Opinion: Sotomayor hearings: The complete transcript -- Day 4, Part 7
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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.
On 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:
WHITEHOUSE: Senator Hatch?
HATCH: Well, thank you, Mr. Chairman. Mayor, it’s always good to see you. I appreciate the joy and the verve of which you run New York City. I know that it’s a tough city to run, but you do a great job.
BLOOMBERG: Thank you.
HATCH: And, Mr. Morgenthau, we all respect you. You know that. I know that. And you’ve given a long public service that is of great distinction. It’s always good to have attorneys general from any state here, and we’re grateful to have you here, Mr. McDaniel. Mr. Henderson and I have been friends for a long time.
We sometimes oppose each other, but it’s always been with friendship and kindness. We’re grateful to have you two -- you two great people here who do such very important work in the city of New Haven. I know it takes guts to come here, and we appreciate you being here.
Mr. Kirsanow, let me just -- and, certainly, Mr. Kirsanow and Linda Chavez, we -- we recognize your genius, too, and the things that you bring to the table. Let me just ask you this, Mr. Kirsanow, because I was....
...the one who raised the Ricci case to begin with. I -- I have two related questions about the Ricci case.
Do you agree with Judge Cabranes and -- and the other five judges who agreed with him that this was a case of first impression in the Second Circuit, which means that there was no precedent?
KIRSANOW: That’s correct, Senator. We took a very strong look as to whether or not there was anything on point. There may have been some peripheral cases that wouldn’t provide any definitive guidance. But as I indicated in my statement, to the extent there were cases to provide guidance, maybe equal protection clause cases -- Wygant’s one and so forth -- those were the kind of cases you’d have to look through, but none -- none under Title VII.
HATCH: Well, explain what was the issue of first impression that these six judges found.
KIRSANOW: It was...
HATCH: They were in the minority 7-6, but they -- they -- Judge Cabranes got very alarmed, because this was a summary order that ordinarily they wouldn’t have seen, but he caught it in the newspaper, asked to see it, and then said, ‘My gosh, this is a case of first impression. We ought to do more than just a summary order on it,’ which is something that I’ve been very critical of.
KIRSANOW: Senator, it was the tension between two provisions of Title VII and...
HATCH: You’re talking about disparate treatment and disparate impact?
HATCH: And this was...
KIRSANOW: And trying to balance the two. And keep in mind that the 1991 amendments were really a product of Griggs v. Duke Power and its progeny. And remember that Griggs was really a response to the difficulty in demonstrating intentional discrimination so that there was a resort to disparate impact to try to help prove the case.
So whether you give primacy to intentional discrimination or disparate impact was, what was trying to be determined here? Or not necessarily primacy, but trying to evaluate both consistently with the purposes of Title VII.
HATCH: Well, please explain the difference between what the Supreme Court split 5-4 and what all nine of the justices on the Supreme Court, why they criticized Judge Sotomayor’s decision.
(UNKNOWN): Had to do with the process by which the decision was reached. Even the dissent, Justice Ginsburg, noted in (inaudible) 10 that this is something that ordinarily should have been sent back on remand because it was to determine whether -- that is, to determine whether or not there was good cause for taking the decision New Haven took.
The majority, on the other hand, said the city of New Haven had to have a strong basis in evidence before it discarded the test results.
So there are two separate standards by both the majority and the dissent, but neither agreed with the manner in which the Sotomayor panel disposed of the case.
HATCH: So all nine justices on the court agreed that the appropriate law wasn’t followed.
HATCH: And five of them said the city of New Haven was wrong.
HATCH: So the firefighters won.
(UNKNOWN): Now, Mr. Vargas, I just wanted to make that clear, because I don’t think a lot of people realize that, and that’s a very, very big thing to me. Mr. Vargas, your comments about your sons were powerful. What difference does it make for them whether merit or race determines opportunity? And what difference does this case mean for them?
VARGAS: I believe this is going to be a greater opportunity for them in the future because they’re not going to be stigmatized that way, they’re not going to be looked at that ways, and they’re going to rise and fall on their own merits...(CROSSTALK)
HATCH: And that’s one reason why you brought this case...
VARGAS: That’s absolutely right.
HATCH: Mr. Ricci, I only have a few seconds, but let me say this. I want to thank you for your service for protecting your fellow citizens up there.
As I understand it, the City of New Haven went to great lengths to devise this promotion test that was -- the lengths were fair, objective -- the test was fair, objective and not tilted toward or against any demographic group. In fact, I understand the test was not questioned.
They worked on the kind and context of the question so that they were relevant to the job, but would not create a hurdle for anyone. They used both a written and an oral exam format, right?
Is your understanding of how they worked to put together the test and did -- that that’s the way they put it together? And did that make you believe that you would be judged on your merits?
RICCI: Yes, Senator. The rules of the game were set up and we have a right to be judged fairly. And just by taking the test we knew that the test -- we didn’t even need to go any further -- just by taking the test we knew that the test was job-related and measured the skills, ability and knowledge need for a competent fire officer.
HATCH: Well, did that make you see this as a genuine opportunity that might, indeed, be open to you?
RICCI: Yes, Senator.
HATCH: Now, tell me more about your expectations when you looked at this opportunity. You were no doubt familiar with the racial dynamics that existed in New Haven at the time. Anyone involved in their community anywhere would be aware of that.
Do you think that at all, that because the test was so rigorously and fairly designed that any of those outside racial dynamics would become an obstacle to your future service in the fire department as long as you were qualified for the job?
RICCI: No. Myself and all 20 plaintiffs, including other firefighters that didn’t join the suit, including African Americans and Hispanics, I think we all had the expectation when we took the test that the test would be fair and job-related and that it was going to be dictated by one’s merit on how well you did you did on the exam, not by the color of your skin.
HATCH: OK. General, I just have one statement to make. You made the comment that the Supreme Court changed the law by a majority. They didn’t change the law. They actually recognized there was a case of first impression here that had to be decided, and they decided it. They didn’t change any laws.
(UNKNOWN): And it wasn’t by their majority. I mean nine of them said the case should be reexamined. Five of them said that New Haven was wrong. And I just wanted to make that clear so that everybody would understand it because this is not some itty-bitty case. This is one of the most important cases in the country’s history, and that’s why it’s caused such a furor.
And I want to compliment all of you firemen who have been willing to stand up in this issue because this is an important issue for people of whatever race or gender or ethnicity. And I -- you know you’ve taken a lot of flack for it, and you shouldn’t. Thank you, Mr. Chairman.
LEAHY: Thank you. Senator Specter?
SPECTER: Thank you, Mr. Chairman. Mr. Ricci, I agree with just about everything you said, but you had a right to go to federal court and get justice that racial statistics are wrong. What we sought was even-handed justice, and as the court finally decided, you have been deprived of your rights and made a change. The question that I have for you, do you have any reason to think that Judge Sotomayor acted in anything other than good faith in trying to reach a fair decision in the case?
RICCI: That’s beyond my legal expertise. I am not an attorney or a legal scholar. I simply welcome an invitation by the United State Senate to come here today, and this is our first time that we’ve gotten to testify about our story. So I can’t comment on...
SPECTER: Well I think that it’s very good that you’ve been here and had a chance to testify. I agree with that totally. And there’s enormous appreciation for the work the firefighters do.
I had a lot of association with the firefighters in my day as a city official in Philadelphia, and on the Homeland Security been in the forefront of funding for firefighters. And what the firefighters did on 9/11 was -- words are inadequate: heroism and bravery and the loss of lives and the suffering.
Lieutenant Vargas, again, agree with all of your testimony. In your work you have to get it right the first time.
Well, when you have 5-4 decisions it’s hard to say which way the ball bounces, especially when they get reversed from time to time. But I would ask you the same question I asked of Mr. Ricci: whether you have any reason to doubt the good faith of Judge Sotomayor in coming to the conclusion she did.
VARGAS: I would have to defer to pretty much the same response: that we were invited here to give our story, and we wanted to focus on that. And I -- I really didn’t took much to that, no.
SPECTER: OK. Well that’s fair enough. And it’s up to the Senate. We hope we get it right. But all anybody can use is their best judgment. Mr. Boies, when you place so much reliance on Ricci v. Adista Funnel was a basis for opposing Judge Sotomayor. Isn’t that case just overloaded with subtlety and nuance? Could’ve gone the other way? Could you really place much reliance on criticism of Judge Sotomayor as a disqualifier?
BOIES: Well first of all, Senator Specter, I think I actually went back to criticize Judge Sotomayor’s activities going all the way back to Princeton University, so I don’t think I relied exclusively.
I think what -- and I would answer the questions that you asked Mr. Vargas and Mr. Ricci. I do think that Judge Sotomayor, based on her history, her involvement with the Puerto Rican Legal Defense and Education Fund, her writings, her activism, has indicated a preference to eliminate testing. She has fought to -- to get rid of civil service testing. She has challenged tests as being inherently -- standardized tests as being inherently unequal and as always arriving arriving at a disparate impact.
And I think that activism, that involvement, going back decades, did in fact influence the way she approached this case. So I think it is relevant. And that is the reason I’m criticizing it. It’s not just her one decision in one case. It is her whole body of work, her whole life experience and the views that she has expressed over several decades.
SPECTER: Well, we consistently have nominees for the Supreme Court come to this panel, Justice Alito, Chief Justice Roberts, Justice Thomas, on both sides of the ideological divide, and what they do in an advocacy position is customarily set aside to make an evaluation as to their -- their competency.
When you talk about being a woman or being an Hispanic, it’s my view that that kind of diversity is enormously helpful.
I go back to a question I asked Attorney General Meese more than 25 years ago. If you have -- the debate was raging on affirmative action even more than it is now -- if you have two people of equal competency and one is a minority, Attorney General Meese, not known for being a flaming liberal, took -- took the minority position.
And my own view is that it’s time we have more women and we had more diversity. And we have to have qualifications -- have to have qualifications. And I think that’s what ultimately determines this nomination.
Attorney General McDaniel, let me ask you a loaded question. You can handle a loaded question.
Do you think, with all of the critical issues we have to face on separation of powers and what the Congress does by way of fact-finding and what is done on the Americans With Disabilities Act and trying to find out about warrantless wiretaps and the Foreign Intelligence Surveillance Act and compensation for the survivors of the victims of 9/11 and the intricate relationship to the State Department influencing the way Congress interprets the foreign sovereign immunity, that there’s a little too much attention paid to the Ricci case -- not that it’s not very important, but there are lot of other matters that are important.
Isn’t this a little heavy on one case?
MCDANIEL: Senator, not only do I agree with you about the other issues that should be given ample attention because of their enormous weight, I think that perhaps the wrong focus of attention even on this case has been applied.
Chief Justice Roberts has said that he would like to ‘narrow standing analyses’ and he would like to be a conservative justice who want to look only at the disagreements between two parties and not go beyond the scope of that.
One of the important issues in the Ricci case was a standing issue, which was there standing to bring action if one had not been denied promotion?
Senator Hatch’s attorney -- own attorney general joined with me in the brief because we thought that that was among the issues that were important and should have been followed under stare decisis. Instead the court expanded standing to someone who had not been harmed under the legal standard.
I think that that is important to consider. I think that it’s important to note that, if they were going to change standing and standards, I think it’s somewhat unfair to put emphasis on the footnote -- for instance, footnote 10 of Justice Ginsberg, which said that, if we are going to change the rules of the game, then we should remand the case back to be reviewed. But that wasn’t critical of the second circuit, in and of itself.
SPECTER: I regret...(CROSSTALK)
MCDANIEL: So I agree with you about your -- your emphasis, or the...(CROSSTALK)
SPECTER: I regret that there’s so little time. Having Mayor Bloomberg and D.A. Morgenthau and (inaudible) Henderson, we’d like to really have a chance to cross-examine...(LAUGHTER) ... except that I agreed with your testimony. Thank you, Mr. Chairman.
WHITEHOUSE (?): Thank you, Senator. Senator Cornyn?
CORNYN: Thank you, Mr. Chairman. I want to extend my appreciation to each of the witnesses for taking your time and -- to be here today. It’s very important. These are -- as we need to remind ourselves, this is a historic time and appointment, and these are very important issues that should not be neglected or overlooked because of the press of other activities.
My own position is that I think, by virtue of her training, her experience and her high achievement, Judge Sotomayor is very well-qualified, all other things being equal.
Unfortunately, because of her speeches and other public statements where she said there’s no such thing as objectivity in the law, which -- the opposite of objectivity is subjectivity. She said there’s no neutrality. And if there’s no neutrality, then I guess all that leaves is bias.
And it really strikes a body blow, I think, to -- to the concept of equal justice under the law. Judges are not policymakers and judges should leave that job to the elected representatives of the people, who reserve the time-honored right to throw the rascals out if they don’t like what we’re doing as elected members of the legislative branch.
So, you know, my -- my concern is what kind of judge would she be if confirmed to the United States Supreme Court, the kind of judge that follows her speeches or the kind that follows the law?
And -- but I just want to say to these firefighters what I told them earlier today when they were kind enough to come by my office. I think, you know, judges make mistakes. They used to say the only lawyer who hadn’t lost a case is one that hadn’t tried one.
And I don’t necessarily hold it so much against Judge Sotomayor that she didn’t rule your way in the case. Unfortunately, I think she did not give it the proper respect and -- and pay it the sort of attention that she should. Because there were real claims there that needed to be resolved by a court.
Every citizen’s entitled to that, to have judges pay attention and not make mistakes by, you know, trying to sweep it under the rug.
And thank goodness that Judge Cabranes found the case, because it almost got slipped through the cracks, and then highlighted it so if you get to the Supreme Court of the United States and the Supreme Court could address this very important -- the important issues that you’ve presented here.
And one of the most important aspects, I think, of this hearing is this provides an opportunity, and it would not have been provided, I think, in large part unless these firefighters had had the courage to do what they’ve done, is for us to refocus our attention on some of these areas like, as Chief Justice Roberts said, he said, ‘It’s sordid business, this divvying up by race, ' and looking at people not as an individual human being, but as a member of a group or because of their sex or their ethnicity or their race.
.... it’s time for this nation, I think, I hope we would all agree, to look at everyone as individuals, and to reward hard work, sacrifice and initiative, the kinds of things that I think, particularly you, Frank and Ben, you -- Frank is the lead (inaudible), but all of the firefighters have helped demonstrate the importance of not divvying up by race, not using de facto quotas.
And I think -- I would have felt a lot better if Judge Sotomayor had said, ‘You know what? This is really an important issue and we should have addressed it, but it slipped through our fingers, but thank goodness it was caught and it was ultimately reviewed.’ But she didn’t.
And I think the idea that the city could throw out a test just because the outcome wasn’t what they wanted is really pretext for racial discrimination. It’s to deny people what they are entitled to because of the color of their skin.
So I just want to ask in the short time I have here, Mr. Vargas, you’ve -- I read earlier a statement that you made to the New York Times about the reason why you’ve gone through these five grueling years of litigation and the abuse that you’ve taken from people who -- who tried to shame you out of standing on your rights and seeing this thing through. Could you just tell the committee what sacrifices you have made, what your family’s made? And why you felt like those sacrifices were so important to vindicate this important right?
VARGAS: Well, let alone the financial sacrifice, but you know, it starts from the moment you get out of the academy. I mean, this was something that I wanted to do. I wanted to advance my career as a firefighter right through the ranks. And you know, the books came with me to work every single day, you know, from the minute I graduated from the academy, right up to when I got promoted to lieutenant. And they kept coming with me right on until I took the captain’s exam.
And once I get promoted to captain, they’re going to continue to come with me as I go up through the ranks. You know, it’s not something that, you know, you can lose sight of. You’ve got to continue to work hard, and I want to instill that in my kids. I want them to see that and I want them to know that this is what America is all about.
You work hard. This is how America was built -- the greatest country in the world because you -- you, as I said before, you rise and fall on your own merits.
(UNKNOWN): Do you hope for a day for your children what -- we mentioned Martin Luther King’s statement previously, that a day when they will be judged by the content of their character and not the color of their skin?
VARGAS: I think our case goes a long way to help in the (inaudible) up for them, and they’re going to benefit from this, and I think we’re going in the right direction now.
(UNKNOWN): I couldn’t agree more. Thank you, Mr. Chairman.
CARDIN (?): Senator Cornyn (?)
CORNYN (?): Thank you, Mr. Chairman. Welcome to all of you. One of the things that I think may have gotten lost in all of this is why tests are important. And I particularly wanted to ask the two firefighters here, Mr. Ricci and Mr. Vargas.
What difference does it make how well you perform on the test, whether you pass it or not? What’s the big deal? What do you really have to show in those tests? And when you’re out performing your duties, what difference does it make whether you pass the test or not? Mr. Ricci, maybe start with you.
RICCI: Thank you, Senator. It’s important to realize that over 100 firefighters die in the line of duty each year and an additional 80,000 are injured. You need to have a command of the knowledge in order to make command decisions. You need to understand the rules and regulations.
Experience is the best teacher, but only a fool learns in that school alone. You have to have a basis to make the right decisions, because firefighters operate in all different types of environments.
I’ve had the proud privilege of training the United States Marine Corps sea berth team, and they responded to anthrax attacks in one of these buildings. I mean, firefighters have to be prepared for the regular house fire to the car accident to the hazardous material incident.
You go to work every day, and we’re like an insurance policy for the American public that they hope they never have to use. But when someone calls 911, within four to five minutes, there’s a fully staffed fire company at your door with no paperwork, and we’re there to answer the call.
And when you show up, the officer has to be competent to lead his men and women of this fire service, career and volunteer across the country, to make the right decision.
KYL: Thank you. That’s a great explanation. Lieutenant Vargas?
VARGAS: There’s not much I can add to that.
KYL: That was pretty good. Well, I -- I appreciate it, and I know that everybody here, regardless of party or position on the nominee or anything else, appreciates what you do and what your colleagues do. And -- and I’m sure I speak for all of us in that regard. One of the things that I wanted to -- to just say briefly is that, I -- I am very proud of our -- I was a lawyer and I practiced law. And -- and I won some, and I lost some, but I always had confidence in our system.
And America is not unique, but there aren’t very many countries in the world like us where we willingly volunteer to put our -- our fortunes, our freedom, in the event that we’re accused of a crime, maybe even our life, if there could be a death penalty involved, our careers, in the case of the suits that you all were involved in. We willingly do that.
And the way we do it is interesting. You all may not know this, but the lawyers here certainly know it. When I filed a case in the U.S. District Court in Arizona, I didn’t know which judge I was going to get. There were about 10. There was one I hoped I didn’t get.
But I knew that the other nine, it didn’t matter. They would all approach -- there were Democrats. There were Republicans. But I didn’t know, because it’s the next one in order, and the lawyers don’t know the order, so it’s almost by lot.
But we had confidence that we could put our client’s issue before the court and that justice would be done, because that’s the way our system works, and over 220 years, the rule of law has been established in this country by judges applying the law fairly and impartially. And over time, the precedents have been built up.
And what struck me about what you all had -- and I’m talking about the two of you -- had to go through is, first of all, you were confronted with a judge who, in a very thorough decision, said, ‘You lose.’ And then you appealed to the Second Circuit and in a per curiam opinion -- and you all know now what that is all too well -- the court didn’t even write about it, said, ‘No, you lose again.’
And then, the day that you got the results from the Supreme Court, just -- what’s the difference between what you felt at the first situation and when you got the news about the Supreme Court, about your confidence in our system?
VARGAS: I -- I tried to say earlier that this is exactly how this country was built. This is why we’re so great, because, you know, you can work hard, and you can go after the things that you want in this -- in this country, and -- and, you know, you’re going to be successful, you know, but you have to apply yourself.
And those are the things that I try to instill in my kids, and I’ll always put that forth, and I’ll speak with my actions so that they can see that it’s a great country, you know? And -- and that’s why you need to work hard.
RICCI: The price of democracy is vigilance. And to be -- to be willing to participate -- and the original feeling was, you know, we always, through our attorneys, always went back to that process and said, ‘This is America. If we keep going forward, the process will work.’ And that, at the end, to be able to look at my son and say, ‘You know, I haven’t been there for you,’ but to look at him and say, ‘This is -- this is an unbelievable civics lesson that, if you participate in democracy, that’s how it all works.’ And I thank you, Senator.
KYL: Well, and I thank you. And I -- I hope that all of you will have confidence in our legal system in the future. And everybody here, again, regardless of position, will really stand in awe at a system which in our country year in, year out has proved to be a very, very good system for our people. Thank you.
CARDIN: Well, Senator Kyl, I want to thank you for your questions and the responses. I think it was the right way for the record to reflect the end of this panel, which has been, I think, very, very helpful to us in the record, on the confirmation process for Judge Sotomayor.
I want to thank Chairman Leahy for allowing me to chair this panel. We’ve had a very distinguished -- all eight of you, we thank you for being here.
I particularly want to thank Mayor Bloomberg for taking the time to come from New York. I mention him because not only he does a great job as mayor, but has had an important role at Johns Hopkins University. And we very much appreciate that.
And to Mr. Morgenthau, you are the model for the nation in the district attorney’s office. And it’s -- it’s a real honor to have you before our committee. And we -- we thank you for your energy and continuation in public service.
And to firefighter Ricci and to Lieutenant Vargas, I personally want to thank you for being here. You put a face on the issues. We -- we look at cases, and we talk about the impact, but it affects real people and real lives and real families. And I think you really have added to today’s hearing by your personal stories.
Each one of us thank you for your public service. And we thank you for your belief in our nation and for the testimony that you have given to this committee. It’s been extremely helpful to each one of us on -- on the Judiciary Committee.
And with that, we are going to take a five-minute recess. When we return, Senator Klobuchar will be chairing the next panel.
KLOBUCHAR: OK, I think we’re going to start our third panel here, if everyone could be seated. I will warn those of you out there, anyone that has asked David Cone to sign a baseball, you must ask all seven of our other panelists, as well. OK. We’re going to start by getting sworn in.
Will you please stand and raise your right hand? Do you affirm that the testimony you are about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God? Thank you.
We’re going to start. I’ll introduce each of you, and then you’ll give your five minutes of testimony. And then we will have questions after that. And we are going to start here with Mr. Freeh. Louis Freeh is the former director of the Federal Bureau of Investigation, whose career in the Department of Justice began in 1975 when he became a special agent in the FBI.
Mr. Freeh has a long and distinguished career as a public servant under both Democratic and Republican presidents. He was appointed by President George H.W. Bush, as a federal district court judge on the Southern District of New York.
He was also a career federal prosecutor in the United States Attorney General’s Office for the Southern District of New York, serving as chief of the organized crime unit, deputy United States attorney and associate United States attorney. He graduated from Rutgers Law School and has an LLM degree in criminal law from New York University Law School. I look forward to your testimony, Mr. Freeh.
FREEH: Thank you very much, Senator. Good afternoon, Senator Sessions. Good afternoon to you.
It’s a great privilege to be before the committee, a committee where I’ve appeared over 100 times. And it’s always a pleasure to be here, many friends on the committee who I’ve seen over the last few days.
So you have a prepared statement from me. And as Senator Sessions knows, I generally don’t read my opening statements, which has gotten me in trouble with OMB over the years. But I thought it might be good just to talk and tell you why I’m here.
You know, I’ve had the privilege to work with great judges and appear before great judges. And let me just mention a couple.
I served on the district court with Constance Baker Motley, who, before she was a judge, you know, had those qualities of fairness and open-mindedness and commitment to the rule of law that I think we wish to see in our judges.
The last case I tried as a judge was in the district of Minnesota, before Judge Devitt. And it was a case which, by the way, Judge Sessions, Senator Sessions and I, worked on together. He was the attorney general of Alabama, a great attorney general, and I was an assistant U.S. attorney working on the case. And it was the murder of a federal judge. It was one of the few tragic times in our history where a federal judge was murdered.
And the case was tried before Judge Devitt. And Judge Devitt, who many of his peers said was the judge from central casting, was the model of judicial commitment. The instruction book, Devitt and Blackmar, is named after him. There’s an award which is probably the most prestigious award that goes to judges named after him. And he was actually one of my mentors when I went on the Southern District bench.
I was sworn in as FBI director by Judge Frank Johnson, who, as someone has mentioned here before, was a legendary judicial hero from Winston County, Alabama, who, with a handful of other Republican (inaudible) by their commitment to the law, their fearlessness, and the honesty and integrity with which they took upon their office.
So it’s my -- it’s my pleasure to recommend to the committee the confirmation of this outstanding judge.
And I want to talk a little bit about her judicial experience. And I think -- and I’ve been here or listening to these proceedings for the last few days -- I think I may be the only lawyer who’s actually been with her in the courtroom.
And since that, in my view and experience, is the best indicator of what someone will do in the future, is how they’ve behaved and conducted and written and decided matters as a justice, as been mentioned before, this candidate has an enormous and rich judicial record. Seventeen years. Thousands of opinions. All the things that you want to look for as you make your evaluation.
And the process by which you’ve come here is quite extensive. You have the president and his reviewers’ own investigation. You have bar associations, this committee. You have the FBI that conducted now three background investigations. I was actually director when the second one was done.
You have any and all information that’s come from the public, from the citizenry, from Americans. You have reputational evidence from other judges, from lawyers who have appeared before her.
My association with her began in 1992. She was a new judge on the Southern District, and we had this tradition where the second-newest judge would mentor the new judge.
Some of us didn’t think it was the wisest rule to have, since I had about nine months on the bench when she was entrusted to my care, so to speak.
And I actually sat with her in court. I sat with her during trials. I helped review opinions that she asked me to look at. My law clerks were encamped with her law clerks.
And I guess what I want to communicate to you in a very short period remaining is, you know, the enormous judicial integrity and commitment to finding the facts, to being open-minded, to being fair. She struggled and deliberated in making sure she had the facts, making sure she had the right law, following the law, and being the kind of judge that I think we would all be proud of.
You know, speeches are important, and it’s great the way you all have considered that so carefully. But, you know, when you enter the courtroom and you put the bench on, just as you assume the authority when you take your commitment, there’s a whole different set of influences and immense power and influence that takes over.
And when she’s been on the bench, when she’s written, when she’s argued, the way she’s conducted herself, I think we can very safely predict this is going to be an outstanding judge, with all the qualities I know that you would want. So I urge you all to support her. Thank you very much.
KLOBUCHAR: Thank you very much. Thank you for your testimony. Next we have Chuck Canterbury, is the national president of the Fraternal Order of Police, one of the nation’s largest and most prominent voices for law enforcement officers.
Mr. Canterbury has served in numerous capacities in the organization, including national vice president and national second vice president. He has 25 years of experience in law enforcement, where he worked as a police officer in Horry County, South Carolina.
Maybe you know Lindsey Graham, one of our members here. In only the best ways, I’m sure. We look very much forward to your testimony. Thank you, Mr. Canterbury. Thank you, Mr. Canterbury.
CANTERBURY: Thank you, Madam Chair, Ranking Member Sessions, Senator Hatch. It’s a pleasure to be here today to offer the support of 327,000 rank-and-file police officers, my members in the Fraternal Order of Police. It’s my pleasure to testify in support of the nomination of Judge Sonia M. Sotomayor to the Supreme Court.
You know, speaking as a law enforcement officer, I think it says a lot about the character of a young person who graduated from Yale and then accepted her first job as a poorly paid prosecutor in the district of Manhattan, yet that is exactly what Judge Sotomayor did, as my members do in every city in America.
She spent five years with that office, prosecuted many criminal cases, including a triple homicide.
And she forged an excellent working relationship with the men and women working the beat in Manhattan. She earned their respect and reputation as being tough, which in my profession is a compliment.
As an appellate judge, she has participated in over 3,000 panel decisions and authored roughly 400 opinions, handling difficult issues of constitutional law, complex procedural matters, and lawsuits involving complicated business organizations.
Some of her critics have pounced on a few of those decisions, as well as some of the comments made during speaking engagements, and have engaged in some pretty wild speculation as to what she would do as a Supreme Court justice. As a law enforcement officer, I prefer to rely on evidence and fact and not speculation to reach those conclusions.
One such area of speculation is on her feelings towards our right to bear arms as guaranteed by the Second Amendment. I want no mistake to be made: I take a back seat to no one in my reverence for the Second Amendment. In fact, if I thought that Judge Sotomayor’s presence on the court posed a threat to my Second Amendment right, I would not be supporting here her today.
The facts, as some have already pointed out, reflect a brilliant and thoughtful jurist, respectful of the law, and committed to its appropriate enforcement. Over the course of her career, she has analyzed each case on its merits. To me, that’s evidence of strong commitment to duty and to the law, two characteristics that we should expect from all of our judges.
I want to cite a few cases which I’m familiar with, because they deal with issues that every beat cop in the United States has dealt with. In the United States v. Falso, an offender indicted on 242 counts relating to child pornography sought to have evidence against him thrown out because the search warrant that was thrown out lacked probable cause. Judge Sotomayor’s ruling held that the error was committed by the district court in issuing the warrant, not the officers who executed it. The conviction was upheld.
In the United States v. Santa, she ruled that law enforcement officers executing a search of a suspect based on an arrest warrant they believed to be active and valid should not result in the suppression of evidence, even if that warrant had expired.
In the United States v. Howard, she overturned the district court’s decision to suppress evidence of drug trafficking by finding warrantless automobile searches to be constitutional.
In the United States v. Clarke, she held that the law enforcement officers did not violate the Fourth Amendment by asking to see the VIN pin under the hood of a vehicle after discovering that the VIN plate on the dashboard was missing.
All of these rulings show that Judge Sotomayor got at least as much of her legal education from her five years as a prosecutor as she did at Yale Law School. These five years, in my view, reflect the same kind of commitment to the law that I have seen in the officers that I represent.
She’s clearly demonstrated that she understands the fine line that police officers must walk and, in her rulings, reflect a working knowledge, not a theoretical knowledge, of the everyday realities of law enforcement work.
After reviewing her record, I can say that Judge Sotomayor is a jurist in whom any beat cop could have confidence. And it’s for that reason that the national executive board of the FOP voted unanimously to support her nomination, and we urge you to do so, as well. Thank you very much.
KLOBUCHAR: Thank you very much, Mr. Canterbury. Next is David Cone. David Cone is a former Major League Baseball pitcher who, over an 18-year career, played for five teams in both the American and National leagues. Mr. Cone won the American League Cy Young Award in 1994 and pitched a perfect game in 1999 as a member of the New York Yankees.
He was a member of the Major League Baseball Players Association throughout his Major League career and was an officer from 1994 through 2000. Thank you very much for being here, Mr. Cone.
CONE: Thank you, Senator Klobuchar. Senator Sessions, Senator Hatch, nice to see you again.
On behalf of all Major League players, both former and current, I greatly appreciate the opportunity to acknowledge the unique role that Judge Sonia Sotomayor played in preserving America’s pastime.
As you know, I’m not a lawyer, much less a Supreme Court scholar. I was a professional baseball player from the time I was drafted out of high school in 1981 until the time I retired in 2003. I was also a union member and an officer of the Major League Baseball Players Association.
As is well known, Major League Baseball has a long history of acrimonious labor relations. It was not until the 1970s that players first gained the right to free agency and salary arbitration. This meant that, for the first time ever, players were able to earn what they were worth and have some choice about where they played.
The next 20 years were quite difficult. There was a lockout or strike at the end of every contract. To the players, every -- every dispute seemed to center upon the owners’ desire to roll back free-agency rights the players had won.
But 1994 was the worst. The owners said that they wanted the salary cap and refused to promise that they would abide by the rules of the just-expired contract after the season ended. Believing we had no choice, the players went on strike in August of 1994. I should note that this was before Congress passed the Curt Flood Act, authored by Senators Hatch and Leahy, which made it clear that baseball’s antitrust exemption could not be used to undermine federal law.
In response, the owners canceled the remainder of the season, which meant that there would be no World Series. Discussions continued through the fall and the early winter, but were fruitless. In December of 1994, the owners unilaterally implemented a salary cap and imposed new rules and conditions on employment which would have made free agency virtually meaningless. And they announced they would start the 1995 season with so-called replacement players instead of major leaguers.
We did not think the owners were negotiating in good faith, as they were required to do under federal law. We went to the National Labor Relations Board. The board agreed with us and went to federal court to seek an injunction against the owners’ unilateral changes.
The United States district judge who drew the case was Judge Sotomayor. The rest is history, or at least baseball history. Judge Sotomayor found that the owners had engaged in bad-faith bargaining. She -- she issued an injunction. Her decision stopped the owners from imposing new work rules, ended our strike, and got us all back on the field.
The words she wrote cut right to the heart of the matter, and I quote: ‘This strike is about more than just whether the players and owners will resolve their differences. It’s also about how the principles embodied by federal law operate. This strike has placed the entire concept of collective bargaining on trial. Issuing an injunction by opening day is important to ensure that the symbolic value of that day is not tainted by an unfair labor practice and the NLRB’s inability to take effective steps against its perpetuation.’
Judge Sotomayor grasped not only the complexity of the case but its importance to our sport. Her decision was upheld by a unanimous Court of Appeals panel comprised of judges appointed by different presidents from different parties with different juridical philosophies.
On the day he announced her nomination, President Obama observed that some have said Judge Sotomayor saved baseball. Others may think this is an overstatement, but look at it this way. A lot of people, both inside and outside of baseball, tried to settle the dispute.
Presidents, special mediators, secretaries of Labor, members of Congress all tried to help but were not successful. With one decision, Judge Sotomayor changed the entire dispute. Her ruling rescued the 1995 baseball season and forced the parties to resume real negotiations.
The negotiations were not easy but ultimately were successful, which in turn led to an improved relationship between the owners and the players. Today baseball is currently enjoying a run of more than 14 years without interruption, a record that would have been inconceivable in the 1990s.
I believe all of us who have loved the game, players, owners and fans, are in her debt. If Judge Sotomayor is confirmed, I hope the rest of the country will realize, as the players did in 1995, that it can be a good thing to have a judge or a justice on the Supreme Court who recognizes that the law cannot always be separated from the realities involved and the disputes being decided. Thank you again, and I would be glad to answer any questions you may have.
(UNKNOWN): Thank you very much, Mr. Cone. Our next witness is Kate Stitz. She is the Lafayette S. Foster professor of law at Yale Law School, where she teaches and writes in the areas of criminal law, criminal procedure and constitutional law.
Previously, Professor Stitz was an assistant U.S. attorney for the Southern District of New York, where she prosecuted white-collar and organized crime cases.
After graduating from Harvard Law School, she clerked for Judge Carl McGowan of the U.S. Court of Appeals for the District of Columbia and for Associate Justice Byron White on the Supreme Court. Thank you for being here, and we look forward to your testimony.
STITZ: I thank you, Senators, for the opportunity to comment on the nomination of Judge Sonia Sotomayor, whom I have known since she became a judge in 1992.
As you noted, before I joined the faculty at Yale Law School in 1985, I was a federal prosecutor in New York and I was also a special assistant at the Department of Justice in Washington.
While a federal prosecutor in New York, I had the pleasure of working of working with Louis Freeh.
It is my judgment that this is an exceptionally strong nomination. My judgment has nothing to do with Judge Sotomayor’s sex, ethnicity or personal story. I’m judging her on the same criteria that I used when I was asked by the Yale Daily News, some years ago, whether Samuel Alito would be a strong nomination to the Supreme Court. I answered yes then, and I answer yes now.
Specifically, I am confident that Sonia Sotomayor would serve this nation with powerful intelligence, vigor, rectitude and an abiding commitment to the Constitution.
Moreover, her service as a state prosecutor and as district judge will make her unique on the court to which she will ascend.
My views on her are informed by many sources. First, I have been unusually involved, at least for a professor, with members of the bar and bench within the Second Circuit. Among these lawyers and judges who know her best, she is held in the highest repute across the board. My views are also based on my many conversations with her.
Among the most telling are those in which she has described the attributes she is looking for in prospective law clerks. Through these discussions, over more than 15 years, I believe I’ve gained insight into her view of the role of a judge.
And the bottom line is this: What she wants in her law clerks are the qualities we all want in a judge.
She wants to make sure, first, that they are serious about the law, not about politics or professional opportunities after the clerkship. And they must be serious about all areas of the law. For Judge Sotomayor, there are no favorite areas -- which brings me to a third quality she wants in her clerks.
The prospective clerk must be willing to work his or her fingers to the bone, if necessary, in order to ensure that the opinions Judge Sotomayor writes and those she joins do not miss a relevant precedent and do not get a fact wrong.
And there’s an overriding fourth quality that the judge considers critical. Is the prospective clerk willing to take criticism, work harder, and, where appropriate, rethink her initial assessment, or his initial assessment of the issues?
Over the years, the judge’s former clerks have told me, time and again, that they greatly appreciate her devoted commitment to the law, as a result of which they were held to higher standards and learned more than in any other time in their lives.
Her conception of the role of a judge is borne out by her judicial opinions that I have read in the area of criminal law and procedure.
On criminal procedure, let me just note that the usual categories of left and right do not easily apply. I would say that her decisions, on the whole, reflect more pragmatism and less formalism than those of, say, Justice Souter. Sometimes this cuts for the government; sometimes it cuts against it.
I want to focus, in particular, on one substantive criminal law case: United States v. George, decided in 2004. Judge Sotomayor’s unanimous 16-page opinion in that case concerns the meaning of the mens reia term ‘willfully’ in a federal statute that makes it a crime to ‘willfully falsify a passport application.’
Her opinion makes clear that the role of the courts is not to determine what level of mens reia they think should apply but what Congress intended when it wrote the word ‘willfully.’
The Iomega then embarks on an heroic effort to figure out what Congress meant in this particular statute. The opinion is so clarifying and insightful that my coauthors and I decided to include a long excerpt from it in our forthcoming federal criminal law casebook.
But the significance of the case isn’t only that it’s an excellent opinion. It also resulted from the willingness of Judge Sotomayor and her two colleagues to reconsider their initial decision when additional arguments were brought to their attention, even though this meant that a different party would prevail.
Their aim was neither to affirm the conviction nor to reverse the conviction but to find the best resolution of the complex and conflicting precedents on this mens reia issue.
In conclusion, I submit that Judge Sotomayor’s opinion in the George case reveals four juridical qualities that she clearly possesses. First she cared deeply about the issue at hand. No matter how minor or word-parsing it may seem even to lawyers.
Second, she was willing to reassess her initial judgment and dig deeper.
Third, her legal analysis was exceptionally clear and astute.
And, fourth, she had no agenda other than trying to get the law right. And in a society committed to the rule of law, trying to get the law right is what it means to be fair and impartial. This is a great judge. I urge you to vote in favor of her confirmation. Thank you, Senators.
KLOBUCHAR: Thank you very much. We next have Dr. Charmaine Yoest, who is the president and CEO of Americans United for Life, the first national pro-life organization in the nation whose legal strategists have been involved in every pro-life case before the United States Supreme Court since Roe v. Wade.
Dr. Yoest began her career in the White House during the Reagan administration. She has also worked as the project director of the Family, Gender and Tenure Project at the University of Virginia and as a vice president at the Family Research Council. Welcome, Dr. Yoest. We look forward to your testimony.
YOEST: Thank you very much, Senator Klobuchar, ranking member Sessions, and members of the committee for inviting me to testify before you today.
As you said, I’m here on behalf of Americans United for Life. And we are the nation’s oldest pro-life legal organization. Our vision at AUL is a nation where everyone is welcomed in life and protected in law. We’ve been committed to defending human life through vigorous judicial legislation -- legislative and educational efforts since 1971, and we have been involved in every abortion-related case before the United States Supreme Court, beginning with Roe v. Wade.
I’m here today because of AUL’s deep concern about the nomination of Judge Sonia Sotomayor to the United States Supreme Court. A vote to confirm Judge Sotomayor to our highest court is a vote for unrestricted abortion on demand and a move towards elevating abortion as a fundamental right, equal to our freedom of religion and freedom of speech.
A nominee’s judicial philosophy goes to the heart of his or her qualifications to serve on the United States Supreme Court. And based on Judge Sotomayor’s record of prior statements, combined with her over a decade-long service on the board of the Puerto Rican Legal Defense and Education Fund, Judge Sotomayor’s judicial philosophy makes her unqualified to serve on the Supreme Court.
When judges fail to respect their limited role under our Constitution by imposing their personal preferences regarding public policy through their decisions, our entire judicial system of equal justice under the law is corrupted. In a series of speeches, as we’ve heard chronicled here this week, Judge Sotomayor has indicated a troubling willingness to celebrate her own personal preferences and characteristics.
Several references have been made during this hearing to the judge’s 2001 ‘wise Latina’ speech. I would note that, in that very same speech, she stated that, quote, ‘Personal experiences affect the facts that judges choose to see,’ not just what they do see, but what they choose to see.
Of even greater concern, Judge Sotomayor stated in the same lecture that, ‘The aspiration to impartiality is just that: It’s an aspiration,’ end quote.
However, impartiality is not merely an aspiration. Impartiality is a discipline, and its necessity is enshrined in the judicial oath. A judge who injects personal experiences into a decision corrupts the very foundations of our judicial system.
Perhaps the clearest example of Judge Sotomayor’s problematic philosophy is her April 2009 speech in which she said, ‘Ideas have no boundaries. Ideas are what set our creative juices flowing. Ideas are ideas. And whatever their source, if it persuades you, then you’re going to adopt its reasoning.’
We see her here building a case for judicial activism, yet creativity is the approach Americans want least from a judge. A judge who approaches the bench seeking to, quote, unquote, ‘implement ideas’ is an activist judge by definition. The laboratories of democracy in our system should remain firmly lodged in the state legislatures, not preempted from the court.
These troubling speeches did not occur in isolation. Looking at the totality of the judge’s record must include her 12 years of service on the board of the Puerto Rican Legal Defense and Education Fund.
During that time, the organization filed not one but six amicus briefs in five abortion-related cases before the Supreme Court. Given her particular emphasis on personal viewpoint and jurisprudence, we believe these cases become uniquely relevant in providing insight into her judicial philosophy.
Judge Sotomayor served the fund as a member and vice president of the board of directors and also as chairperson at the education and litigation committees and has been described as an involved and ardent supporter of their various legal efforts.
What, then, does her tenure with the organization tell us about her judicial philosophy? The fund’s briefs consistently argued the position that abortion is a fundamental right, expressing hostility to any regulation of abortion, including parental notification, informed consent, and bans on partial-birth abortion.
For example, in Planned Parenthood v. Casey, the fund compared abortion to the First Amendment right to free speech and argued that any burden on the right to abortion was unconstitutional.
In Ohio v. Akron and Casey, the fund asked the court to strike down parental involvement statutes, insisting that minors should be, quote, ‘protected against parental involvement that might prevent or obstruct the exercise of their right to choose.’
In Williams v. Zbaraz, the fund argued that failure to publicly fund abortions was ‘discriminatory.’
In Webster v. Reproductive Health Services, the fund argued against -- against -- a requirement that physicians personally counsel patients. They even argued in Webster that strict scrutiny is required because of the ‘preciousness of the fundamental right to abortion,’ end quote, underscoring not just a willingness to engage in creative jurisprudence, but an ideological commitment to advancing an extremist abortion agenda.
In conclusion, I would like to end on a personal note related to the fund briefs. We’ve heard quite a bit about settled versus unsettled this week. And the one thing that we do know is that, as we’ve seen this week, this country is still very unsettled about abortion doctrine.
However, among the American people, there are some elements of abortion-related policy that absolutely do provide common ground. Preeminent among these is a core American belief in the bonds between parent and child. I have five children, and the notion -- the notion that my daughters might be taken for a surgical procedure without my knowledge is horrific.
This common-sense commitment to protect our children is overwhelmingly shared among all of those who identify themselves as pro-life and pro-choice. And yet it is precisely these kinds of common-sense policies, like parental notification, that are threatened by this nomination.
In the fund’s brief in Ohio v. Akron, they argued that, quote, ‘The court would also need to consider whether the state, through giving the parents’ confidential information, has enhanced these parents’ ability to indoctrinate, control or punish their minor daughters who choose abortion,’ end quote.
This is a viewpoint far outside the mainstream of American public opinion, and it points to another truth about the fund arguments and their worldview, which the evidence indicates Judge Sotomayor shares. While arguing to promote abortion to a fundamental right equivalent to the freedom of religion or speech, they actually wish to elevate it even further, placing it singularly alone among rights beyond the reach of the American public to regulate or even debate. Thank you very much.
KLOBUCHAR: Thank you very much. Next we have Sandy Froman. Sandy Froman is the past president of the National Rifle Association of America. Ms. Froman is also currently a member of the NRA board of directors, where she has served since 1992, and in 2007, was unanimously elected to a lifetime appointment on the NRA Council.
A graduate of Stanford University and Harvard Law School, Ms. Froman is a practicing attorney and speaks and writes regularly on the Second Amendment. Welcome to the committee. We look forward to your testimony.
FROMAN: Thank you, Madam Chair. Chairman Leahy, Ranking Member Sessions, Senator Hatch, thank you for the opportunity to appear before this committee today to comment on the nomination of Sonia Sotomayor as it relates to her views on the Second Amendment.
It’s critical that a Supreme Court justice understand and appreciate the origin and meaning of the right of the people to keep and bear arms, a right exercised and valued by almost 90 million American gun owners.
Yet Judge Sotomayor’s record on the Second Amendment and her unwillingness or inability to engage in any meaningful analysis of this enumerated right when twice given the opportunity to do so suggests either a lack of understanding of Second Amendment jurisprudence or hostility to the right.
In 2004, Judge Sotomayor and two colleagues in U.S. v. Sanchez-Villar discussed the Second Amendment claim in a one-sentence footnote, holding without any analysis that the right to possess a gun is clearly not a fundamental right. Judge Sotomayor reiterated her view earlier this year as part of a panel in Maloney v. Cuomo, holding that the Second Amendment is not a fundamental right, does not apply to the states, and that if an object is designed primarily as a weapon, that is a sufficient basis for total prohibition even in the home.
The Maloney court ignored directives and precedents from the Supreme Court in last year’s landmark case, District of Columbia v. Heller, which held that the Second Amendment guarantees to all law- abiding responsible citizens the individual right to arms, particularly for self-defense.
Although the Supreme Court in Heller warned against applying Supreme Court incorporation cases from the late 1800s without conducting a proper 14th Amendment inquiry, Judge Sotomayor’s panel in Maloney did just that. They cited the 1886 cases of Presser v. Illinois, decided under the privileges or immunities clause of the 14th Amendment, for the proposition that the Second Amendment does not limit the states, and they ignored the Supreme Court’s 2008 directive to conduct a 14th Amendment analysis under the modern doctrine of the due process clause to determine if the right is fundamental and should be incorporated.
By contrast, the 9th Circuit in Norlight v. King, when faced with the same incorporation question earlier this year, did follow the Supreme Court’s directive and correctly concluded that the Second Amendment is a fundamental right and does apply to the state through the due process clause.
Our Second Amendment rights are no less deserving of protection against states and local governments than the First, Fourth and Fifth Amendments, all of which have been incorporated. When faced with the most important question remaining after Heller, whether the right to keep and bear arms is fundamental and applies to the states, Judge Sotomayor dismissed the issue with no substantive analysis.
She and her colleagues also failed to follow Supreme Court precedent when they held that the New York statute could be upheld if the government had a rational basis for the law. They ignored that the Supreme Court in Heller rejected the rational basis test for Second Amendment claims.
By failing to conduct a proper 14th Amendment analysis, the Maloney court evaded its judicial responsibilities, offered no guidance to lower courts, and provided no assistance in framing the issue for resolution by the Supreme Court.
Whenever an appellate judge fails to provide supporting analysis for their conclusion or address serious constitutional issues presented by the case, it is legitimate to ask whether the judge reach that conclusion by application of the constitution and statutes, or based on a political or social agenda.
Judge Sotomayor’s view robs the Second Amendment of any real meaning. Under her view the City of New Orleans’ door-to-door confiscation of firearms from law-abiding, peaceable citizens in the aftermath of Hurricane Katrina was constitutional. Preventing an individual from exercising what the Heller court said was the Second Amendment’s core lawful purpose of self-defense is no less dangerous when accomplished by a state law than by a federal law.
The Second Amendment survives today by a single vote in the Supreme Court. Both its application to the states and whether there will be a meaningfully strict standard of review remain to be decided. Judge Sotomayor has already revealed her views, and they are contrary to the text, history, and meaning of the Second and 14th Amendments.
As a circuit court judge she is constrained by precedent, but as a Supreme Court justice appointed for life she would be making precedent. A supermajority of Americans believe in an individual’s personal right to arms. They deserve a justice who will interpret the Second Amendment in a fair and impartial manner, and write well-crafted opinions worthy of respect from those of us who must live by their decisions.
The president who nominated Judge Sotomayor has expressed support for the City of Chicago’s gun ban, which is being challenged in NRA v. Chicago, a case headed to the Supreme Court. Seating a justice on the Supreme Court who does not treat the Second Amendment as a fundamental right deserving of protection against cities and states could do far more damage to the right to keep and bear arms than any legislation passed by Congress. Thank you.
ACTING CHAIR: Thank you very much for your testimony, Ms. Froman. Our next witness is David Kopel. He is currently the research director of the Independence Institute in Golden, Colorado, and an associate policy analyst at the Cato Institute. He is also a contributor to the National Review Magazine. He graduated from the University of Michigan Law School. Thank you very much for being here. We look forward to your testimony.
KOPEL: Thank you. The case of Sonia Sotomayor versus the Second Amendment is not yet found in the record of Supreme Court decisions. Yet if Judge Sotomayor is confirmed to the Supreme Court, the opinions of the newest justice may soon begin to tell the story of a justice with disregard for the exercise of constitutional rights by tens of millions of Americans.
New York state is the only state in the union which completely prohibits the peaceful possession of a nunchaku, a (inaudible) ban enacted after the opening to China in the early 1970s and the growth of interest in the martial arts. In the colloquy with Senator Hatch on July 14, Judge Sotomayor said that there was a rational basis for the ban because a nunchaku could injure or kill someone.
The same point could just as accurately be made about bows and arrows, swords or guns. All of them are weapons, and all of them can be used for sporting purposes or for legitimate self-defense.
Judge Sotomayor’s approach would allow states to ban archery equipment with no more basis than to claim the obvious, that bows are weapons. Even if there were no issue of fundamental rights in this case, Judge Sotomayor’s application of the rational-basis test was shallow and insufficiently reasoned, and it was contrary to Supreme Court testament showing that the rational-basis test is supposed to involve a genuine inquiry, not a mere repetition of a few statements made by prejudiced people who impose the law.
The plaintiff in Maloney had argued that even putting aside the Second Amendment the New York prohibition violated his rights under the 14th Amendment. There was no controlling precedent on whether Mr. Maloney’s activity involved an unenumerated right protected by the 14th Amendment. Accordingly, Judge Sotomayor and her fellow Maloney panelists should have provided a -- a reasoned decision on the issue.
Yet Judge Sotomayor simply presumed, with no legal reasoning, that Mr. Maloney’s use of arms in his own home was not part of the exercise of a fundamental right.
Testifying before this committee on July 14, Judge Sotomayor provided further examples of her troubling attitude to the right to arms. She told Senator Hatch that the -- the Heller decision had authorized gun control laws which could pass the rational basis test. To the contrary, the Heller decision had explicitly rejected the weak standard of review, which Justice Breyer had argued for in his dissent.
Both Judge Sotomayor and some of her advocates have pointed to the Seventh Circuit’s decision in NRA v. Chicago as retrospectively validating her actions in Maloney. The argument is unpersuasive. Both the Maloney and the NRA courts cited 19th century precedents which had said that the 14th Amendment’s privileges or immunities clause did not make the Second Amendment enforceable against the states.
However, as the Heller decision itself had pointed out, those cases, quote, ‘did not engage in the sort of 14th Amendment inquiry required by our later cases.’ In particular, the later cases require an analysis under the separate provision of the 14th Amendment, the due process clause.
Notably, the Seventh Circuit addressed this very issue and provided a detailed argument for why the existence of modern incorporation under the due process clause would not change the result in the case at bar. In contrast, Judge Sotomayor’s per curiam opinion in Maloney did not even acknowledge the existence of the issue.
Various advocates have made the argument that, since Maloney and NRA reached the same result, and since two of the judges in NRA v. Chicago were -- were Republican appointees who are often called conservatives, then the Maloney opinion must be all right.
This argument is valid only if one presumes that conservatives and/or Republican appointees always meet the standard of strong protectiveness for constitutional rights which should be required for any Supreme Court nominee.
In the case of the NRA v. Chicago judges, that standard was plainly not met. The Seventh Circuit judges actually made the policy argument that the Second Amendment should not be incorporated because incorporation would prevent states from outlawing self-defense by people who are attacked in their own homes.
A wise judge demonstrates and builds respect for the rule of law by writing opinions which carefully examine the relevant legal issues and which provide careful written explanations for the judge’s decisions on those issues.
Judge Sotomayor’s record on arms right cases has been the opposite. Her glib and dismissive attitude toward the right is manifest in her decisions and has been further demonstrated by her testimony before this committee.
In Sonia Sotomayor’s America, the peaceful citizens who possess firearms, bows, or martial arts instruments have no rights which a state is bound to respect and those citizens are not even worthy of a serious explanation as to why. Thank you.
KLOBUCHAR: Thank you very much. And did I say your name correctly?
KLOBUCHAR: Oh, well, that was good. Thank you. Next we have Ilya Somin. And Professor Somin is an assistant professor at George Mason University School of Law. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.
He currently serves as co-editor of the Supreme Court Economic Review, one of the country’s top-rated law and economic journals. After receiving his M.A. in political science from Harvard University and his law degree from Yale Law School, Professor Somin clerked for Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. I look forward to your testimony, Mr. Somin. Thank you for being here.
SOMIN: Thank you very much. I’d like to thank the committee for the opportunity to testify, and even more importantly, for your interest in the issue of constitutional property rights that I will be speaking about.
For the Founding Fathers, the protection of private property was one of the most important reasons for the establishment of the Constitution in the first place.
As President Barack Obama has written, our Constitution places the ownership of private property at the very heart of our system of liberty. Unfortunately, the Supreme Court and other federal courts have often given private property rights short shrift and have denied them the sort of protection that is routinely extended to other constitutional rights, and I hope that the committee’s interest in this issue will over time help begin to change that.
In my oral testimony today, I will consider Judge Sotomayor’s most well-known property decision, Didden v. Village of Port Chester. In my written testimony, which I hope will be entered into the record, I also discuss her decision in Krimstock v. Kelly.
The important background to the Didden decision is the Supreme Court’s 2005 decision in the case of Kelo v. City of New London, which addressed the Fifth Amendment’s requirement that private property can only be taken by the government if it is for a public use.
Unfortunately, a closely divided 5-4 Supreme Court ruled in Kelo that it is permissible to take property from one private individual and give it to another solely for purposes of promoting economic development, even if there isn’t even any evidence necessarily that the development will actually occur.
This licensed numerous abuse of takings in many parts of the country. Indeed, since World War II, economic development in other similar takings have displaced hundred of thousands of people, many of them poor or ethnic minorities.
But as broad as the Kelo decision was in upholding a wide range of abusive takings, Judge Sotomayor’s decision in the Didden case went even further than Kelo in doing so.
The facts of the Didden case are as follows. In 1999, the Village of Port Chester in New York declared a redevelopment area in part of its territory where, therefore, property could be taken by eminent domain in order to promote development there. And they also appointed a person named Greg Wasser, a powerful developer, as the main developer for the area.
In (inaudible) 2003 Bart Didden and Dominic Bologna, two property owners in the area, approached the village for permission to build a CVS on their property, and they were directed by Mr. Wasser -- they were directed to Mr. Wasser, who told them that they must either pay him $800,000 or give him a 50 percent stake in their business, otherwise he threatened he would have the village condemn their property.
When they refused his demand, the property was condemned almost immediately after that.
Now, in her decision, with two other members of the 2nd Circuit, the panel that Judge Sotomayor was on upheld this condemnation in a very short, cursory summary order that included almost no analysis.
Now, it is true that they cited the Kelo decision. However, they made no mention of the fact that the Kelo decision actually stated that pretexual takings are still forbidden under the Constitution, pretexual takings being defined as takings where the official rationale for the condemnation was merely a pretext for a plan to benefit a powerful private party of some sort.
Now, there is some controversy over what counts as a pretexual taking and what doesn’t. But if anything does count as a pretexual taking, it is surely a case like Didden where essentially the property would not have been condemned but for the owner’s refusal to pay a private party $800,000.
Surely, if anything is a pretexual, it is a case where property is condemned as part of a scheme for leverage to enable a private individual to extort money from the property owner.
Now, in her oral testimony before this committee, Judge Sotomayor did say that her decision was based in part on a belief that the property owners had filed their case too late. I think the important thing to remember about this statement is that in her own decision, she actually specifically wrote that she would have ruled the same way, quote, ‘Even if the appellant’s claims were not time-barred.’ So she claimed that even regardless of when they filed their case, she would have come out the same way.
Moreover, as I discuss in my written testimony, it is actually the case that her statute of limitations holding was entirely dependent on the substantive property rights holding as well, and I can discuss that further in questions if the senators are interested.
I think the bottom line about this case is its extreme nature. If one is not willing to strike down a condemnation in a situation like this, if one is not willing to say that this isn’t a public use, it’s not clear that there are any limits whatsoever on the government’s ability to take private property for the benefit of politically powerful individuals.
And on that note, I’m happy to conclude and I thank you very much for the opportunity to testify.
KLOBUCHAR: Thank you very much for your testimony. We are now going to have each senator ask five minutes of questions, and I will start with Director Freeh. You’re the only panelist who has had the opportunity to sit with Judge Sotomayor as a fellow judge. What did you learn about her and her approach to judging that led you to endorse her?
FREEH: You know, I think all the qualities that we’ve heard in this hearing as the optimal qualities -- mainstream, fair-mindedness, prepared, integrity, knowledge and intellect, patience. Part of being a good judge is listening and making sure that the parties are all heard, and really, her, you know, her sense of commitment to getting all the facts and then applying the law.
As you said, Senator, I not only served with her, but actually was with her in court, as I mentioned in my opening statement. I what we call ‘second sat’ her in a number of her first trials, where I actually observed her entire conduct of the trial, preparation, motion practice, instruction to juries, how she treated witnesses. And I think of all the things I observed over a six-month period was really, you know, how -- how detailed she was in preparing her written opinions.
This was never a judge that had a predisposition or a pre-notion or a personal agenda, but struggled and committed a lot of time and effort to getting the facts and applying the law. And I think she did that as a brand new judge. She’s done it for 17 years, and I think we can be assured she will do it as a justice.
KLOBUCHAR: As someone who was appointed by President H.W. Bush, do you have any reservations about her ability to be a Supreme Court justice without activism or an ideological agenda? (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 6 of Thursday’s testimony is now available here.
Part 8, the final part, of Thursday’s testimony is now available 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.