bad place because we will hold Al Qaida members under a process that is fair, transparent until they die.
My message to those who want to join this organization or are thinking about joining it is that you can get killed if you join and you may wind up dying in jail.
As this country and this Congress comes to grips with how to deal with an enemy that doesn’t wear a uniform, that doesn’t follow any rules, that would kill everybody they could get their hands on in the name of religion, that not only we focus, Senator Whitehouse, on upholding our values, that we focus on the threat that this country faces in an unprecedented manner.
So, Judge, my last words to you will be: If you get on this court and you look at the Military Commission Act that the Congress is about to pass, when you look at whether or not habeas should be applied to a wartime battle-filled prison, please remember, Judge, that we’re not talking about domestic criminals who robbed a liquor store.
We’re talking about people who have signed up for a cause that’s every bit as dangerous as any enemy this country has ever faced and that this Congress, the voice of the American people who stand for re- election, has a very difficult assignment on its hands.
There are lanes for the executive branch, the judicial brand, and the congressional branch, even in a time of war. Please, Judge, understand that 535 members of Congress cannot be the commander-in- chief and that unelected judges can’t run the war. Thank you, and Godspeed.
SOTOMAYOR: Thank you, Senator.
LEAHY: Senator Cornyn?
CORNYN: You’re almost through, Judge. I just want to ask three relatively quick items just to -- that I was not able to get to earlier just for your brief comment.
You wrote in 2001 that neutrality and objectivity in the law are a myth. You said that you agreed that, quote, “there is no objective stance, but only a series of perspectives, no neutrality, no escape from choice in judging.” Would you explain what that means?
SOTOMAYOR: In every single case, and Senator Graham gave the example in his opening statement, there are two parties arguing different perspectives on what the law means. That’s what litigation is about. And what the judge has to do is choose the perspective that’s going to apply to that outcome.
So there is a choice. You’re going to rule in someone’s favor. You’re going to rule against someone’s favor. That’s the perspective of the lack of neutrality. It’s that you can’t just throw up your hands and say, “I’m not going to rule.” Judges have to choose the answer to the question presented to them.
And so that’s what that part of my talking was about, that there is choice in judging. You have to rule.
CORNYN: You characterized in your opening statement that your judicial philosophy is one of fidelity to the law. Would you agree that both the majority and the dissenting justices in last year’s landmark gun rights case, the D.C. v. Heller case, were each doing their best to be faithful to the text and the history of the Second Amendment? In other words, do you believe that they were exhibiting fidelity to the law?
SOTOMAYOR: I think both were looking at the legal issue before them, looking at the text of the Second Amendment, looking at its history, looking at the court’s precedent over time and trying to answer the question that was before them.
CORNYN: Do you think it’s fair to characterize the five justices who affirmed the right to keep and bear arms as engaged in right-wing judicial activism?
SOTOMAYOR: It’s -- that -- I don’t use that word for judging. I eschew labels of any kind. That’s why I don’t like analogies and why I prefer, in brief writing, to talk about judges interpreting the law. CORNYN: What about the 10 Democratic senators, including Senator Feingold, who’s been mentioned earlier, who joined the brief, the amicus brief to the U.S. Supreme Court urging the court to recognize the individual right to keep and bear arms? Do you think, by encouraging an individual right to keep and bear arms, that somehow these senators were encouraging the court to engage in right-wing judicial activism?
SOTOMAYOR: I don’t describe people’s actions with those labels.
CORNYN: I appreciate that. You testified earlier today that you would not use foreign law in interpreting the Constitution statues. I’d like to contrast that statement with an earlier statement that you made back in April. And I quote, “International law and foreign law will be very important in the discussion of how to think about unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this,” close quote.
Let me repeat the words that you used three months ago. You said, “Very important,” and you said, “Judges everywhere.” This suggests to me that you consider the use of foreign law to be broader than you indicated in your testimony earlier today. Do you stand by the testimony you gave earlier today? Is it -- or do you stand by the speech you gave three months ago, or can you reconcile those for us?
SOTOMAYOR: Stand by both, because the speech made very clear in any number of places where I said you can’t use it to interpret the Constitution or American law, and I went through -- not a lengthy because it was a shorter speech -- but I described the situations in which American law looks to foreign law by its terms, meaning, it’s counseled by American law.
My part of the speech said people misunderstand what the word “use” means. And I noted that use appears to be -- to people to mean if you cite a foreign decision, that’s means it’s controlling an outcome or that you are using it to control an outcome. And I said, no. You think about foreign law as a -- and I believe my words said this -- you think about a foreign law the way judges think about all sources of information, ideas. And you think about them as ideas both from law review articles and from state court decisions and from all the sources, including, Wikipedia, that people think about ideas. OK?
They don’t control the outcome of the case. The law compels that outcome. And you have to follow the law.
But judges think. We engage in academic discussions. We talk about ideas. Sometimes, you’ll see judges who choose -- I haven’t -- it’s not my style, OK? But there are judges who will drop a footnote and talk about an idea. I’m not thinking that they’re using that idea to compel a result. It’s an engagement of thought.
But the outcome, as in, you know, you could always find an exception, I assume if I looked hard enough. But in my review, judges are applying American law.
CORNYN: Well, Your Honor, why would a judge cite foreign law unless it somehow had an impact on their decision on their decision making process?
SOTOMAYOR: I don’t know why other judges do it. As I explained, I haven’t. But I look at the structure of what the judge has done and explained and go by what that judge tells me. There are situations -- that’s as far as I can go.
CORNYN: You said at another occasion that you find foreign law useful because it, quote, “gets the creative juices flowing,” close quote. What does that mean?
SOTOMAYOR: To me, I am a part academic. Please don’t forget that I taught at two law schools. I do speak more than I should. (LAUGHTER) And I think about ideas all the time. And so, for me, it’s fun to think about ideas. You sit at a lunchroom among judges, and you’ll often hear them saying, did you see what that law school professor said. Or did you see what some other judge wrote and what do you think about it and -- but it’s just talking. It’s just sharing ideas.
What you’re doing in each case -- and that’s what my speech said, you can’t use foreign law to determine the American Constitution. It can’t be used neither as a holding or precedent.
CORNYN: Do you agree with me that if the American people want to change the Constitution, that is a right reserved to them under the Constitution to amend it and change it rather than to have judges, under the guise of interpreting the law, in effect, change the Constitution by judicial fiat?
SOTOMAYOR: In that regard, the Constitution is abundantly clear. There is amendment process set forth there. It controls how you change the Constitution.
CORNYN: And I would just say, if academics or legislators or anybody else who’s got creative juices flowing from the invocation of foreign law, if they want to change the Constitution, my contention is the most appropriate way to do that is for the American people to do it through the amendment process, rather than for judges to do it by relying on foreign law.
SOTOMAYOR: We have no disagreement.
CORNYN: Thank you very much, your honor.
LEAHY: Thank you. Senator Coburn?
COBURN: Thank you, Mr. Chairman. I’m going to go into an area that we have not covered, no one has covered yet. And I’m reminded of Senator Sessions talking to you about pay. You know, I would predict to you, in about 15 -- 15 or 18 years -- I’m sorry?
COBURN: ... pay, in 10 or 15 years -- judicial pay -- we may not be able to pay your salary, if you look -- 9 years from now, we’re going to have $1 trillion worth of interest on the national debt. It’s not very funny. What it does is it undermines the freedom and security of our children and our grandchildren.
And I want to go to -- to Madison. Madison’s the father of our Constitution, and I want to get your take on three issues: one, the commerce clause; two, the general welfare clause; and, number three, the 10th Amendment.
And I don’t know if you’ve read the Federalist Papers, but I find them very interesting to give insight into what our founders meant, what they said when they wrote our Constitution.
In Federalist 51, Madison expressed the importance of a restrained government by stating, “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed and, in the next place, oblige it to control itself.”
Do you believe that our federal courts enable the federal government to exceed its intended boundaries by interpreting Article I’s commerce clause and necessary and proper clause to delicate virtual unlimited authority to the federal government?
SOTOMAYOR: The Supreme Court, in at least two rules or one, has said there are limits to all powers set forth in the Constitution. And -- and the question for the court in any particular situation is -- is to determine whether whatever branch of government or state is acting within the limits of the Constitution.
COBURN: So you would say -- but let me read you another Madison quote, again, the father of our Constitution. “If Congress can employ money indefinitely to the general welfare and are the sole and supreme judges of general welfare, they may take the care of religion into their own hands. They may appoint teachers in every state, county and parish and pay them out of the public treasury.”
“They may take into their hands -- their own hands the education of our children, establishing like-manner schools throughout the union. They may assume the provision for the poor. They may undertake the regulation of all roads other than post roads. In short, everything from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress.”
“Were the power of Congress to be established in the latitude contended for, it would subvert the very foundations and transmute the very nature of the limited government established by this Constitution and the American people.” (More to come)
Links to previous portions of this week’s Senate Judiciary Committee hearings:
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. The fourth and final part of Wednesday’s hearing transcript is here.
Part 4 of Thursday’s testimony is now available here.
SPEAKERS: SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN SEN. HERB KOHL, D-WIS. SEN. DIANNE FEINSTEIN, D-CALIF. SEN. RUSS FEINGOLD, D-WIS. SEN. CHARLES E. SCHUMER, D-N.Y. SEN. RICHARD J. DURBIN, D-ILL. SEN. SHELDON WHITEHOUSE, D-R.I. SEN. BENJAMIN L. CARDIN, D-MD. SEN. RON WYDEN, D-ORE. SEN. AMY KLOBUCHAR, D-MINN. SEN. EDWARD E. “TED” KAUFMAN, D-DEL. SEN. ARLEN SPECTER, D-PA. SEN. AL FRANKEN, D-MINN.
SEN. JEFF SESSIONS, R-ALA. RANKING MEMBER SEN. ORRIN G. HATCH, R-UTAH SEN. CHARLES E. GRASSLEY, R-IOWA SEN. JON KYL, R-ARIZ. SEN. LINDSEY GRAHAM, R-S.C. SEN. JOHN CORNYN, R-TEXAS SEN. TOM COBURN, R-OKLA.