Opinion: Sotomayor hearings: The complete transcript -- Day 4, Part 6
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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 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 in Washington.
A complete cast of committee characters is added to the bottom of this item.
Monday, we published the opening statements of each senator and Judge Sotomayor. Tuesday, we published the entire day’s transcript proceedings in five parts. The links to all those pieces are at the end of this item.
Keep checking back here for updates.
— Andrew Malcolm
Continuation of testimony before Senate Judiciary Committee:
ACXTING CHAIRMAN: Thank you for your testimony. We’ll now hear from Peter Kirsanow. Peter Kirsanow serves on the U.S. Commission on Civil Rights. He’s a member of the National Labor Relations Board where he received a recess appointment from President George W. Bush. Previously, he was a partner with the Cleveland law firm of Benesch, Friedlander, Coplan and Aronoff. Mr. Kirsanow received his law degree from Cleveland State University.
KIRSANOW: Thank you, Mr. Chairman, Senator Sessions, members of the committee, I am Peter Kirsanow, a member of the U.S. Commission on Civil rights. I am currently back at Benesch, Friedlander in the legal employment practice group. I am here in my personal capacity. The U.S. Commission on Civil Rights was established...
SESSIONS (?): Is that microphone on?
KIRSANOW: The U.S. Commission on Civil Rights was established by the 1957 Civil Rights Act to, among other things, act as a national clearinghouse for information related to denials of equal....
...protection and discrimination, and in furtherance of the clearinghouse process, my assistant and I reviewed the opinions in civil rights cases in which Judge Sotomayor participated while on the 2nd Circuit in the context of prevailing civil rights jurisprudence and with particular attention to the case of Ricci v. DiStefano.
Our review revealed at least three significant concerns with respect to the manner in which the three-judge panel that included Judge Sotomayor handled the case. The first concern was, as you’ve heard, the summary disposition of this particular case. The Ricci case contained constitutional issues of extraordinary importance and impact. For example, the issues of -- that are very controversial and volatile -- racial quotas and racial discrimination.
This was a case of first impression. No 2nd Circuit or Supreme Court precedent on point.
KIRSANOW: Indeed, to the extent there were any cases that could provide guidance, such as Wigant (ph), Crosen (ph), Aderant (ph), even private sector cases, such as Johnson (ph) Transportation, Frank v. Xerox, Weather (ph) v. Steelworkers (ph), would dictate or suggest a result opposite of that reached by the Sotomayor panel.
The case contained a host of critical issues for review, yet the three-judge panel summarily disposed of the case, as you’ve heard, in an unpublished, one-paragraph, per curium opinion that’s usually reserved for cases that are relatively simple, straightforward and inconsequential.
The second concern is that the Sotomayor panel’s order would inevitably result in the proliferation of de facto racial and ethnic quotas. The standard endorsed by the Sotomayor panel was lower than that adopted by the Supreme Court’s test of strong basis in evidence.
Essentially, any race-based employment decision invoked to avoid a disparate impact lawsuit would provide immunity from Title VII review. Under this standard, employers who fear the prospect or expense of litigation, regardless of the merits of the case, would have a green light to resort to racial quotas.
But even more invidious is the use of quotas due to racial politics, and, as Judge Alito’s concurrence showed, there was glaringly abundant evidence of racial politics in the Ricci case.
Had the Sotomayor panel decision prevailed, employers would have license to use racial preferences and quotas on an expansive scale. Evidence adduced before the Civil Rights Committee shows that when courts open the door to preferences just a crack, preferences expand exponentially.
For example, evidence adduced before hearings of the Civil Rights Commission in 2005 and 2006 show that despite the fact that Aderant (ph) was passed more than -- or decided more than 10 years ago, federal agencies persist in using race conscious programs in federal contracting, governmental contracting, as opposed to race-neutral alternatives.
Moreover, even though the Supreme Court had struck down the use of raw numerical weighting in college admissions in Gratz v. Bollinger, thereby requiring that race be only a mere plus factor, a thumb on the scale in the admissions process, powerful preferences show no signs of abating.
A study by the Center for Equal Opportunity showed that in a major university preferences were so great that the odds that a minority applicant would be admitted over a similarly situated white comparative were 250-1. At another major university, 1,115-1. That’s not a thumb on the scale, that’s an anvil.
And had the reasoning of the Ricci case in the lower court prevailed, what happened to Firefighter Ricci and Lieutenant Vargas would happen to innumerably more Americans of every race throughout the country.
The third concern is that the lower court’s decision that would permit racial engineering by employers would actually harm minorities who were the purported beneficiaries of that particular decision.
Evidence adduced at a 2006 Civil Rights Commission hearing shows that there’s increasing data that preferences create mismatch effects that actually increase the probabilities that minorities will fail if they receive beneficial treatment or preferential treatment.
For example, black law students who were admitted in preferences are two and a half times more likely not to graduate than their similarly situated white or Asian comparatives; four times as likely not to pass the bar exam on the first try; and six times as likely never to pass the bar exam, despite multiple attempts.
Mr. Chairman, it’s respectfully submitted that, if a nominee’s interpretative factoring permits an employer to treat one group preferentially today, there’s nothing that prevents them from treating another group or shifting their preferences to another group tomorrow.
And it’s contrary to the color-blind ideal contemplated by the 1964 Civil Rights Act, Title VII, which was the issue decided in the Ricci case. Thank you, Mr. Chairman.
WHITEHOUSE: And thank you for your testimony. We’ll now from Linda Chavez, who’s chairman of the Center for Equal Opportunity and a political analyst for Fox News Channel. She’s held a number of appointed positions, among them White House director of public liaison and staff director of U.S. Commission on Civil Rights.
CHAVEZ: Thank you, Mr. Chairman and members of the committee. I testify today not as a wise Latina woman but an American who believes that skin color and national origin should not determine who gets a job, a promotion or a public contract or who gets into college or receives a fellowship.
My message today is straightforward. Mr. Chairman, do not vote to confirm this nominee. I say this with some regret, because I believe Judge Sotomayor’s personal story is an inspiring one, which proves that this is truly a land of opportunity, where circumstances of birth and class do not determine whether you can succeeded.
Unfortunately, based on her statements both on and off the bench, I do not believe Judge Sotomayor shares that view. It is clear from her record that she has drunk deep from the well of identity politics.
I know a lot about that well, and I can tell you that it is dark and poisonous. It is, in my view, impossible to be a fair judge and also believe that one’s race, ethnicity and sex should determine how someone will rule as a judge.
Despite her assurances to this committee over the last few days that her “wise Latina woman” statement was simply a, quote, “rhetorical flourish fell flat,” nothing could be further from the truth.
All of us in public life have, at one time or another, misspoken. But Judge Sotomayor’s words weren’t uttered off the cuff. They were carefully crafted, repeated, not just once or twice, but at least seven times over several years.
As others have pointed out, if Judge Sotomayor were a white man who suggested that whites or males made better judges, again, to use Judge Sotomayor’s words, quote, “Whether born from experience or inherent physiological or cultural differences,” end quote, “we would not be having this discussion. Because the nominee would have been forced to withdraw once those words became public.”
But, of course, Judge Sotomayor’s offensive words are just a reflection of her much greater body of work as an ethnic activist and judge.
Identity politics is at the core of who this woman is. And let me be clear here. I’m not talking about the understandable pride in one’s ancestry or ethnic roots, which is both common and natural in a country as diverse and pluralistic as ours.
Identity politics involves a sense of grievance against the majority, a feeling that racism permeates American society and its institutions and the belief that members of one’s own group are victims in a perpetual power struggle with the majority.
From her earliest days at Princeton University, and later, Yale Law School, to her 12-year involvement with the Puerto Rican Legal Defense and Education Fund, to her speeches and writings, including her jurisprudence, Judge Sotomayor has consistently displayed an affinity for such views.
I have outlined at much greater length in my prepared testimony, which I ask permission be included in the record in full, the way in which I believe identity politics has permeated Judge Sotomayor’s life’s work. But let me briefly outline a few examples.
As an undergraduate, she actively pushed for race-based goals and timetables for faculty hiring. In a much-praised senior thesis, she refused to identify the United States Congress by its proper name, instead referring to it as the North American Congress or the Mainland Congress.
During her tenure as chair of the Puerto Rican Legal Defense and Education Fund’s Director Litigation Committee, she urged (inaudible) seeking lawsuits challenging the civil service exams, seeking race- conscious decision-making similar to that used by the city of New Haven in Ricci.
She opposed the death penalty as racist. She supported race- based government contracting. She made dubious arguments in support of bilingual education and more broadly in trying to equate English language requirements as a form of national origin discrimination. As a judge she dissented from an opinion that the Voting Rights Act does not give prison inmates the right to vote.
And she has said that as a witness -- eyewitnesses’ identification of an assailant may be unconstitutional racial profiling in violation of the equal protection clause, if race is an element of that identification. Finally, she has shown a willingness to let her policy preferences guide her in the Ricci case.
Although she has attempted this week to back away from some of her own intemperate words and has accused her critics of taking them out of context, the record is clear. Identity politics is at the core of Judge Sotomayor’s self-definition. It has guided her involvement in advocacy groups, been the topic of much of our public writing and speeches, and influenced her interpretation of law.
There is no reason to believe that her elevation to the Supreme Court will temper this inclination, and much reason to fear that it will play an important role in how she approaches the cases that will come before her, if she is confirmed.
I therefore respectfully urge you not to confirm Judge Sotomayor as an associate Justice of the Supreme Court. Thank you.
CARDIN: Thank you for your testimony.Let me first recognize our chairman, Chairman Leahy, who I understand wants to reserve his place.
LEAHY: Thank you, Senator Cardin. I wanted to thank you and the other senators who have filled in on this prior to -- I was here throughout the -- throughout all the testimony by Judge Sotomayor, and the questions asked by both Republicans and Democrats are reserved by time.
I do welcome all the witnesses, who are both for and against the nominee. They -- Senator Sessions and I joined together to make sure that everybody was invited, everybody was given a chance to testify. And if any of you wish to add to your testimony, the record will be open for -- for 24 hours for you to do that.
Thank you very much.
CARDIN: Thank you, Mr. Chairman. Mayor Bloomberg, let me start with you, if I might, in my questioning. There’s been a lot of discussion about the Puerto Rican Legal Defense and Education Fund, including during this panel discussion. And Judge Sotomayor served on the board and had nothing to do with the selection of individual cases from the point of view of its content, but served in a voluntary capacity with that board.
And first I’m going to quote from you, and then give you a chance perhaps to expand upon it, where you have been quoted as saying, “Only in Washington could someone’s many years of volunteer service to a highly regarded nonprofit organization that has done so much good for so many, be twisted into a negative, and that group has made countless important contributions to New York City.”
I just want to give you a chance to respond to Judge Sotomayor’s service on the Puerto Rican Legal Defense and Education Fund.
(UNKNOWN): Well, this is an organization that has defended people who don’t have the wherewithal to get private counsel or don’t have traditions of understanding the law, and it happens to focus on people mainly who come from Puerto Rico and have language problems, in addition to a lack of perhaps understanding of how our court system works.
And it provides the kind of representation that we all, I think, believe that everybody that appears before a judge and before the law deserves. They raise money privately to pay lawyers to defend. I don’t agree with some of their positions and I agree with other ones. But having more of these organizations is a lot better than having less. At least people do have the option of getting good representation.
CARDIN: Thank you. Mr. Henderson, during the hearing of Judge Sotomayor, we had a chance to talk a little bit about the voting rights and the recent case before the Supreme Court, and the fact that one justice questioned the constitutionality, in fact pretty well determined the constitutionality of the -- of the Voting Rights Renewal Act, saying it was no longer relevant.
Judge Sotomayor, during her testimony, talked about deference to Congress, the fact that it was passed by a 93 to 0 vote in the United States Senate and by a lopsided vote in the House of Representatives, the 25-year extension. I just want to get your comments as to whether the Voting Rights Act is relevant today and your confidence level of Judge Sotomayor as it relates to advancing civil rights for the people of our nation.
HENDERSON: Thank you, Mr. Chairman, for your question. Let me back up for just a minute and say that these hearings have really been a testament to the wisdom of the founding fathers in setting up a three-part system of government, with the president making a nomination for an associate justice on the Supreme Court, and the Senate Judiciary Committee providing its advice and consent.
Under our system of government, the Senate and the House have a particular responsibility to delve deeply into the constitutional rights of all Americans, particularly around the right to vote. Voting really is the language of democracy. If you can’t vote, you don’t count. And the truth is that notwithstanding the 15th Amendment to the Constitution, the 13th and 14th Amendments, African Americans, Latinos, women, other people of color were often denied their right to vote well into the 20th century.
It took not just those amendments, but actually a statute enacted by this Congress to ensure that the rights of Americans to vote indeed could be preserved, and it was only in the aftermath of the ’65 Voting Rights Act that we have seen the expansion of the franchise and democratization -- small “d” -- of our, you know, republic in a way that serves the interests of the founders.
Having said that, Congress reached a decision in reauthorizing the Voting Rights Act in 2006 that this law was necessary. Sixteen- thousand pages of the Congressional Record speak eloquently to that important interest. The fact that this issue was held both with congressional review and also a national commission set up by the Lawyers Committee for Civil Rights and others in the civil rights community, holding hearings around the country added to the record that was created.
The fact that this bill passed -- rather the reauthorization of the Voting Rights Act -- 390-33 in the House and 98-0 in the Senate, speaks eloquently about the important need of this act and the continuing need for it.
So the fact that some on the Supreme Court found otherwise doesn’t disturb me at all. There is a need for it; that need continues, and notwithstanding evidence.
CARDIN: Well, thank you for correcting my numbers on the number that had voted. I appreciate that.
I just want to ask Mr. McDaniel a quick question, and that is, during the confirmation hearings both Democratic and Republican senators have been urging from our nominee that you need to look at what the law is, and you can’t judge based upon emotion. You have to do -- you have to follow the precedents of the court.
And I have a simple question to you in the Ricci case. Do you believe that the Sotomayor decision with the three-judge panel was within the mainstream of judicial decision-making when that decision was reached?
MCDANIEL: Senator, I do believe that. And to hear the stories of these firefighters in person, I -- I don’t have any reason not to use the word empathy. I have a great deal of empathy for the circumstances that they have described, and I don’t know that I have a great deal for how the city fathers handled the matter.
But by the time it made it to the 2nd Circuit I believe that the panel did what the law required, and I don’t think that there is a just legal criticism for the way that the panel handled the matter. And the fact that the Supreme Court chose to change the law in a bare majority also is their prerogative.
CARDIN: Thank you very much. Senator Sessions?
SESSIONS: Thank you. Thank all of you. It’s a very important panel. And actually much of your testimony was moving, and I appreciate it. And I think you’re calling us to a higher level of discussion on these issues because they go to the core of who we are as Americans. And I just want to share that. We are worried about the Second Amendment.
I will just ask the mayor that you signed a brief in favor of the D.C. gun ban, which would bar even a handgun in someone’s home. So I would assume you would be agreeable with the opinion of Judge Sotomayor and her view. We’ve got different views about these things.
Mayor, I want to tell you, I appreciate your leadership. It’s a tough job to be mayor of New York. You’re showing strength and integrity. Mr. Morgenthau, you’re the dean of prosecutors. I hear many people over the years that have worked for you and they’re very complimentary of you, and I know you’re proud of this protege of yours who’s moved forward.
MORGENTHAU: Senator, may I tell you that my grandmother was born in Montgomery, Alabama.
SESSIONS: I am impressed to hear that. (LAUGHTER) I feel better already. That’s good. (LAUGHTER) Mr. Attorney General, thank you for your able comments. And, Mr. Henderson, it’s good to work with you.
Senator Leahy and I are talking, during these hearing, we’re going to do that crack cocaine thing that you and I have talked about before. We got to...(LAUGHTER)
HENDERSON: Thank you, Senator. I appreciate it. (CROSSTALK)
SESSIONS: Let me correct the record.
(UNKNOWN): You need to rephrase it, Senator. (LAUGHTER) Please rephrase.
SESSIONS: I misspoke.
HENDERSON: No. Quite all right.
SESSIONS: We’re going to reduce the burden of penalties in some of the crack cocaine cases and make them fair. So, Mr. Ricci, thank you for your work.
I would say, Mr. Henderson, that I said the PRLDEF legal defense fund is a good organization in my opening statement. And I think it has -- it has every right to advocate those positions that it does, but the nominee was on the board for a long time, and I did take some positions that she rightly was asked about, whether or not she agreed to it, especially during some of those times she was chairman of the litigation committee.
But I value the -- these -- I value that groups can come together and file lawsuits and take the matter to the court. Just briefly, Mr. Kirsanow, on a slightly different subject than you started -- I think you probably know this answer -- but could tell us for the purpose of this hearing, as briefly as you can, what the concern is in the Voting Rights Act?
It’s not that we’re against -- anybody’s against the voting act. I -- I voted for it. But there are some constitutional concerns. Could you share precisely what that is?
KIRSANOW: Sure. And specifically, with respect to the latest Supreme Court decision related to that, what was articulated is that the pre-clearance provisions of the Voting Rights Act pertain to a legacy of discrimination that occurred in many states where poll taxes and literacy tests were being imposed on black citizens.
However, in this particular case, the often critical subdivision came into existence after all of the -- the legacy of this administration had actually occurred or even after the Voting Rights Act itself had been passed. And the question is, how could it be that you’ve got a pre-existing law that is almost -- for lack of a better term -- ex post facto applying to an organization that came into existence after the law was in effect.
There was no history of discrimination or denials of equal protection or denial of voter rights by this particular political subdivision. So it was peculiar in that regard, and I think there were several justices who evinced some concern about the approach in that particular case. SESSIONS: Thank you. It’s just -- there are two sides to that story. And we passed the bill, and we extended it, and all of it had some angst and worry.
I’d said I wanted to vote for it, and we did. We extended it for probably longer than we should have, and not that it would ever end. Huge portions of it may never end, but some portions of it may not be needed to continue.
Let’s -- Lieutenant Vargas, that was a moving story you gave us. Let me just ask you this. Do you think that other members of the fire department, had they studied as hard as you and mastered the subject matter as well as you did, could have passed the test -- more of them would have passed if they’d studied as hard as you?
SESSIONS: You think you...
VARGAS: Absolutely. I studied with a group of them, and they all supported me and what I was doing, because they knew the effort that I put in. And -- and they were right there. We really weren’t all that far behind.
And, you know, minorities would have been promoted. That’s something that -- that continues to get left out. There would have been minorities promoted to captain, minorities promoted to -- to lieutenant, as well.
And, you know, when you take these exams, sometimes you have winners and sometimes -- you know, but you go into that situation knowing that that’s going to be the case.
SESSIONS: Mr. Kirsanow, you indicated that all the judges -- I believe your phrase was -- on the Supreme Court rejected the standard of review that the panel -- Judge Sotomayor’s panel set for the firefighter exam. Is that right?
KIRSANOW: Senator, even the dissent had a different standard. It was good cause standard, which was given a little bit more definitiveness to the approach that defendants could take in defending.
As you know, Title VII has a safe harbor of job-related consistent with business necessity. If you can establish that, in fact, the -- that the firefighters took were job-related, consistent with business necessity, then only under those -- the only way you could show a disparate impact is if those tests weren’t made. Even the dissent said it should have been sent back on remand.
SESSIONS: Thank you. And, Ms. Chavez, I noticed one thing. According to the ABA statistics, only 3.5 percent of lawyers in America in 2000 were Hispanic, yet they -- Hispanics make up 5 percent of the federal district court judges and 6 percent of circuit court judges. Would you comment on that?
CHAVEZ: Well, first of all, I think it’s important -- you know, there’s been a lot of attention focused on the phrase a “wise, Latina woman.” I used it myself, obviously, ironically, in testifying today.
But I think it’s important to read Judge Sotomayor’s entire speech, because, in fact, it wasn’t just that she was saying a wise, Latina woman would make a better judge. What she was saying was that the race, ethnicity and gender of judges would and should make a difference in their judging.
And she says in the speech itself -- she says she doesn’t know always how that’s going to happen, but she even cites some studies, sociological studies that take a look at the way in which women judges have handed down decisions and makes the case that women judges decide cases differently than men do, and she speaks of this approvingly.
And she talks about statistics and how few Latinos there are on the bench. And the statistics that you just cited come from an article that I wrote in retort (ph) to the -- the statistics that she used.
I bring that up because inherent in that analysis of hers is the notion that there ought to be proportional representation on judicial panels, that we ought to be selecting judges based on race, ethnicity and gender, and that we ought to have more or less proportional representation.
And I have to say that, you know, that really, I think, comes very close to arguing for quotas, a position, by the way, that she has taken with -- when she was with the Puerto Rican Legal Defense and Education Fund. By the way, she was not just on the board; she actually signed some memorandum. Those are in the record, and I’ve cited some instances of that in my written testimony.
And the point is that, if there is so-called under-representation of some groups, it means there’s over-representation of others. And I said in my testimony that, if we are concerned about the number of Latino judges, first thing you need to be a judge is a college degree and a law degree.
And, in fact, if just using Judge Sotomayor’s own statistics, if anything, if you look at the number of attorneys who are Latino at the time that she was writing, Hispanics were actually somewhat over-represented on the judicial bench.
I reject all of that. That doesn’t bother me in the least that they are over-represented. I think we should not be making ethnicity and race or gender a qualification for sitting on the bench or being a firefighter or being a captain or lieutenant on a firefighting team. I think we ought to take race, ethnicity and gender out of the equation.
SESSIONS: Thank you.
WHITEHOUSE: Senator Durbin?
DURBIN: Ms. Chavez, do you think that Judge Sotomayor’s being awarded the Pyne award at Princeton for high academic achievement and good character being summa cum laude and Phi Beta Kappa was because it was a quota, that they wanted to make sure there was a Latina who received that?
CHAVEZ: No, I don’t. And in fact, what is interesting about Judge Sotomayor’s tenure at Princeton University is that she has said that she was admitted as an affirmative action admittee because her test scores were not comparable to that of her peers.
But she has also has talked about what happened to her when she got there, and that she recognized that, in fact, she was not particularly well-prepared, that she did not write well and that one of her professors pulled her aside and said she had to work on her writing skills.
(UNKNOWN): So that would...
CHAVEZ: I admire...
(UNKNOWN): Excuse me. That would make it a pretty amazing story, then...
CHAVEZ: That’s right. And I wish that that was the story that she was telling Latinos, that she...
(UNKNOWN): I think the story of her life that I’m describing...
CHAVEZ: Well, I wish that what she was telling Latinos is that, if you do what Ben Vargas has done; if you do what Frank Ricci has done; if you take home the books and you study them, and you memorize what you need to know so that you can pass the test like I did when I took home grammar books and learned how to write standard English, that that should be the story, not that she should be insisting on racial quotas and racial preferences.
(UNKNOWN): Ms. Chavez, I think that the story of her life is one of achievement, overcoming some odds that many people have never faced, in her family life and personal life.
Mr. Morgenthau, when you were alerted about her skills in law school, did they tell you that they had an opportunity, here, for you to hire a “wise Latina lawyer”?
Is that what you were the market for?
MORGENTHAU: Absolutely not. I mean, I took one look at her resume, you know, summa cum laude at Princeton, Yale Law Journal, and I said -- and then I talked to her, and I thought she was common-sense and judgment and willingness to work. The fact that was Latina or Latino had absolutely nothing to do with it. And may I just use this opportunity to say that I was one of the founding directors of the Puerto Rican Legal Defense Fund.
And the reason I did that was I thought it was important for what was then a way-underrepresented minority. You know, you’re looking back 35, 40 years -- to have an organization which was dedicated to help people in housing court, discrimination cases.
So I urged her to join the Puerto Rican Legal Defense Fund. And, I mean, I had become a life member of the NAACP in 1951. I’d been on the National Commission of the Anti-Defamation League.
I think that, you know, one of the great strengths of the United States is its diversity. And -- but we’ve got to help people from the various minority groups make their way and advance.
And I must say I’m very critical of some of my friends and relatives who want to forget where they came from. And it’s to her credit that she remembers where she came from.
(UNKNOWN): And, Mayor Bloomberg, I believe you had a quote that I read about Washington being, maybe, the only place -- would you recall that quote on the Puerto Rican Legal Defense Fund?
BLOOMBERG: Yes, I think that public service is something that, certainly, you, Senator, know the value of and the satisfaction when you do it. And in New York City, we value those who are wiling to give their time and help others. They walk away, in many cases, from lucrative careers to serve as public defenders or outside of the legal profession in myriad other ways.
And the fact that the organizations that they work for sometimes do things that you or I disagree with doesn’t take away from the value that they provide in other things that they do.
(UNKNOWN): I just made a note the other day. This is my third nomination for the Supreme Court. I’ve been honored to serve on this committee and consider three nominees. The two previous nominees, Chief Justice Roberts, Justice Alito, both white males, and the questioning really came to this central point. “Do you as a white male,” to each of these nominees we asked, “have sensitivity to those unlike yourself”?
Minorities, disadvantaged people. And those questions were asked over and over again.
In this case where we have a minority woman seeking a position on the Supreme Court it seems the question is, are you going to go too far on the side of minorities and not really use the law in a fair fashion?
BLOOMBERG: Senator, isn’t the reason that the founding fathers, at least I assume the reason the founding fathers said nine justices is that they wanted a diverse group of people with different life experiences who could work collaboratively and collectively to understand what the founding fathers meant generations later on.
And so the fact that I said before in my testimony I do not think that no matter how compelling Justice Sotomayor’s life experience and biography is, that’s not the reason to appoint her. Certainly we benefit from having a diverse group of people on the Court in the same way as my city benefits from a diverse group of citizens.
(UNKNOWN): Mr. Chairman, if I could ask one last question. I might say, Mr. Mayor, you’re getting dangerously close to empathy. But I happen to agree with you.
Mr. Morgenthau, when Judge Sotomayor worked in your office did you notice whether or not she treated minorities any differently in...
MORGENTHAU: She was right down the middle, Senator. She didn’t treat minorities any differently than she treated anybody else. Right down the middle. Looked at the law. Tough but fair. (UNKNOWN): Thank you very much. Thank you, Mr. Chairman.
LEAHY: Thank you. Senator Sessions indicated that Senator Graham will be next to inquire.
GRAHAM: I’d like to thank my colleagues for the courtesy here. I’ve got to run back and do some things. This has been a very good panel by the way. I think we’re sort of grappling with issues right here in the Senate the country is grappling with, and I’ll try to put it in perspective the best I can.
Now Ms. Chavez, identity politics I think I know what you’re talking about. I asked the Judge about it. It’s a -- a practice of politics I don’t agree with and I think overall is not the right way to go. But having said that I’ve tried to look at the Judge in totality.
The well-qualified and ready from the ABA when it was given to Judge Alito and Roberts, we all embraced it, and I used it a couple of times to say that if you thought this person had a rigid view of life or the law it’d been very hard for the ABA to give them a well- qualified rating. Does that impress you at all that the ABA had a different view in terms of how she might use identity politics on the bench?
CHAVEZ: Well I’m not sure they dealt with that question. I think they did deal with her record as a judge and the decisions that she has made as a judge. The ABA and I often disagree on...
GRAHAM: Ma’am, I totally understand. (CROSSTALK)
GRAHAM: I totally understand, but I guess the point I’m making, I don’t want to sit here and try to have it both ways. You know say the ABA’s a great thing one day and means nothing the next.
Have you ever known a Republican political leader to actively try to seek putting a minority in a position of responsibility to help the party?
CHAVEZ: I think that the idea of giving due deference to making sure that people are representative in -- in diverse ways is a standard way of operating -- in political circles. I don’t...
(UNKNOWN): Well, the only reason I mentioned that is the statement you made, the way we pick our judges should be based on merit, the way we pick our firefighters. I totally agree with that. I mean, it’s -- but politics is politics in the sense that I know that Republicans sit down and think, OK, we’ve got some power now. Let’s make sure that we let the whole country know the Republican Party is just not a party of short white guys.
(UNKNOWN): I think that’s different, though, Senator, then, as she suggested in her speech that there are to be some sort of proportion...
(UNKNOWN): Yes, that’s right. You can go -- that’s right. I -- I totally agree.
(UNKNOWN): I -- I -- and I think that’s farther. And I also think it matters that we’re not just doing that because we want to see diverse opinions. But it seems to me that what she was saying in her speech was that we do that because blacks, Latinos and women are different, think differently, and will behave differently. I mean, she said that explicitly, that it...
(UNKNOWN): Yes, I...
(UNKNOWN): ... maybe as a result of physiological differences. I think any white man that said such a thing about minorities or women would be laughed out of this room.
(UNKNOWN): Well, since I’m the white guy that said that, I agree with you. (LAUGHTER) But the point is that I’m trying to get the country in a spot where you’re not judged by one thing, that we just can’t look at her and say that’s it. You know, when I looked at her, I’d see speeches that bugged the hell out of me, as I said before, but I’ll also see something that very much impresses me.
And the ADA apparently sees something, and Louis Freeh sees something, and Ken Starr sees something. And, you know, what I want to tell the country is that Republicans very much do sit down and think about political picks and appointments in a political sense to try to show that we’re a party that looks at all Americans and intends to give an opportunity. And that’s just life, and that’s not a bad thing.
Now, Mr. Ricci, I would want you to come to my house, if it was on fire. (LAUGHTER)
And I appreciate how difficult this must have been for you to bust your ass and to study so hard and -- and to have it all stripped at the end. I just want you to know if the country that we’re probably one generation removed to where no matter how hard you study, based on your last name or the color of your skin, you’d have no -- no shot. And we’re trying to find some balance.
And in your case I think you were poorly treated, and you did not get the day in court you deserve, but all turned out well. It was a five-four decision, and maybe we can learn something through your experience. But please don’t lose sight of the fact not so very long ago, the test was rigged a different way.
Mr. Vargas, you’re one generation removed from where your last name would have been it. Do you understand that?
VARGAS: Yes, sir.
(UNKNOWN): What did you go through personally to stand with Mr. Ricci? What came your way? Does anybody criticize you?
VARGAS: I received lots of criticism.
(UNKNOWN): Well, tell me the kind of criticisms you had.
VARGAS: But I have -- I have a thick skin. I believe that I’m a person with thick skin.
(UNKNOWN): Well, did people call you an Uncle Tom?
VARGAS: Yes, sir.
(UNKNOWN): People thought you were disloyal to the Hispanic community? VARGAS: Absolutely, yes.
(UNKNOWN): Well, quite frankly, my friend, I think you’ve done a lot for American-Hispanic community. My hat’s off to you.
VARGAS: Thank you, Senator.
(UNKNOWN): Finally, Mayor, having to govern a city as diverse as New York must be very, very difficult. It is also a pleasure?
BLOOMBERG: It is a pleasure, and we -- I said before you came in that some of Judge Sotomayor’s views I don’t happen to agree with some of her decisions. I think on Ricci, for example, I disagreed with what the city of New Haven did.
In New York City, you should know that our city is a defendant in a case, a class action suit in the Justice Department where the challenge is to entry-level tests for our fire department, one given in 1999 before I became mayor, and one afterwards in 2002. And we’re defending it on the grounds -- the suit alleges that the written portions of the test were not germane to the job and had a disparate impact.
I’ve chosen to fight this. I think that in fact the tests were job-related and were consistent with business necessity. This is a case that’s going to go to trial sometime later this year. What we’ve tried to do is to approach it from a different point of view, aggressive recruiting to try to get more minorities to apply to be firefighters. And we have revised our test. We’ve had a substantial increase in the number of minorities taking the test, passing the test, and joining our fire department.
I really do believe that that’s a better way to solve the diversity problem, which does affect an awful lot of fire departments around this country, rather than throwing out tests and thereby penalizing those who pass the test.
CARDIN: Senator Klobuchar?
KLOBUCHAR: Thank you. I’m going to let Senator Specter, who is -- I guess I’m more senior to him only because of a technicality, but also he’s been here longer. So I’m going to let him go and then I will go after.
CARDIN: Senator Specter?
SPECTER: No, no, I’ll defer to Senator Klobuchar. (LAUGHTER)
KLOBUCHAR: OK. Here we go. I first wanted to thank both firefighters for your service. As a prosecutor, we worked extensively on arson cases and I just got a little sense of what you go through every day and how dangerous your job is. So thank you for that.
I just wanted to follow up on one thing. Ms. Chavez, when you talked about your clearly know Ms. Sotomayor’s history and her record, but when you talked about how she got into Princeton, you didn’t point out the one thing that I think Mr. Morgenthau did, and that is that she ended up graduating from there summa cum laude, and that certainly is all about numbers and grades, I would think, and not affirmative action. Would that be correct?
CHAVEZ: That’s absolutely right, and I wish that was the message that she was giving to her Hispanic audiences, that she was able to do it; that she was able to overcome adversity; that she was able because she applied herself and worked hard and put in the hours studying to be able to succeed. And that is not the message.
KLOBUCHAR: OK. But she also was valedictorian of her high school class. Where I went to high school, that was all numbers and grades and nothing to do with anything else. Is that true?
CHAVEZ: I am only quoting what she has said herself. I don’t have any idea what her test scores were. I don’t think anyone but she does. But she has said that she got in to Princeton and also Yale based on the affirmative action programs of those universities.
KLOBUCHAR: OK. Mr. Morgenthau, it’s just an honor to meet you. When I was district attorney, I hired a number of people that learned everything they knew from you and your office, so thank you for that.
And in fact, when I did my opening statement, I talked about a quote you gave once about how you hired people, and you say, “We want people with good judgment because a lot of the job of a prosecutor is making decisions.” You said, “I also want to see some signs of humility in anybody that I hire. We’re giving young lawyers a lot of power and we want to make sure that they’re going to use that power with good sense and without arrogance.”
Could you talk about those two qualities -- the good judgment and the humility, and how you think those qualities may be or may not be reflected in our nominee?
MORGENTHAU: Well, I’m -- I mean, I think she met all those standards. I -- I interviewed her and talked to her, thought she was a hard worker. I thought she would relate to the victims and witnesses. I thought she had humility. I thought she was fair. I thought she’d apply the law.
She met all of those standards that I thought were important to me, and I hired her entirely on the merits, entirely on the merits, nothing to do with her ethnic background or anything else. She was an outstanding candidate on the merits.
KLOBUCHAR: There is also a letter that we received from 40 of her colleagues. And one of the things I’ve learned is that, well, maybe sometimes someone does well in their workplace by their superiors, sometimes their colleagues think something else. And here you have her colleagues talking about the long hours she worked, how she was among the very first in her starting class to be selected to handle felonies.
Could you describe how your process works in your office and how certain people get to handle felonies sooner than others?
MORGENTHAU: Well, it’s (inaudible) we have six trial bureau of about 50, 55 lawyers in each one. And it’s up to the bureau chief, the deputies to decide who should move along.
And I know one of the people who wrote that letter had gone to -- to Princeton and to Yale Law School and studied for the bar with Sonia. And I said to him, “I guess she was a little bit ahead of you.” And he said, “She was a full step ahead of us.”
And she has the judgment, the gravitas, the knowledge of people, the ability to persuade victims and witnesses to testify. We thought she was a natural to move up to the Supreme Court. KLOBUCHAR: Very good.
Mayor Bloomberg, I noted today earlier that the -- that Judge Sotomayor has the support of so many law enforcement organizations in New York, National District Attorneys Association, could you talk about the -- what that support means and how -- I know you’ve had success along with Mr. Morgenthau’s amazing record of bringing crime down in New York, working with the police, working with the county attorneys as a team and, while our nominee was a small part of that, one -- one assistant district attorney in -- as part of a big effort, what difference that has made to New York?
BLOOMBERG: Well, I think, Senator, the reason that we’ve been able to bring crime down and improve the schools and the economy and all of these things is because I’ve never asked anybody or considered their ethnicity, their marital status, orientation, gender, or religion, or anything else. I just try to get the best that I possibly can to come to work for the city, and I think the results are there.
When I interview for judges -- and I’ve appointed something like 140 so far in the last seven-and-a-half years, I look for integrity, and professional competence, and judicial temperament, and how well they write, and their appellate records, and their reputation for fairness and impartiality.
But also we extensively talk to members of the bar and the bench to see what professionals who have to work with the candidate day in and day out think. It’s very easy to be on your best behavior when you come to Washington and have to testify before a group like this, but the truth of the matter is, your real character comes out when you do it day in and day out over a long period of time. And that’s what your contemporaries see.
So the fact that a lot of people who’ve worked with this judge think that she is eminently qualified to move up carries an awful lot of weight with me. They can -- they know a lot more about her and her abilities than you or I could ever find out with the short period of time that we interact with her or read of -- read about her decisions, sort of out of context of what was going on at the time, and we don’t have the ability to do all of the research that her contemporaries have been doing.
KLOBUCHAR: So you’re saying that -- you give that a lot more weight than all the questions we’ve been asking for the last three days?
BLOOMBERG: No, I wouldn’t -- I wouldn’t go quite that far, but I do think that people who work with somebody for a long period of time really do get to know them. And most importantly, people who are on the other side of the issues, on the other side of the bench, if they think that even though -- and sometimes they win and sometimes they lose -- their views, to me, matter an awful lot more.
KLOBUCHAR: I would agree. Thank you. (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 3 of Thursday’s testimony is now available here.
Part 5 of Thursday’s testimony is now available here.
Part 7 of Thursday’s testimony is available now here.
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.