Opinion: Sotomayor hearings: The complete transcript -- Day 4, Part 8 of 8 (finally)


This article was originally on a blog post platform and may be missing photos, graphics or links. See About archive blog posts.

(UPDATE: Well now our good friend Thomas De Senso, the first one to think of this, has completed his word-count analysis of the Sotomayor testimony, and shown that those senators who said they were so eager to hear what she had to say were actually a whole lot more eager to hear what they themselves had to say. Check this out.

(More importantly, check out diligent Thomas’ stunning conclusions here: Just on the fourth and final day of testimony -- as laboriously transcribed in this space -- the senators allowed other witnesses to collectively speak more than 5,000 words more on that one day than they allowed Judge Sotomayor to utter during her entire time on the stand. Talk about yada-yada!)


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. Wednesday in five. And today in eight. The links to all those pieces are at the end of this item.

Keep checking back here for updates. No, actually, you can stop that now. This Part 8 transcript contains the blessed words: ‘This hearing is adjourned.’


But you can check back for other stuff anytime! Thanks for joining the live-blog and reading these texts (even if you skipped a few sentences here and there).

— Andrew Malcolm

The Ticket goes inside politics several times a day. Click here for Twitter alerts. Or follow us @latimestot

Continuation of testimony before Senate Judiciary Committee:

ACTING CHAIR AMY 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?

LOUIS FREEH: I’m totally confident that this would be an outstanding judge. Whether it was President Obama or someone else, as you mentioned, Judge Sotomayor was first appointed by George Bush -- the first George Bush. I was also. You know, I think she has all....

...the mainstream, moderate, restrained adherence to the law qualities that we want, and I think we’re going to be very proud of her.


KLOBUCHAR: Thank you. Mr. Canterbury, you spent more than 25 years as an active-duty police officer in South Carolina. I know what a difficult job you had. From my previous job, I’ve been able to see it first-hand. Are you confident if confirmed, Judge Sotomayor has the background and judicial record to be a justice who will be mindful of the need for law enforcement to protect our nation and have a pragmatic view of law enforcement issues?

CANTERBURY: We’re very confident of that, based on the over 450 criminal cases that we reviewed. We felt that her judgment was fair, tough and balanced throughout all of the cases that we reviewed.
And, looking at the totality of her career, we feel very comfortable that she’ll make a fine judge.

KLOBUCHAR: Thank you very much. Just as I said, Mr. Freeh was the only one on the panel that served with Judge Sotomayor. Mr. Cone, you are the only one on the panel that has pitched a perfect game, as far as I know. (LAUGHTER) Did you believe her to be fair when she ended the baseball strike?

I have to tell you that I thought your testimony -- people have, for, now, four days now, talked about each specific case and questioned a lot on different cases, and were very thorough in their questioning and their understanding, but I thought you so -- so succinctly described the effect that her ruling had on many, many people across the country.

And what do you think that this decision says, a little more broadly, about her approach to law, in general, and the impact of her judicial philosophy on the lives of individual Americans?

CONE: Well, thank you, Senator. You know, from my perspective, as I said in my statement, a lot of people tried to end that dispute, including President Clinton -- we were called to the White House -- special mediators, members of Congress.


I spent weeks on end, here in Washington, lobbying Congress on trying to get -- or a partial repeal of the antitrust exemption, which did happen. And Sen. Hatch and Sen. Leahy certainly sponsored that bill, the Curt Flood Act, which I think had an enormous impact as well.

But Judge Sotomayor is the one who made the tough, courageous call that put the baseball players back on the field. And, you know, from my perspective as a union member, we felt that we were in trouble, that the game was in trouble. It was to the point of almost being irreparably damaged. And she made the courageous decision to put the game back on the field and get the two parties back to the bargaining table and negotiate it in good faith.

KLOBUCHAR: Thank you very much. Sen. Sessions?

SESSIONS: Thank you, Madam Chairman. It’s good to be with you, and we’re glad you’re on this committee.

KLOBUCHAR: Thank you.

SESSIONS: Mr. Cone, I was reading a story about statistical stuff the other day. It came to me that, you know, you throw a coin, it can land five times in a row on heads, and -- and so I wonder about that, a little bit, in our effort to have racial harmony on test-taking. Because sometimes it’s just statistically so, which makes me think there’s the American League could have won, what, 12 out of the last 13 All-Star games.

CONE: It makes you wonder, yes.

SESSIONS: Two or three is about all they’re worth, right? No, it is -- thank you for your testimony, and we’ve enjoyed it. Judge Freeh, nice to see you. I value your testimony, always do, and I appreciate it very much.

I would note, and I think you would agree with me, but President Bush -- former President Bush -- former, former President Bush nominated Judge Sotomayor as Sen. Moynihan’s pick.


In other words, they had a little deal that President Bush would appoint three judges, I think, and Sen. Moynihan would get to pick one. And he nominated -- the recommendation of Sen. Moynihan. Is that the way you remember it?

FREEH: I think that’s correct. But I also think he’s supporting this nomination now.

SESSIONS: OK. Good comment. You did good. (LAUGHTER) Madam -- Ms. Stith, thank you for you very insightful comments. I appreciated that very much and it’s valuable to us. Dr. Yoest, I was thinking about this organization Legal -- Puerto Rican Legal Defense Fund, PRLDF -- and do board members of your organization know what lawsuits you’re -- you’re pursuing and generally what the issues are? Push your button.

YOEST: I was asked that question actually right after Judge Sotomayor was nominated, and it was the day before my board came to town for one of our annual meetings. And as I listened to the discussion of her relationship with the fund as a board member I have found the connection between her association with the cases and her description to really strain credulity.

The fact of the matter is to -- you don’t have to have read an individual case, reviewed a particular point as a board member to be intimately associated with it. The point of being a board member for all of us who’ve dedicated our lives to the nonprofit realm is to have oversight and to have accountability and responsibility for the organization. And so I think it’s -- I think it’s...(CROSSTALK)

SESSIONS: Well, I think that probably most boards should operate that way at least. Ms. Froman, is it correct to say that Judge Sotomayor’s opinion in Maloney, which said the 2nd Amendment does not apply to this case, if it is not overruled and if it is followed by the United States Supreme Court, then basically the 2nd Amendment rights are eviscerated with regard to cities and states that can eliminate firearms?

FROMAN: That’s correct, Senator. The problem is the Heller case did not have to deal with the incorporation issue because it took place in Washington, D.C., which is a federal enclave and federal law applies directly. But if the 2nd -- if the 2nd Circuit decision or the 7th Circuit decision remains law is approved by the Supreme Court, goes up to the Supreme Court and is affirmed, then, yes, cities and states can ban guns.


SESSIONS: Did it worry you that the judge has already ruled on the case one way and it was a 5-4 case before now could be deciding -- being deciding vote on how that might turn out?

FROMAN: It’s of great concern to me, Senator, and that’s why I’m here today to testify. And it’s of particular concern to be today because she did not give any reason. She did not explain what the basis was for her holding.

It’s kind of like when I was in math class it wasn’t enough to get the right answer. You had to show your work so the professor knew that you actually worked the problem and you didn’t cheat. So you know without any explanation of how she reached her conclusion we can’t tell whether that was a legitimate application of the Constitution and the statute...

SESSIONS: I know your organization officially I see today they said they want to see how the hearings went and what the nominee said. After that what has -- has the National Rifle Association now made an announcement today? And what is it?

FROMAN: Well I -- I of course have been here today, and I’m not here to speak on behalf of the NRA. I’m here to speak on my own behalf, and of course on behalf of other American gun owners. The NRA is the oldest and largest civil rights organization in the history of this country. They are dedicated to preserving and protecting the 2nd Amendment, and I think they have been out every day talking about the concerns that the NRA has over...(CROSSTALK)

SESSIONS: Well, are you aware that I was just given a document here that said that ‘therefore the National Rifle Association opposes the confirmation of Judge Sotomayor.’ Were you aware that that had happened?


FROMAN: I was told about that while I was here, Senator. Yes, and so I’m -- I’m sure that they have given a full explanation of that position and I’m glad to see that.

SESSIONS: Mr. Somin, thank you for your testimony. Thank you, Mr. Kopel, for yours. And I’m going to -- I frankly feel now obligated to look more closely at the Didden case. You raised most serious concerns and I realize, in fact I guess I was thinking this is worse than I thought, after hearing your testimony. I do think that it does impact property rights of great importance, and thank you for sharing that. If you want a brief comment, my time is...

SOMIN: Yes, thank you, Senator. I agree with you. It raises very important concerns and that these sorts of takings affect thousands of people around the country, particularly to poor and minorities, as the NAACP actually pointed out in their amicus brief in the Kelo case, where they indicated that the poor and politically vulnerable and ethnic minorities tend to be targeted for these sorts of condemnations.

SESSIONS: Thank you.

KLOBUCHAR: Thank you very much. Sen. Kyl?

KYL: Thank you, Madam Chairman. First of all, let me acknowledge those on the panel who I know, but thank all of you for being here. Louie Freeh, it’s great to see you again. I respect your opinions greatly, I want you to know that. I also respected the way David Cone played baseball very, very much, and I used to root for you, as a matter of a fact. I didn’t say that as an Arizona Diamondbacks fan, but I had another team in the other league.

(UNKNOWN): Did you -- (inaudible) Senator (inaudible) did you (inaudible) -- was his perfect game the last one when you did it?

CONE: No. His was done back in the ‘60s, but there’s only I think 17 perfect games in the history of the game. I’m lucky enough to be one of them.


KYL: And of course, Dr. Yoest. And Sandy Froman is a person with whom I have consulted over many, many years, during -- long before she was the national president of the NRA, but also on legal matters. And I appreciate her because of her distinguished law career, the judgment that she gives on this.
I wish I could ask all of you a question, but let me just ask a couple here.

First of all, Sandy, the question that Sen. Sessions asked I think gets right to the heart of the matter, and I wonder if you could just put a little bit of a legal spin to it. The question is: What would it mean to the gun owners of America if Judge Sotomayor’s opinion were to be the controlling law in this country from now on?

She acknowledged under my questioning that it would be more difficult -- I don’t have her exact quotation here -- but it would be more difficult for gun owners to challenge the regulations of states or cities, but it was unclear exactly how much more. Could you describe the test that would be used in such a situation? And in your opinion, how much more difficult it would be for gun owners to sustain their rights as against states and localities?

FROMAN: Yes, thank you, Sen. Kyl. Well, I believe if I heard you questioning one of the panels earlier, you raised that issue yourself, which is she said the rational basis test would be sufficient to sustain any gun ban that the government wanted to impose, whether it was a city or a state. And the rational basis test is the lowest threshold that the government has to meet to sustain a ban. They can articulate any reason, pretty much, and it will be sufficient to get past that view.

Now, the Supreme Court in Heller made it clear that the rational basis test is not allowed when you’re interpreting an enumerated right like the 2nd Amendment. So -- but she ignored that in the Maloney case and talked about rational basis, anyway.

So that is of great concern to me, and I think to the almost 90 million American gun owners, that, yes, it’s fine to say in Heller that we have a right that’s protected against infringement by the federal government, but that doesn’t mean -- the Heller case doesn’t mean that cities and states can’t ban guns, can’t issue whatever regulations they want, as long as they can articulate what will meet this rational basis test. It’s a very, very low threshold.

And as a matter of fact, that’s why the District of Columbia had their gun ban. That’s why the city of Chicago basically has a gun ban that prevents people from having firearms, even in their home for self-defense.


So that is what we’re concerned about as gun owners in America.

KYL: Thank you very much. Dr. Yoest, in the questioning by Sen. Coburn of the nominee, he asked about advances in technology. And as I recall Judge Sotomayor’s testimony, she did not want to acknowledge the impact of advances in technology as it relates to the Supreme Court’s evaluation of restrictions on abortion.

Do you believe that advances in technology are important to the viability trimester framework that the court articulated in Roe, and why?

YOEST: Well, I would reference back to the confirmation hearings of the chief justice in which he went through one of the -- one of the elements that we look at when we reconsider factual -- how things relate to a case, and there has definitely been tremendous advances on the scientific realm as it relates to human life.

So I think it’s important to see her, whether or not she’s willing to consider that kind of thing.

And it also goes to Americans United for Life works very focused on pro-life legislation at the state level, and what part of the challenge that we face is this question of how much the American people are going to be allowed to interact with their duly elected representatives at the state level in restricting abortion in a common-sense way that they’d like to see.

KYL: Thank you. Just to be clear, I have recalled her testimony slightly incorrect. She actually didn’t say or wouldn’t say how she viewed it. She said it would depend upon the case that came before her. So I don’t want to mischaracterize her testimony. But your point is that it would be very important for a court in evaluating a restriction imposed by a state.


YOEST: Yes, sir.

KYL: OK. Thank you. Again, I wish I had more time to -- but we have, I think, one or two panels left here, so we should probably move on.

KLOBUCHAR: Senator, we have two panels left.

KYL: Yes. But we thank you very much. This is an important event in our country’s history. You’ve contributed to it. And we thank you, all of you for it.

SESSIONS: Thank you, Mr. Canterbury. Appreciate FOPs.

KLOBUCHAR: Yes, I wanted to thank all of you. And you just did a marvelous job in stating your opinions. I think it was helpful for everyone.

And thank you -- thank you very much. Have a very good afternoon. It was one of our shortest panels. You’re lucky. You can go home and have dinner. We’re going to take a five-minute break, and then we will have the next panel join us. Thank you very much.


ACTING CHAIR: OK. We’re going to get started with our next panel. If you could stand to be sworn in. 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?

ROMERO: Yes, I do.

ACTING CHAIR: We’re joined here by Sen. Sessions. I know Sen. Kyl may be joining us and has been with us today, and whoever else stops by. But we want to thank you for coming. We have had a good afternoon, and what I’m going to do is introduce each of you individually and then you will give your -- your five minutes of testimony. And I know one of our witnesses is a little late so we’re going to start here with you, Ms. Romero.


Ramona Romero is the current national president of the Hispanic National Bar Association and the corporate council for logistics and energy at DuPont. She is also a co-founder and former board member of the Dominican-American National Roundtable. She is a graduate of Harvard Law School.

Ms. Romero, we’re honored to have you here. Thank you. We look forward to your testimony. Well, you can give your testimony because our other witness got a little delayed coming over from the House. So thank you.

ROMERO: Good afternoon. As Madam Chair said, my name is Ramona Romero and I am the national president of the Hispanic National Bar Association, which is known as the HMBA. We’re grateful to Chairman Leahy, to you, Sen. Sessions, and to all of the members of the committee for affording the HMBA the opportunity and honor of testifying at this hearing.

This is the fifth time that we have appeared before this committee in support of the confirmation of a Supreme Court justice. We take great pleasure in endorsing Judge Sotomayor, our support of this first and foremost on the merit of her stellar credentials.

The HMBA was founded in 1972. One of its primary goals is to promote equal justice for all Americans by advancing the participation of Hispanics in the legal profession. It is a nonprofit, voluntary bar association. We have 37 affiliates in 22 states. The HNBA is nonpartisan. And it does not represent a particular ideology.

Today, I am accompanied by nine former HNBA national presidents and vice president-elect. Like many Americans, we were proud when President Obama announced the nomination of Judge Sotomayor. As many members of this committee know, for decades, the HNBA has worked to promote a fair, independent, and, yes, diverse judiciary, one that reflects the rich mosaic of the American people.


There are over 45 million Hispanics in the United States. We represent over 15% of the population. We are the largest, fastest-growing, and youngest segment of the population. Yet Hispanics are underrepresented among lawyers and judges.

The appointment of the first Hispanic to the Supreme Court is an important, important symbolic milestone for our country, just like Justice Marshall was with respect to African Americans and Justice O’Connor was with respect to women.

The HNBA often reviews the qualifications of judicial candidates regardless of background or politics. We consider a number of factors -- exceptional professional competence, intellect, character, integrity, temperament, commitment to equal justice, and service the American people and also to Hispanics, the community we serve. Judge Sotomayor more, more than satisfies all of these criteria.

Before her nomination, we were already familiar with Judge Sotomayor’s impressive background. We had endorsed her for both of her prior judicial appointments. In 2005, the HNBA also named the judge on a bipartisan short list of eight potential Supreme Court nominees prepared by a Supreme Court committee after substantial due diligence.

The HNBA Supreme Court Committee again performed due diligence on her record after this nomination.

As a result, we’re confident that Judge Sotomayor is extraordinarily well qualified to serve as a justice of the Supreme Court.


Some have suggested that this confirms the judge would render decisions based on her personal bias. They could not be more wrong. Her extensive judicial record shows that her background and her experiences will not detract from her ability to adhere to the rule of law.

On the contrary, they are a positive. Her story resonates with all Americans. She is proof that in our country, in our country, there is no limit, even for those of us from the most humble of backgrounds. Her confirmation will mark another key step in our journey as one nation indivisible. We are grateful to President Obama for making a wise decision in nominating Judge Sotomayor. Our thanks to all Americans for their interest in one of our country’s shining stars. The HNBA thanks this committee and urges the Senate to confirm Judge Sotomayor. Thank you for listening.

(UNKNOWN): Thank you very much, Ms. Romero. And also, welcome to all the many past presidents that are here -- that’s quite a number -- as well as vice presidents. We’ve now been joined by the Honorable Nydia Velazquez, who is the congresswoman here. And I know she is incredibly busy and has joined us in Sen. Sessions and I both agreed that you wouldn’t have to stay for questions.

She is currently serving her ninth term as representative for New York’s 12th Congressional District. She was the first Puerto Rican woman elected to the U.S. House of Representatives and currently serves as the Chairwoman of the Congressional Hispanic Caucus, Chair of the House Small Business Committee, and a senior member of the Financial Services Committee. And because you missed the swearing in, we will do that now.

This is the Senate Judiciary Committee. So welcome. Could you raise your right hand? Do you affirm that the testimony that you are about to give before the committee is the truth, the whole truth, and nothing but the truth, so help you God?


(UNKNOWN): Thank you. You have five minutes, congresswoman. And we’re honored to have you here. Thank you.


VELAZQUEZ: Thank you. Madam Chairman, ranking members, and the members of the committee, I have known Sonia Sotomayor for over 20 years. In fact, when I was first elected to Congress in 1993, I asked her to administer my oath of office.

I can tell you personally that she is a grounded and professional individual. And over the last 3 1/2 days, all of us have been able to see her considerable legal ability impressively displayed.

Hispanics everywhere are proud that such a distinguished legal talent hails from our community. We have all been energized by her nomination. But of course, that is not the reason why she should be confirmed. The case for Judge Sotomayor’s confirmation is built on her vast experience, keen intellect, and tremendous qualifications.

It is not that Judge Sotomayor does not have a compelling life history. She does. As so many have already pointed out, hers is a uniquely American story, one that begins in the Bronx projects and ultimately reaches the highest echelons of our legal system.

This background instilled within her the belief that hard work is rewarded and the knowledge that with the right combination of talent and effort, anything is possible in America. These core values propel Sonia Sotomayor to remarkable heights. As her career progressed, she managed to reach nearly every level of the legal system. With each new step, she excelled, not only as a prosecutor and a litigator, but also as an appellate judge.

And yet throughout that process of achievement, she never once lost touch with her roots or her Bronx neighborhood. Instead, she augmented her vast legal experience with common-sense understanding of working-class America. That appreciation will add a valuable perspective to the Supreme Court.
Make no mistake. The stakes are high for Hispanic Americans. The Supreme Court will rule on many matters that are critical to our community, from housing policy to voting rights. These are delicate issues. With many of these matters passion runs deep on both sides. Resolving them fairly will require objectivity, impartiality, and an unwavering commitment to the rule of law.


Judge Sotomayor’s record demonstrates this quality. She has the reputation as a nonideological jurist. Someone who chooses not to spar with those who think differently, but to instead find common ground.

When working with Republican appointees, colleagues, Sotomayor’s record will show that 95 percent of the time she managed to forge consensus. She was able to do this because she commands a sophisticated grasp of legal argument and have a keen awareness of the law’s affect on every American.

When the Congressional Hispanic Caucus reviewed, it brought range of qualified Supreme candidates these were the traits we were looking for. We were looking for individuals who upheld constitutional value, exhibited a record of integrity, and had a profound, profound respect for our Constitution. It is our overwhelming belief that Judge Sotomayor meets these criteria. That is why we enthusiastically and unanimously endorse her nomination.

Senators, the decision before the committee today is one of your greatest responsibilities. I know this is something none of you on either side of the aisle take lightly. But I believe Judge Sotomayor’s records of judicial integrity, impartiality, and as she puts it, fidelity to the law, is one we can all admire, regardless of party or ideology.

If confirmed, Judge Sotomayor’s service on the court will bring great pride on the Hispanic community. That goes without saying. But more importantly, it will add another objective, disciplined legal talent to that of the body.

Thank you again for the opportunity to testify. I look forward to answering any question. Either you can send it to my office, but we are going right now, and I really, really appreciate the opportunity you have given me on behalf of the Congressional Hispanic Caucus.


(UNKNOWN): Thank you so much, Congresswoman Vasquez, and that was an eloquent and personal statement. It means a lot to us, and you’ve contributed much to the hearing.

VASQUEZ: Thank you. I know her well. I know her heart, her soul, her intellect, but most importantly her temperament and integrity. Thank you.

(UNKNOWN): Thank you.

ACTING CHAIR: And thank you so much, Congresswoman Vasquez. We know you have to vote and there’s many things going on over in the House. So we appreciate and understand that. Thank you very much.

Next we have Theodore M. Shaw. Mr. Shaw is a professor at Columbia Law School, and former director council and president of the NAACP Legal Defense Fund. He began his legal career in the Civil Rights Division of the United States Department of Justice. He’s a graduate of Wesleyan University and the Columbia University School of Law. Thank you very much, Mr. Shaw. We look forward to your testimony.

SHAW: Thank you, Madam Chair. Thank you, Sen. Sessions, and in his absence, of course, Chairman Leahy. I have known Sonia Sotomayor for over four years. We first met in 1968 as freshmen at Cardinal Spellman High School in the Bronx. We were among a modest number of black and Latino students. Perhaps 10 percent of that school’s population in what was one of the most academically challenging high schools in New York City.

It was a time of great change, great challenge. 1968 was a year that Dr. King was assassinated and also Robert Kennedy, the year of the Chicago Democratic National Convention. And there was much unrest.
Many of the minority students at Spellman, including Sonia and I, came from the public housing projects of Harlem or the Bronx, or the tenement houses that surrounded them. We were shaped by these extraordinary times and by the communities in which we came for better or worse.


During that time the light of opportunity began to shine into corners of society that were long neglected for reasons of race and poverty. Many of us were beneficiaries of what has come to be known as affirmative action. That is the conscious effort to open opportunities to individuals and groups that had been historically discriminated against and excluded from mainstream America.

Some people will immediately seize upon that description to talk about ‘unqualified’ individual. Affirmative action properly structured and implemented lifts qualified individuals from obscurity rooted in unearned inequality. In spite of her brilliance there was a time when someone like Judge Sotomayor would’ve been routinely left out of the mainstream opportunity we have come to associate with somebody of her capabilities and accomplishments.

Sonia was at the top of our class at Cardinal Spellman High School. Everyone, white, black, Latino, Asian ranked behind her. She was studious, independent minded, mature beyond her years, thoughtful. She wasn’t easily influenced by what was going on around her. She walked her own path.

To be sure Sonia was comfortable in her own skin and proud of her community and her heritage. She did not run from who or what she was and is. Still Sonia was not one to be easily swayed by peer pressure, fad, or the politics of others around her. She approached any issue from the standpoint of fierce intellectual curiosity and integrity. In fact she was an intellectual powerhouse. Sonia was a leader among students at Cardinal Spellman High School. She set the pace at which others wanted to run.

Sonia did not live a life of privilege. She lost her father at a very young age. She had been diagnosed with diabetes even before she came to high school. It was not something I remember her talking about. She simply carried herself with an air of dignity, seriousness, of purpose, and a sense that she was going somewhere.

In my four years of high school I never saw Sonia interact with anyone in a disrespectful or pretentious, antagonistic manner. Her temperament was, well even then judicious. In short, although I never told her then, and although she did not know it, I envied her intellectual capacity, her discipline, her unquestionable integrity. I admired her.


After graduating from the -- from Cardinal Spellman at the top of our class and as valedictorian she was off to Princeton and somewhere further down in the rankings I was off to Wesleyan. I did not stay in touch with her over many of the ensuing years, but we -- we did meet up again some years later. I followed her as one does a star from one’s high school orbit.

Eventually of course she went onto Yale Law School after Princeton. She excelled in everything she did. Her qualification for the Supreme Court would ordinarily be a no-brainer, but for the politics of judicial nominations. I have faith that the Senate and this committee will not let those politics get in the way.

My career has been as a civil rights lawyer. I have been in the midst of ideological warfare on contentious issues. I have been unabashed about my points of view. I’m conscious of the fact that as I testify about Sonia there may be some who project my thoughts and beliefs onto her. Some have already tried to label her as an activist outside of the political mainstream.

To be sure I consider those who work for racial justice and other civil rights to be a vital part of mainstream America. But Sonia’s life has not been lived on the battlefield of ideology or partisanship where many of us who are labeled or who label ourselves as liberal or conservative have locked horns. Indeed her record defies a simplistic label.

She began her legal career as a prosecutor, not ordinarily a job thought of as the bastion of liberal activism. Her service on the Board of the Puerto Rican Legal Defense Fund both speaks to the strength of that organization and the range of her interests from prosecution to civil rights. Her service was commendable.

In fact this range of experience and commitment places Judge Sotomayor in a mainstream of middle America for surely Americans are both interested in the prosecution and punishment of those who engage in criminal activities as well as the protection of civil rights and the elimination of invidious discrimination.


I have much more to say, but it’s in my written testimony and I see my time is expiring. I would like to refer you to my comments on this whole notion of experience and what that brings to the bench.

But to conclude I want to say that she’s served our nation for 17 years as a federal district court judge with -- and then as an appellate judge with great distinction. Now she’s being considered for an appointment as associate justice to the United States Supreme Court.

Kind of compels me to admit that I swell with pride when I contemplate the possibility that my high school classmate may ascend to the highest court in the land. But quite aside from this petty and undeserved pride on the part of one who was merely a high school classmate, there are millions of Americans who see for the first time the possibility that someone who looks like them or who comes from a background like theirs may serve on the United States Supreme Court, someone who is supremely qualified by any measure.

It is a great honor for Judge Sotomayor that President Obama has nominated her to the United States Supreme Court. It would be even a greater honor for our nation if she were to be confirmed and were to serve. Thank you.

ACTING CHAIR: Thank you very much. Our next witness -- appreciate it, Mr. Shaw. Our next witness is Tim Jeffries. Tim Jeffries is the founder of P7 Enterprises, a management consulting practice located in Scottsdale, Ariz. Mr. Jeffries serves on the board of directors of several corporations and nonprofit organizations, including the National Organization for Victim Assistance and the Arizona Voice for Crime Victims. I don’t know if you want to add anything, Sen. Kyl.

KYL: Well, Madam Chairman thank you for that opportunity. I think you’ll see when he testifies how the basis for his knowledge and passion about the protection of victims’ rights, and I think that will speak for itself. And I’m anxious to follow-up with a question as well, but I thank you very much.


ACTING CHAIR: Thank you very much. Welcome to the committee, Mr. Jeffries. We look forward to your testimony.

JEFFRIES: Thank you, Madam Chairman, Sen. Sessions, Sen. Kyl. I appreciate the humbling invitation to provide my personal testimony in opposition to the Honorable Judge Sotomayor’s appointment to the U.S. Supreme Court. The views I express here today are my own and not the views of any organization I may reference.

As my bio shows I come from a blue-collar family. My father’s grandfather served in the Union Army during the Civil War and rode for the Pony Express. My mother’s grandparents immigrated from Portugal to America in the 1900s with no money in their pocket and no English in their vocabularies.

Similar to thousands of other simple, hard-working Americans, my involvement in the crime victims support movement was born from unimaginable tragedy. On Nov. 3rd, 1981, my beloved older brother Michael was kidnapped, beaten, tortured, and murdered by a transient gang of street criminals in Colorado Springs, Colo.

The two murderers stabbed my dear, defenseless brother 65 times and ultimately killed Michael by slashing his throat and crushing his skull with the heel of a remorseless, blood-soaked boot.

Based on federal crime statistics, 17,000 people are murdered in our country every year. On average, someone is murdered every 31 minutes. On average, every 10 weeks, more people are murdered in our country than passed on that brutal, horrible day of Sept. 11.


In fact, since Sept. 11, 115,000 people have been murdered in America. This gut-wrenching level of violence in our country exceeds the approximate population of Santa Clara, Calif., or Gresham, Ore., or Peoria, Ill., or Allentown, Pa.

Further compounding this epic national crisis, other violent crimes in our country are committed in an appalling rate. Based on the crime clock produced by the Office for Victims of Crime in the Department of Justice, someone is raped in our country every 1.9 minutes. Someone is assaulted in our country every 36.9 seconds. An instance of child abuse or neglect is reported every 34.9 seconds.

Making matters worse, this breathtaking spectrum of heinous violence in our country does not receive the consistent political action it warrants and the constant media focus it deserves. Prior to my testimony, my wife sent me a text. And she asked, ‘Where are all the senators?’ And perhaps that is a metaphor for what vexes and undermines the crime victims support movement.

The true horror and verifiable existence of evil in our country are often minimized if not trivialized with well-intentioned yet sadly misguided equivocations about the troubled lives of guilty criminals in their various personal circumstances.

Unfortunately, based on public statements, Judge Sotomayor has repeatedly offered misplaced sympathy for criminals, despite the fact that justice exists to protect the innocent and to punish the guilty. Forgiveness and mercy are one thing. Punishment and accountability are another.

In four situations, four different events that are noted in my testimony, Judge Sotomayor displayed sympathy and perhaps empathy for criminals that may be well intentioned but I feel is tragically misplaced.


At a Columbia Law School Public Service Center, she stated, ‘It is all too easy as a prosecutor to feel the pain and suffering of victims and to forget that defendants, despite whatever illegal act they’ve committed, however despicable their acts may have been, the defendants are human beings.’

In January 1995 in receiving the Hogan-Morganthau Award, Judge Sotomayor stated, ‘The end result of a legal process is to find a winner. However, for every winner, there is a loser. And the loser is himself or herself a victim,’ forgetting for the fact that when meeting justice, it’s not to find a winner; it’s to find justice.

On July 12, 1993, in a federal sentencing hearing that she provided over, over a cocaine dealer, Judge Sotomayor apologized to the cocaine dealer for having to send him to federal prison. She stated the mandatory five-year sentence was a ‘great tragedy for our country.’ She also stated she hoped the cocaine dealer ‘will appreciate that we all understand that you were a victim of the economic necessities of our society.’ And then she added, ‘But unfortunately, there are laws I must impose.’

Having viewed the autopsy photos of my massacred brother and heard the heartbreaking stories of thousands of victims and survivors of violent crimes in America, I believe Judge Sotomayor’s sympathy for criminals at the expense of the burdens carried by crime victims is unworthy of our nation’s highest court, where public safety and protection of the innocent should be paramount.

Whereas Judge Sotomayor’s biography is admirable and compelling, it is a great American story of which as an American I am proud. I am deeply troubled that she has regularly offered well-intentioned yet misguided sympathy to criminals without notable deference to the pain and suffering of victims. These are the very people who need government’s protection.

Statistics show that the most egregious crime in our country disproportionately impacts the poor, the disadvantaged, the downtrodden, the defenseless. These are the very people that the justices in our highest court must have sympathy for, must have empathy for. Madam Chairman, I appreciate your patience with my testimony that has extended beyond its time. (CROSSTALK)


(UNKNOWN): And I’d be happy to answer any questions at the appropriate time.

(UNKNOWN): That’s fine. And thank you for sharing that tragic story. It must’ve been very difficult.
Naomi Rowe is our next witness. And Naomi Rowe is a professor of law at George Mason University. Previously, she served as Associate Counsel and Special Assistant to President George W. Bush and served as a counsel to the Senate Judiciary Committee. She is a graduate of the University of Chicago Law School. That’s something we have in common. Professor Rowe clerked for Supreme Court Justice Clarence Thomas and 4th Circuit Judge J. Harvie Wilkinson. I look forward to your testimony. Thank you for being here.

ROWE: Thank you very much, Madam Chairman, Sen. Sessions, and other distinguished members of this committee. It is an honor to testify at these historic hearings, which provide -- which have provided the opportunity to have a respectful public dialogue about the important work of the Supreme Court and the judicial philosophy of an accomplished nominee.

I have submitted more detailed written testimony. And I should state at the outset that I take no position on the ultimate question of the confirmation of Judge Sotomayor. In my opening remarks, I would like to highlight some points about the judicial role.

During this hearing, Judge Sotomayor has expressed broad principles about fidelity to the law with which we can all agree. But fidelity to the law can mean very different things to different judges.

Although in her testimony she has distanced herself from some of her earlier remarks, her speeches and writings might still be helpful in understanding her view of the judicial process.

First, Judge Sotomayor has explicitly rejected the idea that there can be an objective stance in judging. She has explained that every case has a series of perspectives and thus requires an individual choice by the judge. This goes beyond recognizing the need to exercise judgment in hard cases or the idea that reasonable judges may at times disagree. If there is no objective view, one can question whether there is any law at all apart from a judge’s personal choices.


Second, there is the related issue of the role of personal experiences in judicial decision making. It would be hard to deny that judges are human and made up of their unique life journeys. Many judges recognize this and explain how they strive to remain impartial by putting aside their personal preferences. Judge Sotomayor’s position, however, has suggested that her personal background, her race, gender, and life experiences, should affect judicial decisions.

Throughout her testimony, Judge Sotomayor has reaffirmed that she decides cases by applying the law to facts and that she does not follow what is in her heart. Of course, all nominees to the Supreme Court honestly state their fidelity to the law. Nonetheless, this leaves open the question of how a judge chooses to be faithful to the law. And judges go about this task in different ways.

Following the law could mean, as formalists believe, that the judicial role and the privilege of political independence require judges to stick closely to the actual words of statutes and the Constitution. The basic idea is that by focusing on the written law, judges act as fair and impartial arbiters.

Other judges consider that they’re following the law when they interpret it to conform to what is rational or coherent or just. They believe that following the law means trying to bring about what they consider to be the best outcome all things considered. These judges may be ruled by pragmatism or personal values, such as empathy.

Even with the sincere purpose of following the law, judges use very different methods for finding what the law requires. For example, some judges are far more likely to determine that the law is ambiguous and therefore requires the judge to fill in the gaps.

If the judge finds the law indeterminate, he or she may look to outside sources, such as international law, or to personal values about what is fair or rational.


Pragmatic, flexible interpretation of the law allows significant room for individual assessments of what the law requires, as each judge will have his or her own conceptions about what is best.

If the law is really a series of perspectives, this suggests a very thin conception of law. Fidelity to law as a series of perspectives is something very different from fidelity to law as binding, written command of the legislature and constitution. If law is simply one’s own perspective, the fidelity to law is little more than fidelity to one’s own views.

The Supreme Court gets the final word with regard to constitutional interpretation. A nominee’s judicial philosophy is important because on the Supreme Court, the only real restraint is self-restraint.
Our constitutional structure does not give judges political power. It gives them the judicial power to decide particular cases through an even-handed application of the law to fairly interpret statutes and the Constitution for all that they contain, not more, not less.

In our courts, the rule of law should prevail over the rule of what the judge thinks is best.
Thank you for giving me the chance to testify today.

(UNKNOWN): Thank you very much, Ms. Rowe, for your testimony. Next, we have John McGinnis. John McGinnis is a professor of law at Northwestern University. Previously, he was a deputy assistant attorney general in the Department of Justice’s Office of Legal Policy. A graduate of Harvard Law School where he was the editor of the Harvard Law Review, something he has in common with President Obama. That’s not true?

MCGINNIS: He was president of the Harvard Law Review. I was just a...(CROSSTALK)

KLOBUCHAR: You were editor.

MCGINNIS: A humble servant.

KLOBUCHAR: Well, we can just pretend for today. Professor McGinnis also clerked on the U.S. Court of Appeals for the District of Columbia. Thank you for being here, Professor McGinnis. We look forward to your testimony.

MCGINNIS: Thank you so much, Chairman Klobuchar and Ranking Member Sessions for the opportunity to address you. At the outset I want to make clear that like my colleague I’m not taking any position on Judge Sotomayor’s nomination, although I will say she has my respect and good wishes.


What this hearing affords is one of the rare opportunities for a constitutional conversation with the American people with the correct constitutional principles can be identified. Ultimately the Constitution rests on the people’s confidence in the Constitution and their fidelity to the principles. Only once the correct constitutional principles are identified can the nation measure a nominee’s adherence to those principles and so determine whether he or she should be confirmed.

My subject, the use of international and foreign law, is an issue of substantial importance, not least because the Supreme Court has come to rely on such materials. For instance, in Lawrence vs. Texas the Supreme Court relied on the European Court of Human Rights as part of its decision to strike down a statute of one of our states. In my view such reliance distorts the meaning of our Constitution. It undermines domestic democracy and it threatens to alienate Americans from a document that is their common bond.

So what are the correct principles? I think they can be simply stated. They are that judges should avoid giving any weight to contemporary, foreign or international law unless the language of the Constitution calls for it, and the language of the Constitution generally does not.

If the Constitution, as I believe, should be interpreted according to the meaning it had at the time it was ratified, it follows directly that the use of contemporary and foreign or international law is not proper. The problem with this use in fact is that it’s contemporary, not simply the fact that it’s foreign or international because the meaning of the Constitution was fixed at the time it was ratified.

But even for one of the self-styled pragmatists about constitutional theory, the use of contemporary, foreign or international law on constitutional jurisprudence is still objectionable. Pragmatists believe the Constitution should only invalidate our laws if they have bad consequences.

But a conflict between our law and foreign law is not appropriately used to create any doubt about the beneficence of our own law. Foreign law is formulated to be good for that foreign nation, not for ours. Indeed a proposition of foreign law is really only the tip of an iceberg of some complex set of social norms that in another nation. But since the United Nations doesn’t share all those norms, importing that single legal proposition into our nation can have very bad consequences for us.


International law differs from foreign law because international law at least purports to have some kind of universality, which foreign law does not. But raw international law also lacks any democratic pedigree and can’t cast out our democratically made law.

Indeed international law has multiple democratic feedback. Totalitarian nations have participated in its fabrication. Very unrepresentative groups like law professors still shape its norm. It’s also hardly transparent. American citizens have enough trouble trying to figure out what’s going on in hearings like this one let alone in diplomatic meetings in Geneva.

As I read Judge Sotomayor’s speech on this issue, her position depends on propositions that seem to me in some tension. Judge Sotomayor stated that justices should not use foreign or international law, but they should consider the ideas they find in such materials in their decision-making.

I understand that at this hearing Judge Sotomayor disavowed that such materials have any influence on jurisprudence, and I welcome that disavow. But she left unexplained, to my satisfaction at least, however is her view in the speech that such materials can help us decide our issues.

Her praise for the use of such law in Lawrence vs. Texas, which expressly relies on that European Human Rights decision, and perhaps the most puzzling of all, her endorsement and her praise for Justice Ginsburg’s view when it’s well known that Justice Ginsburg in contrast with say Justice Scalia believes that such materials are relevant to decision-making. Indeed, Justice Ginsburg says that they’re nothing less than the basic denominators of fairness between the governors and the governed.

Foreign and international law may well contain good ideas as Justice Sotomayor suggested, but so do many other sources that have no weight, and should not I think routinely be cited as authority. To put the question in perspective, undoubtedly the Bible and the Koran have many legal ideas that many people think are good, but we’d be rightly concerned if judges used them as guidance for interpreting the Constitution or even routinely cited them. Depending on what text the judge cited and what she omitted, we might think she was biased in favor of one tradition at the expense of others.


In my view the rule of law itself ultimately is founded on the proposition that only material that is formally relevant should have weight in a judge’s decision. And a way a judge can demonstrate adherence to the rule of law in this context is extremely simple. Simply refrain from appealing to the authority of foreign or international law in her opinion. Thank you very much.

KLOBUCHAR: Thank you very much, Professor McGinnis. Last but not least we have Professor Rosenkranz. Nicholas Quinn Rosenkranz is an associate professor at Georgetown University Law Center. After graduating from Yale Law School he clerked for Judge Frank Easterbrook on the U.S. Court of Appeals for the 7th Circuit and for Justice Anthony Kennedy on the U.S. Supreme Court. He then served as an attorney advisor at the Office of Legal Council in the United States Department of Justice.

You should know, Mr. Rosenkranz, that Judge Easterbrook was my professor at law school and I know that must’ve been kind of a tough clerkship. I’m sure you had to work very hard. So we look forward -- we look forward to hearing your testimony. Thank you.

ROSENKRANZ: Madam Chair, thank you. Ranking Member Sessions, members of the committee, I thank you all for the opportunity to testify at this momentous hearing. I too have been asked to comment on the use of contemporary foreign legal materials in the interpretation of the U.S. Constitution.

I agree entirely with Professor McGinnis’ analysis. In my remarks I’ll try to explain why this sort of reliance on foreign law is in tension with fundamental notions of democratic self-governance. I should emphasize that I too take no position on the ultimate question of whether Judge Sotomayor should be confirmed, and I offer my comments with the greatest respect. But I am concerned that her recent speech on this issue may betray a misconception about how to interpret the United States Constitution.

In this room and at the Supreme Court, and in law schools and throughout the nation, we speak of our Constitution in almost metaphysical terms. In the United States we revere our Constitution, and while we should, it is the single greatest charter of government in history. But it worth remembering exactly what it is that we revere.


The Constitution is a text. It is comprised of words on parchment. A copy fits comfortably in an inside pocket, but copies don’t quite do it justice. The original is just down the street at the National Archives, and it is something to see.

It is in a sealed titanium case, filled with argon gas, and at night it’s kept in an underground vault, but during the day, anyone can go, and see it, and read it, and everyone should. The parchment’s in remarkably good condition, and the words are still clearly visible.

The most important job of a Supreme Court justice is to discern what the words on that piece of parchment mean. The job is not to instill the text with meaning; the job is not to declare what the text should mean. It is to discern, using standard tools of legal interpretation, the meaning of the words on that piece of parchment.

Now, sometimes the meaning of the text is not obvious. One might need to turn to other sources to help understand the meaning of the words. One might, for example, turn to the Federalist Papers or to early Supreme Court cases to see what other wise lawyers thought that those words meant.

What the Supreme Court has done in two recent controversial cases is to rely on contemporary foreign law in determining the meaning of the United States Constitution, and this is the practice that Judge Sotomayor seems to endorse in her recent speech.

When one is trying to figure out the meaning of the document down the street at the Archives, it is mysterious why one would need to study other legal documents written in other languages for other purposes in other political circumstances hundreds of years later and thousands of miles away.


To put the point most simply, as a general matter, it is unfathomable how the law of, say, France in 2009 could help one discern the original public meaning of the United States Constitution.

Those who would rely on such sources must be engaged in a different project. They must be trying to update the Constitution, to bring it in line with world opinion.

To put the point most starkly, this sort of reliance on contemporary foreign law must be in essence a mechanism of constitutional change. Foreign law changes all the time, and it has changed continuously since the founding. If modern foreign law is relevant to constitutional interpretation, it follows that a change in foreign law can alter the meaning of the United States Constitution. And that is why this issue is so important.

The notion of the court updating the Constitution to reflect its own evolving view of good government is troubling enough, but the notion that this evolution may be brought about by changes in foreign law violates basic premises of democratic self-governance.

When the Supreme Court declares that the Constitution evolves and it declares further that foreign law may affect its evolution, it is declaring nothing less than the power of foreign governments to change the meaning of the United States Constitution.

And even if the court purports to seek a foreign consensus, a single foreign country might tip the scales. Indeed, foreign governments might attempt this deliberately.


France, for example, has declared that one of its priorities is the abolition of capital punishment in the United States, yet surely the American people would rebel at the thought of the French parliament deciding whether to abolish the death penalty, not just in France, but thereby in America.

After all, foreign control over American law was a primary grievance of the Declaration of Independence. It, too, may be found at the National Archives, and its most resonant protest was that King George III had subjected us to a jurisdiction foreign to our Constitution.

This is exactly what is at stake here: foreign government control over the meaning of our Constitution. Any such control, even at the margin, is inconsistent with our basic founding principles of democracy and self-governance.I hope that the committee will continue to explore Judge Sotomayor’s views on this important issue. Thank you.

KLOBUCHAR: Thank you very much to all of you. And just -- just to clarify, Mr. Rosenkranz, the one case that Judge Sotomayor considered on the death penalty, she actually sustained it. She rejected a claim that it didn’t apply. And I don’t think she used foreign law at all to say that it didn’t apply. She actually sustained the death penalty. Are you aware of that case, the Heatley case?

ROSENKRANZ: Yes, I am aware of it. I’m referring primarily to the speech that she gave on this topic.

KLOBUCHAR: OK. Well, I would say that her opinion probably rules if you look at how she actually ruled on this. She didn’t say that you couldn’t have the death penalty because of French law. Thank you.
Ms. Romero, I had some questions about your testimony. You -- you talked about the fact that Ms. Sotomayor’s opinions are characterized by a diligent application of the law, reasoned judgment, and an unwavering commitment to upholding the Constitution and Supreme Court precedent. Do you want to talk to me about how you reached that conclusion?


ROMERO: We have a Supreme Court committee, as I mentioned. And the committee conducted a thorough review of her background. In addition to reviewing about 100 of her cases, we commissioned a review by a group of law professors who reviewed about 100 of her cases.

We reviewed many of her speeches and articles and also spoke to dozens of colleagues and people who know her. So we conducted a fair -- fairly extensive due diligence. In terms of -- so our conclusion is based primarily on a review of her cases, which I think is what really should prevail here.

KLOBUCHAR: You also noted in your remarks that the judge’s opinions can’t be readily associated with a particular political persuasion or judicial philosophy. And I think that may be reflected in the fact that she’s been endorsed, in our last panel, Louis Freeh, who had been appointed by George H.W. Bush and also served as the FBI director.

We had the Fraternal Order of Police, the largest police organization in the country. We had -- we’ve had the National District Attorneys Association that supports her. In fact, a review of her sentences shows that she is right in the mainstream. I questioned her yesterday about some of her white-collar sentences were actually quite lengthier than some of her colleagues’.

Do you want to talk about what you mean by that her opinions can’t be readily associated with a particular political persuasion or judicial philosophy?

ROMERO: Well, she doesn’t -- there’s no pattern that emerges of an activist judge here. It is quite apparent that her opinions are highly fact-driven and that she relies extensively on the application of the law through the facts that face her.


KLOBUCHAR: OK. Thank you. Mr. Shaw, do you want to comment a bit about what she was like in high school? You said she was judicious, and I was trying to imagine if I was judicious in high school. But you did know her from Cardinal Spelling High School, is that correct?

SHAW: Cardinal Spellman High School in the Bronx. And she -- her temperament was even-keeled, calm. She was very thoughtful, fair- minded. She treated all individuals equally. She exhibited many of the qualities that she exhibits now.

Some of the testimony I’ve heard here is delivered by people who don’t know her and, frankly, who won’t let the facts get in the way. It has nothing to do with who she is. But I understand part of what goes on at these hearings.

Her -- her career is one that has been very centrist as a judge. And I cannot tell you that she would rule in the way that I would want her to rule in every case if she were confirmed to the Supreme Court. She hasn’t done that in her career so far.

But I don’t think that’s a standard. I think that all any of us can expect and hope for and want is that she is fair, open-minded, and that she applies the law to the facts. And, clearly, her record has done that. Her speeches are not how she should be judged. It’s her 17-year record on the bench.

KLOBUCHAR: Thank you. In fact, I -- I imagine you might not have agreed with some of the decisions. I think we found out that of the discrimination claims that are brought before her, she’d rejected 81 percent of them and, of course, had found for some of them.


So I think it’s a tribute, Mr. Shaw, that you would still be here, knowing that you may not have agreed with her on every single decision that she made. Thank you very much.

SHAW: Thank you.

KLOBUCHAR: Sen. Sessions?

SESSIONS: I’ll recognize Sen. Kyl and let him have my time now, but I would just note, Sen. Kyl is a superb lawyer, senior member of this committee, involved in the leadership of the Senate. So I know that’s where he’s had -- get back over right now, because a lot of things are happening. He also has argued three cases before the U.S. Supreme Court, which very few lawyers in this country can have the honor of ever arguing one.

KYL: Thank you, Madam Chairman. Thank you, Sen. Sessions. Just to give you one idea about what it’s like to be in leadership, we’re trying to figure out right now -- and the reason I’ve been consulting my BlackBerry while listening out of both ears to your testimony -- and I thank all of you for being here -- is we’re trying to figure out if we’re going to come back here and vote at 1 a.m. tomorrow morning or we’re going to try to vote on probably three -- have three different votes here yet this evening and not come back at 1 a.m., the kinds of things senators consider all the time. Again, let me thank all of you.

First, with regard to the last two panelists, I very much appreciate your discussion of foreign law. It is a subject that I think this committee needs to pay a lot more attention to.

Judge Sotomayor has said two contradictory things, and it will be up for us to try to square which will, in fact, govern her decisions on the Supreme Court, should she be confirmed.

She said, on the one hand, on numerous occasions, that she thinks that -- that foreign law should be considered and that she agreed with Justice Ginsburg and disagreed with Thomas and Scalia.
And I think, Mr. Rosenkranz, you pointed out what that means in terms of the use of foreign law.


And yet she has said here that -- even, I think, this morning -- that she doesn’t think foreign law should be used in interpreting the Constitution or statutes. So we’re left to wonder, and I guess we’ll just have to try to figure that out.

I -- I also wanted to specifically ask Tim Jeffries a question. I know Tim Jeffries, and I know of his considerable work on behalf of victims of crime. And that’s why I think I’m fairly -- why I think you’re a good person to answer this question, Tim.

To me, there is one place where empathy does play a role in a judge’s decisions, and I can think of only this one situation, and it’s at the time of sentencing, when at least some states and the federal government now allows persons who are not parties before the court to make statements before the court at the time of sentencing.

And that is a time where, to the extent there is discretion with respect to sentencing a judge can take into account what people tell him about the victim, about the defendant, about other matters, and empathy cannot help but play a role in that.

Could you just remind us from your perspective of having worked for victims’ rights now why it is important for judges to consider the point of view of victims in this particular situation in -- in sentencing statements or in the other situations in which it’s appropriate for a victim or a victim’s advocate to make an appearance in a given case?

(UNKNOWN): Thank you, Madam Chairman, Sen. Kyl. As you know, in the U.S. Constitution there are over 20 references to defendants’ rights. There are no references to victims’ rights.


Currently under the Crime Victims Right Act, which is federal law, there is statutory protections for victims of federal crimes in which those protections provide the right to be informed, to be present, to be heard. But that is just for federal crimes. If you look at the states in our great union it is a patchwork quilt of victims’ protections and in upwards to 15 states there are no victims’ protections whatsoever.

It is challenging enough that incomprehensible crime is committed in our country. Fifty people will be murdered today. Seven hundred and sixty people will be raped today. Over 3,000 people will be assaulted. And over 4,000 children will be abused. It’s incomprehensible, and as if that is not tough enough, when people enter the justice system, which should exist to do just things, re-victimization takes place.

Judge Sotomayor is a great American story: valedictorian of her grade school, valedictorian of her high school, the Pyne Prize at Princeton, summa cum laude, Phi Beta Kappa, editor of the Yale Law Journal. She’s written over 380 opinions. She’s given over 180 speeches. Even today she said, ‘It’s important to use simple words,’ and I quote.

So I can assure everyone here that when a victim, a victim’s family is in a courtroom, above and beyond the fact that they’re looking for justice that the system should meet, they’re looking for the kindness that a just system should provide.

And whereas I continue to be very impressed with the Honorable Judge Sotomayor’s story and her record of accomplishment and all the incredible witnesses that have come to support her, I’m extremely concerned that a jurist who understands how important words are through several decades of speeches could be so cavalier as it pertains to victims’ feelings. And as I stated in my prepared remarks, forgiveness and mercy are one thing. Justice and accountability are another thing.

And so I am just hopeful. I am prayerful that if Judge Sotomayor is confirmed -- confirmed to our nation’s highest court -- that she will never lose sight of what I’m sure were some very hard days she spent as a prosecutor. And that all due respect to the troubled lives of guilty criminals, we should be focused on victims.


KYLE: Thank you. And thank you all panelists.

KLOBUCHAR: Thank you very much. Sen. Kaufman?

KAUFMAN: Yes. I just have a few questions. Ms. Romero, can you tell us what Judge Sotomayor’s confirmation would mean to your organization in your long struggle for greater diversity in the federal bench?

ROMERO: It’s not only about our organization. I think it’s about all Americans. It’s about all Americans seeing themselves reflected at the highest levels of our profession. It’s about public trust in the integrity of the judicial system. It’s about public faith of -- and public understanding about the law.

It’s not -- when I -- you know on the day that Justice Souter announced his retirement, I was in New Mexico speaking to a group of high school students, about 600 high school students primarily Hispanic in an underserved area of New Mexico -- of Albuquerque. And I told them I’m going to speak with you for about five minutes, give me five minutes, and if you want to afterwards I will answer any questions you want. I spoke to them for five minutes and they asked me questions for 40 minutes.

So I was very proud of the fact that they were enormously interested in the law. But some of the questions were a little bit more than troubling in the sense that they reflected some distrust in their interactions with the judicial system and in how the community interacts with the judicial system. So one of our missions at the Bar Association is to try to educate youngsters about you know the fact that the law really is fair and is just and that it reflects them and that it is accessible to them. It’s about that. It’s about access.

KAUFMAN: Professor Shaw, can you tell us just from your vast background just a little bit about the function of legal defense funds and how they serve society?

SHAW: Sure. I worked for almost 26 years for the NAACP Legal Defense Fund, ending up being director council and president. The Legal Defense Fund is the organization that was born out of the NAACP, which I consider to be and I think most historians would consider to be the oldest civil rights organization in this country, even though another claim has been made here today. But the Legal Defense Fund litigated Brown vs. Board of Education and many of the major civil rights cases on behalf of African Americans but also others.


PRLDF was modeled after the [NAACP] Legal Defense Fund as were many other legal defense funds, including some of the conservative legal defense funds that now exist in other institutions in other parts of the world. One of the things I would underscore because I listened with great interest with some of the things that some of the witnesses said about Judge Sotomayor’s role as a board member.

I know that as deputy director of the Legal Defense Fund and then director council we made sure that the board understood its role and the staff understood its role. The board was not responsible for the selection of cases or responsible for legal strategy. And in fact I worked very hard to make sure that those lines remain drawn. That’s not to say that the board didn’t get engaged in policy, but the staff and the lawyers and the leadership of the organization have responsibility for legal strategy and also for deciding what cases would be filed. And I think that’s pretty much the way most legal defense funds, including PRLDF, operated.

(UNKNOWN): Thank you very much. And I want to thank the entire panel for being here today.
KLOBUCHAR: Sen. Sessions?

SESSIONS: Thank you. Thank all of you. It’s another good panel. And I think it’s enriching our discussion. These all will be part of the record and is reflective of a commitment that the Senate should make, must make onto make sure this process is handled correctly. So thank you all.

I think that foreign law matters a big deal to me. Some people make out like it’s nothing to this, this is just talk, but it’s baffling to me how a person of discipline would think that foreign opinions or foreign statutes or U.N. resolutions could influence the interpretation of an American statute which may be 1970 or 1776.

And I -- I -- I think you mentioned, Mr. Rosenkranz, that Americans revere the Constitution. I remember the Judicial Conference of the 11th Circuit. Professor Van Osteen said that, if you respect the Constitution, if you truly respect it, you will enforce it as its written, whether you like it or not.

And that -- if you don’t do that, then you disrespect and you weaken it. And the next judge someday further down the line will be even more likely to weaken it further. And just because you may like the direction somebody dents the Constitution this year in this case doesn’t mean you’re going to like it in the future. And liberties then become greater at risk. Would you agree with that?



SESSIONS: Ms. Rao, you’ve discussed some of these philosophies. How do you feel about that?


SESSIONS: (inaudible) your microphone. Ms. Rao, now, I’m not a legal philosopher, and one of the little thoughts I’ve had in the back of mind, I think Judge Sotomayor would have been better served to stay away from legal philosophers (inaudible) and remembered how her mama raised her and so forth. But these legal philosophies are another thing.

But she expressed some affirmation of legal realism. Isn’t that a more cynical approach to the law in which you -- the theory somewhat to the effect that, well, it’s not realistic to be idealistic about words having definite meanings and we all know the judges do differently? Would -- is that a fairly decent summary of that and the danger of that philosophy?

RAO: I think that is one of the dangers of legal realism. I think that there are two parts of legal realism, right? There’s one -- one part of it that’s largely descriptive, which is that legal realism means that often a judge’s viewpoint is going to influence their judging. And I think that everyone recognizes that that’s a possibility. But I think many -- many people go a step beyond that to say, well, a judge’s -- you know, a judge’s individual views should shape their judging. And I think there’s a big step.

SESSIONS: So -- all right, now, so in this law review article -- have you read that? Did you read the law -- the articles she wrote? I’m not sure it’s an explicit endorsement, but it’s certainly an affirmation of -- of that philosophy in many ways in her references to it. Would you agree?

RAO: It seemed that way to me, as well. And -- and I think it’s also supported by her other statements in which she has said that there is no objective stance in judging. I think that that is all part of the same general idea.


SESSIONS: And there was no -- only perspectives? Was that one of the language? Do you remember those words?

RAO: Only -- only a series of perspectives.

SESSIONS: Well, that doesn’t mean much to me. I’m not sure I’m comfortable with a judge who thinks things are just a series of perspectives.

The -- have any of you been familiar with the French judicial philosophy that involves single decisions? I’m told it’s a technique that the French courts utilize to have -- my time has...

KLOBUCHAR: Keep going. Just speak in French from now on. (LAUGHTER)

SESSIONS: I studied it for two years, but I -- well, I -- my understanding is that the French courts frequently use very short, unsigned opinions without dissents and without discussion and that -- so it’s very difficult to understand the principle behind their approach to law.

And so I’d just wonder about that. Are you familiar? I don’t see any there. And -- thank you all for your comments and thoughts. We appreciate it very much. This is an important issue, and we value your insight.

KLOBUCHAR: Thank you very much, Sen. Sessions. And I wanted to thank all of you, as well.
And, actually, Mr. Rosenkranz, I did appreciate your testimony. I think it is a valued issue to discuss. But I -- I just wanted to make it clear, when I asked you that question about the case that, in fact, Judge Sotomayor has written or joined more than 3,000 opinions in her 17 years as a judge and she has never used foreign law to interpret the Constitution or statutes, and including the case I mentioned. And that does mean that it’s not a valid point to discuss.


ROSENKRANZ: She’s never -- she’s never used it to interpret the Constitution. I think she has to interpret the statutes.

KLOBUCHAR: The point of the -- the issue is that, when you brought up the death penalty and the French system, is that she hadn’t used foreign law. In fact, she sustained the death penalty in that case.
Thank you. And then...

SESSIONS: On that subject...

KLOBUCHAR: Go ahead, please.

SESSIONS: ... there is a national debate. Justice Ginsburg favors that. In her speech, she endorsed the Ginsburg model and criticized the Scalia model.

KLOBUCHAR: And then one last thing that I wanted to put on the record, a July 9 New York Times article entitled, ‘Sotomayor Meted Out Stiff Prison Terms, Report Indicates,’ in which it states that, ‘Most striking was the finding that across the board Judge Sotomayor was more likely to send a person to prison than her colleagues. This was true whether the offender was a drug dealer or had been convicted of a white-collar crime.’

SESSIONS: Well, on that subject, I would point out that the Washington Post study found that her criminal justice decisions were on the left side of the Democratic judges, which were on the...

KLOBUCHAR: Well, you know what, Sen. Sessions? ... We’ll put both articles in...

SESSIONS: Good deal.

KLOBUCHAR: ... in the record. (CROSSTALK)

SESSIONS: I think that one’s already in the record.

KLOBUCHAR: OK, great. And I just wanted to thank all of you. I know all of your thoughts were heartfelt and well researched. Especially thank you, Mr. Jeffries, for coming with a difficult situation. I’m so sorry about what happened to your brother.

We are going to break for five minutes. And then Sen. Kaufman is going to be taking over this next panel, our last panel. Thank you very much.


SESSIONS: I would note for the record, it’s highly unlikely that I would be a ranking member and that Sen. Kaufman would be chairing this committee. What a remarkable development that is.

KLOBUCHAR: Exactly. Just for the -- for everyone’s knowledge, Sen. Kaufman was Sen. Biden’s chief of staff for many, many years and took over his seat, and so now he is going to be chairing this committee hearing.

ROMERO: Madam Chair, if I may?

KLOBUCHAR: This is just a free-for-all. Go ahead. Ms. Romero, please comment.

ROMERO: No, I’m not commenting. I was just going to ask to ensure that the longer statement the HNBA submitted is inserted into the record.

KLOBUCHAR: Certainly. And everyone’s longer statements will be included in this record for all of the panels. So thank you very much. We will recess for five minutes, and we will return.


KAUFMAN: We’ll now call our final panel, saving the best for last, of consisting Patricia Hynes, Dean Joanne Epps, Mr. David Rivkin, and Dr. Steven Hallberg. Before we start, Michael J. Garcia was supposed to be here today but -- to be here for the hearing. But he thought it was going to be tomorrow. We all thought it was going to be tomorrow. Welcome to the Senate. You never known when things are going to happen. (inaudible) what I’d like to do is put his statement in the record.

And also, Congressman Serrano is going to try to make it. But why don’t we do first, you know, with -- as within all the prior panels, all witnesses, as you know, are limited to five minutes for their opening statements. Your full written statement will be put in the record. Senators will then have five minutes to ask questions each panel. I now like to ask the witnesses to stand and by sworn.


Do you swear the testimony you’re about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God?

(UNKNOWN): I do.

KAUFMAN: Thank you. Our first witness is Ms. Patricia Hynes. Patricia Hynes is President of the New York City Bar Association, a former chair of the American Bar Association Standing Committee on the Federal Judiciary. She’s also senior counsel of Allen & Overy, LLP. She was Assistant U.S. Attorney in the Southern District of New York and clerked for Judge Joseph Zavatt in the U.S. District Court for the Eastern District of New York. She’s a graduate of Fordham Law School. Ms. Hynes, I look forward to your testimony.

HYNES: Thank you. Thank you, Chairman Kaufman, Ranking Member Sessions, and Sen. Whitehouse. I am the president -- the current president of the Association of the Bar of the City of New York. And I appreciate the opportunity to speak to you this evening regarding the nomination of Judge Sonia Sotomayor to be the associate -- an associate justice of the U.S. Supreme Court.

I am joined this evening by Lyn Nooner, who is sitting right behind me, who chaired the subcommittee of our executive committee that conducted the evaluation of Judge Sonia Sotomayor.

As this committee is aware, the Association of the Bar of the City of New York is one of the oldest bar associations in the country and since its founding in 1870 has given priority to the evaluations of candidates for judicial office. As far back as 1874, the association has reviewed and commented on the qualifications of candidates for the U.S. Supreme Court. It is a particular honor for me to participate in this confirmation process for this particular nominee.

In May of 1987, our association adopted a policy that directs the executive committee, our governing body, to evaluate all candidates for appointment to the U.S. Supreme Court. The executive committee has developed an extensive procedure for evaluating Supreme Court nominees, including a process for conducting research, seeking views of persons with knowledge of the candidate and of our membership of more than 23,000 members of the New York Bar and other bars. We evaluate the information we receive and express a judgment on the qualification of a person nominated to the U.S. Supreme Court.


In 2007, the executive committee of the association moved to a three-tier evaluation system by including a rating of highly qualified. This is the first time the association has used the three-tier rating for a nominee to the Supreme Court.

In evaluating Judge Sotomayor’s qualifications, the association reviewed and analyzed information from a variety of sources. We reviewed more than 700 opinions written by Judge Sotomayor over her 17 years on both the Circuit Court and the District Court. We reviewed her speeches, articles, her prior confirmation testimony, comments received from members of the association and its committees, press reports, blogs, commentaries. And we conducted more than 50 interviews with judicial colleagues, former law clerks, numerous practitioners, as well as an interview with Judge Sotomayor herself.

The executive committee on evaluating the qualifications of Judge Sotomayor passed a resolution at its meeting on June 30th finding Judge Sotomayor highly qualified to be a justice of the Supreme Court. Based upon the committee’s affirmative finding that Judge Sotomayor possesses to an exceptionally high degree all of these qualifications enumerated in the association’s guidelines for evaluations of nominees to the Supreme Court.

And those guidelines are -- exceptional legal ability, extensive experience and knowledge of the law, outstanding intellectual and analytical talent, maturity of judgment, unquestionable integrity and independence, a temperament reflecting a willingness to search for a fair resolution of each case before the court, a sympathetic understanding of the court’s role under the Constitution in the protection of personal rights of individuals, and an appreciation of the meaning of the United States Constitution, including a sensitivity to the respective powers and reciprocal responsibility of Congress and the Executive Branch.

These guidelines establish a very high standard which, in our opinion, Judge Sotomayor clearly meets. Specifically, the association found that Judge Sotomayor demonstrates a formidable intellect, a diligent and careful approach to legal decision-making, exhibiting a firm respect for the doctrine of judicial restraint, separation of powers, and stare decisis, a commitment to unbiased, thoughtful administration of justice, a deep commitment to our judicial system and the counsel and litigants who appear before the court, and an abiding respect for the powers of the legislative and executive branches of our government.

We believe Judge Sotomayor will be an outstanding justice of the United States Supreme Court. And I am very grateful to this committee to give us the opportunity to express the views of the association of the bar.


KAUFMAN: Thank you, Ms. Hynes. Our next witness is Dean JoAnne A. Epps. JoAnne Epps is the dean of the Beasley School of Law at Temple University, and she’s taught at the International Criminal Tribunal for Rwanda. She is here today to speak on behalf of the National Association of Women Lawyers, where she serves as a co-chair of the Supreme Court.

Dean Epps, I attended Temple for one course. I’m sorry I didn’t graduate, but I have enjoyed Temple basketball for over 50 years. So I’m looking forward to your testimony.

EPPS: Thank you very much, Mr. Senator. Sen. Kaufman, Sen. Sessions, Sen. Whitehouse, I’m really honored to be here this evening on behalf of the National Association for Women Lawyers, whose president, Lisa Horowitz, is seated behind me as I speak. And we are here today to urge your vote in support of the confirmation of Judge Sotomayor to be an associate justice of the Supreme Court.

After careful evaluation of Judge Sotomayor’s background and qualifications, the National Association of Women Lawyers, NAWL, has concluded that Judge Sotomayor is highly qualified for this position. She has the intellectual capacity, the appropriate judicial temperament, and respect for established law and process needed to be an effective justice of the Supreme Court.

She’s mindful of a range of perspectives that appropriately should be considered in rendering judicial decisions and, if confirmed, will clearly demonstrate that highly qualified women have a rightful place at the highest levels of our profession. We therefore encourage your vote in favor of her confirmation.

Founded over 100 years ago and with thousands of members from all 50 states, NAWL is committed to supporting and advancing the interests of women lawyers and women’s legal rights. We campaigned in the 1900s for women’s voting rights and the right of women to serve on juries, and we supported most recently this year the Lilly Ledbetter Fair Pay Act.


In all of the intervening years, NAWL has been a supporter of the interests of women. As such, NAWL cares deeply about the composition of the Supreme Court and ensuring that it includes the perspectives of all Americans, especially those of women, not just because most of our members are women, but because all of our members care about issues that affect women.

NAWL’s recommendation today is based on the work of NAWL’s committee for the evaluation of Supreme Court nominees. In evaluating the qualifications of Judge Sotomayor to serve as an associate justice, special emphasis was placed on matters regarding women’s rights or that have a special impact on women.
Eighteen committee members were appointed by the president of NAWL and include law professors and a law dean, appellate practitioners and lawyers concentrating in litigation.

I co-chaired this committee, together with Trish Refo, a partner at Snell & Wilmer in Phoenix, Ariz. We divided our committee work into two categories. Like others who testified here today, we read a large selection of Judge Sotomayor’s opinions, and we interviewed more than 50 people who know her in a variety of capacities.

Those who were interviewed described Judge Sotomayor as open-minded, but respectful of precedent, which is consistent with what we found in her judicial opinions. She is courteous and respectful to those with whom she has professional interaction, including those who do not occupy positions of status or influence.

She has treated litigants, attorneys, and court personnel, and, in particular for our committee’s review, women in the court with the utmost respect and professionalism both in and out of the court room. Those who had interacted with Judge Sotomayor in other capacities, both before and after she was appointed, described her as a good colleague, a team player, and supportive of institutional goals.

Our review of Judge Sotomayor’s writing included her majority opinions, concurrences, dissents, and opinions that she wrote or joined in that were reviewed by the Supreme Court. And from that review, we have concluded that Judge Sotomayor has consistently displayed a superior intellectual capacity, a comprehensive understanding of issues with which she was presented, and a thorough and firm grasp of the legal issues that have come before her.


Looking at the clock, I’d like to move to the final point that we would like to say.

NAWL supports the confirmation of Judge Sotomayor for the important message that it conveys. NAWL does not believe that Judge Sotomayor should be confirmed solely because she is a woman or a Latina, but the fact is that Judge Sotomayor is, as ultimately we all are, a product of her experiences. And for her, those experiences include life as a woman and as a Latina.

Both perspectives will be welcome additions to this court’s deliberations. As a nation, we have come a long way, but we still have much to do. Women are nearly half of this nation, but a mere one-ninth of the Supreme Court. The disparity in representation is not trivial in effect. In the legal profession, although women have comprised 50 percent or more of graduating law school classes for more than two decades, they continue to be markedly under-represented in leadership roles in the profession.

As of last year, women were only 16 percent of equity partners in the country’s largest law firms; 99 percent of the law firms in this country reported that their highest paid lawyer was a man.

Just 23 percent of federal, district and circuit court judges were women. Just 1.9 percent of all law firm partners were women of color. And 19 percent of the nation’s law firms have not one lawyer of color.
Your confirmation of Judge Sotomayor will, therefore, send a strong message to law firms, corporations, government, and academia that we must and can eliminate the persistent barriers to the advancement of women attorneys. It will reinforce what should be a standard expectation that women of diverse ethnic backgrounds should of course occupy positions of parity with men.

As others have said this week, I long for the day when it wouldn’t even occur to anyone to mention Judge Sotomayor’s gender or ethnicity, those matters having become non-noteworthy, but that time is not yet here. With this vote, you will send a message most especially to the wonderful women and girls in your life, telling them not just that they matter, but that issues of concern to them matter.

In summary, NAWL, the National Association of Women Lawyers, found Judge Sotomayor eminently qualified for this position, but not simply because she’s a woman. She has the intellectual capacity, the appropriate judicial temperament, and respect for established law and process to be an outstanding Supreme Court justice.


She’s mindful of the human component of law and symbolizes the triumph of intelligence, hard work, and compassion. Accordingly, NAWL strongly supports her confirmation and urges you to vote in favor of her.
Thank you very much for the opportunity to be here today.

KAUFMAN: Thank you, Dean Epps. Our next witness is the honorable Jose E. Serrano. Congressman Serrano, will you please stand and be sworn?

Do you swear the testimony you’re about to give before the committee will be the truth, the whole truth, and nothing but the truth, so help you God? Thank you. Representative Jose Serrano represents the 16th Congressional District in New York and the Bronx. He’s an active member of the Congressional Hispanic Caucus and now the most senior member of the Congress of Puerto Rican descent.

Previously, Representative Serrano served in the 172nd Support Battalion of the U.S. Army Medical Corps and was a member of the New York State Assembly.
Congressman Serrano, I look forward to your testimony.

SERRANO: Thank you. And before you start the clock running, sorry I’m late. I’m chairman of the Financial Services of the Appropriations Committee. My counterpart is Sen. Durbin. And we just passed our bill for 17 amendments, a motion to recommit, and a lot of issues that had nothing to do with my bill being discussed.

KAUFMAN: No one starts a clock on a member of the Appropriations Committee prematurely.(LAUGHTER)

SERRANO: You’re well taken care of, Senator. (LAUGHTER)

KAUFMAN: Thank you.

SERRANO: Sen. Kaufman, thank you. Sen. Whitehouse, Ranking Member Sessions, thank you so much for the honor you have given me by inviting me to testify on behalf to Judge Sonia Sotomayor.
Today, I represent the proudest neighborhood in the nation, the Bronx, New York. I cannot begin to describe the pride and excitement that my community feels to know that one of our own stands on the verge of a historic confirmation to the Supreme Court.

Like you, I’m often greeted by constituents on the street, at diners, after church services, where I cut my hair, at the local bodega, or my favorite cuchifrito stand.


Usually, we talk about a personal or congressional issue or simply a friendly greeting. Now they just talk about Sonia. They speak about her as if she was a member of their own personal family, about their pride in her accomplishments. They show a profound understanding of just how significant this nomination is and how it proves that, in our country, everything is possible.

One of the best examples of the significance of this nomination is the number of people who are watching these hearings. In the Bronx and in many communities around the nation, folks have come together to share this moment. That is the clearest sign of the pride and joy that they feel. Back home, believe me, it’s a celebration. Like the nominee, my family moved from Puerto Rico to New York. Like her, I grew up in a public housing project in the Bronx. Like her family, we also struggled in our new surroundings. It was tough in the Bronx, but we had dignity and our eye on a better future.

One of the proudest moments of my life came when I was first elected to the New York State Assembly with my classmate, Sen. Chuck Schumer. As we were being sworn in, a friend said to my father, ‘Don Pepe, you’re a lucky man. You have two children, one is a -- one son as a schoolteacher, and the other’s an assemblyman.’ My pop, with that wonderful accented English, looked at him and replied, ‘I busted my back to get lucky.’

I am sure that Judge Sotomayor and her mother have had many similar moments. We are living our parents’ dreams, enabled by their sacrifices and years of hard work.

But our story is not unique to the community we come from. All around our great nation, there are people working day and night, saving, doing without, all in order that their children could live the life that they want for them.

Sonia represents the best of American culture. She comes directly from the strand of our national character that says: You can be anything you want. It says, through hard work, you can reach the top in this country.


She is living proof that our dreams for our children are never impossible.

When you invited me to speak, I wondered if my role here today was to tell you about her legal qualifications. Coming before you are many people who will speak to her work in the legal profession. We know that she is highly regarded and she has a deep understanding of the law and profound respect for the Constitution.

She comes before you with more federal court experience than any other nominee in the last 100 years. You know, I quickly came to the conclusion that my role is to tell you about where she comes from, how she got to this point, and what this means for our country.

We come from rough neighborhoods. We were surrounded by people making due on little. Sometimes there was desperation and despair. Around us were many distractions that could’ve taken us down a totally different road, but there was also ambition and people determined to make something of themselves.

We came from a place where family comes first. Where the core values were hard work and looking out for one another. As I moved out into the wider world, first through the Army and then in my political career, I learned that these were not liberal or New York or Puerto Rican or Latino values. They were American values. Rough neighborhoods may not seem as similar to middle America the values that we hold dear, family, freedom, looking out for the neighbors, all the same.

Everyone watching this nomination this week should know that based upon her background and ideals they’re in good hands with Judge Sotomayor. When I walk into the Capitol to work every day I often stop and think how fortunate I am as a kid from a Bronx project to make it here. It’s an incredible story that I have lived. But since she was nominated by President Obama I’ve had to remember that my story pales in comparison to hers.

In conclusion, this proud woman from the Bronx is perhaps the best and the brightest we have. She has risen to the top through her incredible intellect and hard, hard work. I know that her values are your values and those of the people around this country. Her story is my story, but her story is your story or that of your parents or your grandparents. She will be a brilliant member of the Court, and I urge you to vote for her nomination. And I thank you for allowing me to show up late and for giving me this honor, which is one of the greatest I’ve ever had, to testify on behalf of this great woman.


(UNKNOWN): Thank you, Congressman (Inaudible). It’s an honor to have you here.

KAUFMAN: Congressman, thank you. That was a beautiful statement. We appreciate it very much.

(UNKNOWN): And with your permission, I don’t know if it’s allowed, I have some statements I made about her in the past in 1998 and ’99 that I’d like to submit for the record.

KAUFMAN: Without objection.

(UNKNOWN): Thank you.

KAUFMAN: Our next witness is Mr. David Rivkin. David Rivkin is a partner in a law firm of Baker Hostetler. Previously he was associate executive director and counsel to the President’s Council on Competitiveness at the White House. He also worked in both the Department of Justice and the Department of Energy.
Mr. Rivkin, I look forward to your testimony.

RIVKIN: Chairman Kaufman, Ranking Member Sessions, I want to thank you for the opportunity to testify here today. Indeed I’m honored to be here. Let me begin, though, by noting briefly that I’m appearing here on my own account and do not represent the views of my law firm, its clients, or any other organization which I’m affiliated. And I’m also not expressing a view as to how you should discharge ultimately your advice and consent function.

Without a doubt Justice Sotomayor is both an accomplished jurist and an experienced lawyer. It is nevertheless critical that the Senate weigh her understanding of the judiciary’s proper role in our constitutional system before consenting her appointment.

In my view it is particularly essential that the Senate probe her views on the proper judicial handling of national security cases. This is the case for two reasons.
First the United States remains engaged in a protracted global war against Al Qaeda and Taliban. Winning this war is essential to our country and its conduct presented noble legal challenges rarely seen in previous conflicts.

Second, despite Judge Sotomayor’s long and distinguished service on the federal bench, she has not had an occasion to consider many cases in the national security area. Therefore the central topic of the committee’s inquiries should be Judge Sotomayor’s understanding of the proper role of Article 3 ... vis-a-vis the executive and legislative branches air of national defense. To the extent these hearings and your judgment have not produced sufficient information regarding her views in this area I would urge the committee to pose written questions to her.


As you know, Congress and the president have traditionally been accorded neoplenary authority in the national defense and foreign policy arenas, particularly in the conduct of conflict is involved. In recent years, however, the Supreme Court has dramatically expanded its role in these areas.

In my view it is significant and negative implications for our government’s ability to prevent another devastating attack to the United States and able to win this war. Indeed there can be little doubt that the principle the Supreme Court has developed since Sundy vs. Rosgold was decided in 2004 make it more difficult for the United States to defeat any enemy if it resorts on international warfare. For example the Supreme Court has imposed what’s proven to be an unworkable habeas corpus regime in regard to detainees now held in Guantanamo Bay, Cuba.

Meanwhile the lower courts have begun the process of extending this habeas regime individual captured and held in the United States and other parts of the world, particularly the Bagram air force base in Afghanistan. It was developed in my view threatens ability to wage war in Afghan and fear in general, and presents problems of operations of our special forces in particular.

I want to emphasize that this judicial activism was not prompted by, but was exclusively directed at the previous administration’s alleged exaggerated view of executive power. To begin with the Bush administration’s use of presidential powers in my view was far more modest than that of a previous wartime American president.

Second, in striking the key parts of the Military Commissions Act of 2006 and 2008 ... the Supreme Court invaded the constitution prerogatives of both political branches. The court majority did not seem to be particularly troubled by the fact that Congress and the president worked in concert at the very height of their respective Article 1 and Article 2 constitutional perogatives as identified in Justice Jackson’s seminal (inaudible) analysis.

The substance of these cases aside I’m also troubled by some of the stated assumptions that seem to undergird this ongoing wave of judicial activism in the national security area. The assumptions basically are that the courts are the best guardians of civil liberties, and that the extension of judicial jurisdiction over all national security issues would produce a superior overall policy formation. In my view this view is both historical and profoundly at odds with our constitutional fabric.


In Article 3 courts extend jurisdiction over matters that are not properly subject to judicial jurisdiction extraconstitutionally. Such an action by the courts intercloaked in a high-minded language of individual liberty is no better than any extra-constitutional absorption authority by congressional or executive branch.

As we address those issues today I notice that these concerns are now shared by both sides of the aisle. Despite criticizing President Bush’s wartime policy during last year’s campaign, President Obama has continued virtually all of them. His administration’s litigation strategy on all the pending key national security issues is identical to that of his predecessor.

This is especially true in regard to detention of captured enemy from battalions on trial outside the United States.

His policies continue to be challenged in the courts, and the Supreme Court is certain to play a central role in determining what these policies should be. If Judge Sotomayor is confirmed her rulings would have immense consequences about country’s safety and security.

I believe the Senate owes it to the American people to engage from those issues fully and openly. I thank you for the opportunity to share my views with the committee. I look forward to your questions.

KAUFMAN: Thank you, Mr. Rivkin. Our final witness in this panel is Dr. Stephen Halbrook. Dr. Stephen Halbrook has practiced law for over 30 years, has authored and edited seven books and numerous articles on the 2nd Amendment. Most recently he drafted the amicus brief for the Supreme Court case District of Columbia vs. Heller, which was signed by Vice President Cheney, 55 Senators, and 250 members of the House of Representatives. He’s a graduate of Georgetown University Law Center. Mr. Halbrook, I look forward to your testimony.


HALBROOK: Thank you, Chairman Kaufman, Ranking Member Sessions, Sen. Whitehouse. We’ve learned that Judge Sotomayor ended the great baseball strike. And we’ve learned that she was -- she is a fan of the New York Yankees. However, in her decision in Maloney vs. Cuomo, had the state of New York decided to ban baseball bats it would be upheld under the rational basis test.

Al Capone proved that you can bash out the brains of two colleagues with a baseball bat. Instead of banning one big piece of wood called a baseball bat, New York state banned two little pieces of wood connected by cord called a nunchaku, and that’s what the court upheld in the Maloney case. But for our purposes the issue is the decision in Maloney that the 2nd Amendment does not apply against the states to the 14th Amendment.

The court relied -- the only Supreme Court case relied on my Maloney was Presser vs. Illinois, which simply held that the 1st and 2nd Amendments do not apply directly to state action. It was never raised whether the 14th Amendment incorporated the 2nd Amendment through the due process laws. Presser relied on Cruikshank. Cruikshank relied on three 14th Amendment cases deciding that the Bill of Rights did not apply directly against the states.

HALBROOK: But we -- we find out in Heller, the Heller decision, footnote 23, that Cruikshank does not apply because it did not engage in the kind of modern 14th Amendment analysis that’s required by the Supreme Court cases decided primarily in the 20th century that Bill of Rights guarantees, especially substantive guarantees apply to the states to the due process laws of the 14th Amendment. Despite that admonition in the Heller case decided a year ago, the panel in the Maloney case did not say anything about the modern incorporation analysis.

Now Judge Sotomayor did say yesterday that under Supreme Court precedent the 2nd Amendment does not apply against the states to the 14th Amendment. That’s an inaccurate statement. The Supreme Court has never decided that issue.

Now there are pending before the Supreme Court two cert petitions on that issue, NRA vs. Chicago, which arose out of the 7th Circuit upholding the Chicago handgun ban held that incorporation had to be decided by the Supreme Court, that that Court was not able to do it. And Mr. Maloney has filed his own cert petition, and in fact he’s asked that his case, if cert is granted in NRA vs. Chicago, he’s asked that his case be consolidated with the NRA case.


Now in her questionnaire in response to this committee’s questions Judge Sotomayor stated that conflict of interest would arise from any appeal arising from a decision issued by a panel of the 2nd Circuit that included me as a member. And she stated that she would recuse herself in that case. She has decided the issue now pending before the Supreme Court, and therefore we would expect and we would hope that she would recuse herself if she is in fact confirmed.

Now a case that -- another procurium case that she participated in deciding, Sanchez vs. (inaudible) has disturbing concerns involving both 2nd and 4th Amendment rights. That case held that the mere possession of a firearm gave rise to probable cause to search, seize, and arrest the person in possession thereof. Apparently under New York law the crime to possess a firearm, and it’s only an affirmative defense that you have a license for it.

In that case the court stated that the right to possess a gun is clearly not a fundamental right. That was -- totally unnecessary to the decision. (inaudible) a conviction of an illegal alien for possession of a firearm. And the correct decision would be to say that illegal aliens don’t have 2nd Amendment rights.
And in fact, the court disregarded a Supreme Court decision Verdugo-Urquidez decided in 1990, which explicitly stated that the people -- that term the people in the 1st, 2nd and 4th Amendments refers to the members of our national community and not to aliens and not to illegal aliens.

A third case I want to mention briefly, United States vs. Cavera, an inbound decision by the 2nd Circuit upholding a gun control act prosecution and the sentencing under it, Judge Sotomayor wrote a dissenting opinion that I think is commendable. She made a statement that ‘arbitrary and subjective considerations, such as the judge’s feelings about a particular type of crime, should not form the basis of the sentence.’ And she explained in great detail the reason for that. And that’s exactly the way the law should be interpreted and constitutional rights should be interpreted as well. I think she made the correct decision in that case.

And the question now is whether she will also take 2nd Amendment right seriously. And that’s the big unanswered question. Thank you.

KAUFMAN: Thank you, Mr. Hallberg. Congressman Serrano, you talked about your district and how people feel. How do young people growing up -- are going to be affected by Judge Sotomayor being on the Supreme Court?


SERRANO: It’s amazing that you ask that question. And I assure the rest of the panel I did not give him that question. But I was talking to my chief of staff this morning, who was telling me how many watching parties were taking place in my district this week. Watching parties, people come together, you know, covered plates. They bring food. And they watch.

And that the question that seems to be rising out of the young people is what do I do to go to law school?

Now I don’t know if this country needs more lawyers. You know the jokes about that. And I better stop because I’m not a lawyer. But I believe that what it has done more than anything else -- and it’s not just her being on the Supreme Court but the exchanges between the panel and the judge -- is that people are becoming more aware of law cases, of law issues. And so, number one, I think it will invite young people to consider a legal profession.

Secondly, the issue of pride is so important in your own life. When I was a young man, there weren’t many Puerto Ricans for me to look in New York as successes. So I always led myself of Roberto Clemente, the baseball player, who was such a dignified man and who insisted on being called Roberto and not Bob and then later on said Bob was okay, you know. And I saw that growth. And then his death was part of that dignity of that man.

But now, it’s a different story. Now there are some people who look to me. There are people who look to others. There are people who look to other people. But one -- in closing, let me just say this. Nothing that you can accomplish in this country looks bigger than the presidency or the Supreme Court. And so obviously, it’s going to inspire people to say I can do it. And in fact, she told you here while she was answering some tough questions that in many cases she was telling people you can make it. You can make it. And there’s nothing more pro-American than to say to somebody you can make it.

KAUFMAN: Thank you. Ms. Hynes, how did just an amazing experience as a prosecutor and commercial litigator affect your ruling on the qualifications?


HYNES: Well, it just shows how well rounded she is. I was a prosecutor. Indeed, Bob Morgenthau appointed me in 1967. And in those days, I was the one woman in that office of 100. I have a great picture of a sea of 100 men. And I sit behind Bob, who was the boss, right? And he started my career as he did Judge Sotomayor’s. I’ve had a wonderful career. But I had -- he gave me that opportunity.

And I spent 15 years in the prosecutor’s office. And I went up through the ranks and became executive assistant. But when I left the prosecutor’s office and went out to practice on the defense side, you really get the appreciation of that there are two sides to an issue you really have to measure and judge.

And so I think it makes her more well rounded that she’s seen the prosecution side, those issues, the tensions. You heard the representative of the police association. You have Louie Freeh who we all worked with in that same office.

So she has the appreciation of those tensions. But she also understands the defense side. And she combines that with the, you know, a commercial litigator, a prosecutor, a trial judge, and an appellate judge. I mean, she is the total package. She is the total package. And she has done it, you know, in the best possible way.

And when I listen, as I’ve tried to do through all of the testimony, I think you just have to look at what her background is and her record. And after that, your questions should be answered because she has been a terrific example of someone who has very, very carefully applied the law and done what she thought was right.

I mean, she -- we are all proud of her. When I say I’m particularly proud to be here tonight for this candidate, it’s because in New York, we know the quality of the judging that we have gotten from Judge Sotomayor.


KAUFMAN: Thank you very much. Dean Epps, based on your analysis of your organization of her record, how would you speak about Judge Sotomayor’s judicial temperament?

EPPS: Thank you very much, Senator. We asked a lot of people who had the opportunity to appear before Judge Sotomayor, to appear as opposing counsel, to work with her as co-counsel, to be litigants before her.

And we found universally that people thought she had an extraordinarily appropriate judicial temperament.
That doesn’t mean that she’s not passionate, which we believe that she is. But in all responses, people described her as respectful, considerate, and kind. And so on that particular issue, we were thoroughly satisfied that she has the temperament to be an appropriate associate justice of the Supreme Court.

KAUFMAN: Thank you. Ranking Member Sessions?

SESSIONS: Thank you. Congressman, thank you for your eloquence. I just appreciate that very much. And, Ms. Hynes, your professionalism and approach is worthy of the New York Bar Association. And I agree with you from the beginning that her experience is really the rich kind of experience, almost an ideal experience for any federal appellate judge.

And we wrestle with a lot of issues that are controversial in the legal system today. And a lot of people -- lot of us care deeply about those things. We’re worried about some of the things we see in the courts. And so that, you know, affects how you approach a nominee. But her background and her integrity is exceptional. And I appreciate that.

Ms. Epps, thank you for your testimony. Mr. Rivkin, I just want take a minute because certain -- I guess Lindsey Graham asked some questions about national security issues. You note that Congress and the President have traditionally been accorded near plenary authority in national offense areas. That’s I think consistent with the heritage of our country up until very recent years, post 9/11 years.


And I call your attention to a case before the 2nd Circuit, Gold v. Mukasey last year -- and that’s Atty. Gen. Mukasey, former judge from New York Mukasey -- in which a three-judge panel held -- that included Judge Sotomayor -- ruled in part that certain provisions of the Patriot Act were unconstitutional under the 1st Amendment. Specifically, the panel found unconstitutional the provisions of the Patriot Act allowing senior government officials to certify that the release of certain documents would endanger national security.

The panel stated, ‘The fiat of a government official, though senior in rank and doubtless honorable, cannot displace a judicial obligation to enforce constitutional requirements.’ So does that give insight into Judge Sotomayor’s approach to law? And the opinion went on to state, ‘Under no circumstances should the judiciary become the handmaiden of the executive.’

RIVKIN: Yes, I think it’s a troubling opinion, Sen. Sessions. It may strike some people as a technical case. The panel was concerned with the fact that the certifications by senior government officials, quite senior about, had to be treated as conclusive absent a showing of bad faith. And the view was that it unduly displaces judicial power. But it made judiciary a rubber stamp.

And I find it surprising in a couple ways. First of all, I don’t see how you can read the language as establishing a rubber stamp on the context of a bad-faith inquiry, let’s say by director of FBI in making the certification as to the disclosure of this information. You can ask the director how did you make the decision? What facts did you look at? Was that something you did generically? Did you drill down on it?

How often have you injected such a question in the past?

So it is a meaningful -- it’s a deferential inquiry. But it’s a meaningful inquiry. So I don’t understand, especially in the face of a challenge why would you dismiss it in a sentence?

Point number two, there’s nothing unique about treating governments -- government certifications by government officials as conclusive. There are numerous other criminal justice contexts, including, for example, requests (inaudible) orders arising in the context of grand jury proceedings, requests, for example, for pen register information. They’ve been treated with enormous deference by the court.
And what’s interesting from my perspective, Senator, is that, ironically enough, more deference has been shown over the years to these types of certifications in pure criminal justice cases, drug cases, health fraud cases, than in national security cases, even though to me the (inaudible) public safety is far more palpable in the terrorism.


SESSIONS: I’ve seen some of that in our committee. Could you briefly give me this answer and see if I’m correct? We’ve had a lot of people contend that captured enemy combatants are entitled to habeas corpus.

And even in our committee, senators have continually denied habeas corpus. We’ve repealed habeas corpus. It’s in the Constitution. Why would you deny it to these captives?
But isn’t it true that, when the Constitution was written, made provision for the habeas corpus that it was never thought and never interpreted as applying to enemy combatants that were captured on the battlefield?

RIVKIN: And held overseas, that is absolutely right. That was the teaching of Eisentrager. That was something that happened throughout 200-plus years of American history. And the Supreme Court in the space of four short years has changed that view...

SESSIONS: So when President Bush actually relied on the historic interpretation, he was criticized because the Supreme Court basically changed the law later. Is that correct?

RIVKIN: That is correct. And then -- then the Bush administration established its legal architecture, Sen. Sessions. Anybody who seriously looked at the case law, he positions were entirely reasonable. It’s Supreme Court that went away from it.

And very briefly, what’s even more difficult from my perspective is that lower courts are now extending it further. The biggest problem now is, forget about Guantanamo. It’s extending constitutional habeas to Bagram.


SESSIONS: And in reading Miranda warnings.

RIVKIN: Miranda warnings.

SESSIONS: Mr. Halbrook, you wrote the brief on behalf of 55 senators in favor of the -- in the Heller case. And your view, I guess, was accepted. And is it true that the decision -- the Maloney decision that Judge Sotomayor was a member of the panel that ruled on it -- and you’ve expressed concerns about it -- isn’t it true that that case will need to be reversed or the Second Amendment does not apply to the states and any city in the country and state government could completely deny people the right to keep and bear arms?

HALBROOK: Sen. Sessions...

SESSIONS: If that law became -- go ahead.

HALBROOK: The basic issue is, first of all, the meaning of the 2nd Amendment. In Heller, the court said it protected an individual right to keep and bear arms, including a possession of a handgun in your home.

And Judge Sotomayor’s answers to questions about that decision, by the way, this week have been very noncommittal as to whether she agrees with the decision. She does recognize it as precedent, of course.
And then the next step, though, the next issue is whether the 2nd Amendment applies to the states through the 14th Amendment’s due process clause, like virtually every other Bill of Rights freedom: assembly, petition, free speech, press, unreasonable search and seizure, right to counsel, the whole works.

And it’s only logical once it’s conceded, it’s held that it’s an individual right, that it would be considered an explicitly guaranteed right in the Constitution. Being explicitly guaranteed normally means it’s a fundamental right in the -- the test of, instead of rational relations, the compelling state interest tests would apply, like other fundamental rights. And so that’s the issue that’s before the Supreme Court right now.

SESSIONS: Regardless of whether or not the precedent justified the decision in Maloney -- and I think we can argue about that -- just -- but the point is, that decision would eviscerate effectively the protection -- the constitutional protection to keep and bear arms if it became the Supreme Court opinion.

The Supreme Court affirmed that approach. It’s going to need to reverse that approach or the 2nd Amendment is -- is severely weakened and really eviscerated.


HALBROOK: Well, most of the...

SESSIONS: Is that right, fundamentally...(CROSSTALK)

HALBROOK: That’s correct. There’s 20,000 firearm laws on the books, and most of them are at the state and local level, not federal law. The federal Gun Control Act has expanded greatly in the past years, but most firearms possession issues involve state and local law.

And the -- the ruling in the Seventh Circuit case in NRA vs. Chicago, the ruling in Maloney is that the 2nd Amendment has no application to states and localities, so you could ban firearms, you could ban anything you wanted to ban, anything that would be an arm. The 2nd Amendment just doesn’t apply.

And it would be a curious doctrine that here you have a fundamental right protected in the Bill of Rights to say that it only applies to the federal government the 14th Amendment’s framers desire and intended that the Bill of Rights guarantees apply to the states through the -- through the 14th Amendment. And one of the big issues of protection was the right of freed slaves to keep and bear arms, because they were violated by the black codes that were enacted by the Southern states after the Civil War.

And to get rid of -- of that kind of discrimination, to allow freed freemen to keep and bear arms, to have free speech, and to have all the other rights that are set forth in the Bill of Rights, that was the intent of the 14th Amendment, and that’s the issue before the Supreme Court now, and that’s the issue that Maloney decided adversely.

SESSIONS: Thank you, Mr. Chairman. You’re very kind.

KAUFMAN: Sen. Whitehouse?

WHITEHOUSE: Thank you, Chairman. Here we are with the last panel, last witness, last question, or last questioner, anyway, and I do not want to cause undue trouble, but I would like to react to Dr. Halbrook’s testimony, which, first of all, I think was fine.

You are very learned. You are outside counsel for the National Rifle Association. You’re knowledgeable about their issues. You’ve won these cases in court before. Your advocacy was ardent, but also very polite and cordial, so I have no problem with what your testimony said.


My concern is this -- and I mentioned this in front of the ranking member, because he’s been energetic on this -- on this point. There have been an array of witnesses who’ve made similar points. And there has been an array of questioning -- really, almost non-stop questioning -- on Heller and Maloney.

And as I understand the history of this, for 220 years, the United States Supreme Court never recognized any individual right to bear arms. And just last year, a new conservative majority, by the barest of majorities, discerned for the first time a new constitutional right, individual right to bear arms, which is fine. That’s now the law of the land.

But it applied only in D.C., which is -- so it applied only to federal law, so the case itself never reached the question of the application of the individual right that Heller announced in its application to the states or, for that matter, to municipalities.

And that’s against the background tradition of fairly extensive regulation of firearms by states and municipalities, restrictions on felons in possession, regulation of permits to carry concealed weapons, sentencing enhancement for armed crimes, prohibitions against unauthorized discharge of firearms in city limits and so forth, all of which are well, well, well established.

Now, it could well be that, when the Supreme Court is presented with an opportunity to discuss Heller and to evaluate whether it should be extended to apply against states and municipalities, that it may choose to do that, but it strikes me that that is presently an undecided question by the Supreme Court.

And as you yourself said a moment ago, the question of the application of precedent in Maloney is one we can argue about. And what I would hate to have happen here would be to create an atmosphere in which a Supreme Court candidate feels that he or she is going to walk into a volley of fire if he or she will not announce in advance or signal in advance an intention to expand Heller beyond where it now is, where the law has never gone before.


Maybe it should go there; maybe it will go there. But the point of fact is that, at this point in time, it has not gone there. And I believe there is a point at which it verges on unseemly lobbying of the nominee to send signals as to where she will vote when the inevitable petition to expand Heller gets brought before the court.
I don’t think it’s appropriate for her to decide that now.

I don’t think her decision in Maloney is outside of the bounds of normal judicial precedent, particularly in light of the unique circumstances of this, the Heller decision, the 220 years of having never discovered the right before, the limitation to federal law by virtue of it being a D.C. case, and the long history of state and municipal regulation of firearms without constitutional objection.

So it seems to me that a cautious judge -- small-c conservative judge -- would be inclined not to expand Heller at that point, but to make her decision within what she perceived the law to be at the time, and then if the court wanted to further expand this new constitutional right, that would be the job of the court.

But I hope that we have not in the course of this hearing begun to trespass into a point in which the message is being sent to Justice Sotomayor or to subsequent nominees that they need to signal how they will rule on a case that the Supreme Court has not yet decided in order to achieve confirmation, because I think, again, that crosses the boundary between testing the credentials of a candidate in a proper advise and consent and what is, I think unseemly and improper for the advice and consent process, which is to seek commitments in future cases or to lobby as to outcomes in future cases.

And I know that the ranking member feels very strongly about -- that this right should be extended. And we will all have the opportunity in due course to make our views known.

But I just want to point out that I think, in this advice and consent process, there is a point at which making one’s point about something does trespass on unseemly lobbying. I’m not sure we’ve reached that point yet, but I think we’re in that neighborhood, anyway.

And I would hope that my colleagues, as they evaluate Judge Sotomayor, would take that into consideration and evaluate her based on her talents, her abilities, and not on her failure to give what I think would be an improper advance signal as to how she might rule as a Supreme Court justice in Heller II, whatever the case will be named.


SESSIONS: Well, that’s a good -- you’re a good lawyer. And you make a -- a good point. I would say two things. First, it’s...

WHITEHOUSE: We’re both U.S. attorneys. We argue with each other all the time.

SESSIONS: It’s -- he’s my chairman of the Court Subcommittee. But the -- two things I would say about it. Number one, it’s been appropriate to ask nominees about cases they decided. And she has decided this case.

And I think Sen. Kyl made a good point. If her case were the one that goes up to the Supreme Court, certainly she would recuse herself or would have to, I think, under the rules. And maybe even if another one with the very same issue comes up, maybe she should consider it.

Number two, let me tell you what the average American thinks. Just reading the words in the Constitution, it says, ‘Congress shall make no law respecting the establishment of a religion or free speech.’ It says Congress. That means the United States Congress. But that applies to the states. That’s been incorporated.

The 2nd Amendment says, ‘A well-regulated militia, the right of the people to keep and bear arms shall not be infringed.’ And so that one -- I don’t know how the -- it just seems to apply to the people.

WHITEHOUSE: I think the ranking member is a very good lawyer. And he makes a very good argument. My only point is...


SESSIONS: Maybe we ought to have the expert comment.

WHITEHOUSE: ... the Supreme Court hasn’t accepted that argument yet. And until it does, it is an unanswered question. And, again, I don’t want to say that we’ve trespassed that point at this stage, but I do think that it’s worth demarcating, as we go through this advice and consent process, that there does come a point where it begins to look like we’re pressuring candidates to reach a particular outcome and to make pledges about a particular outcome, rather than simply evaluating the merit of their decisions.

But your argument is -- is very well made. And it may very well prevail when that case comes before the Supreme Court. I thank the panel. I have no further questions. (LAUGHTER) (CROSSTALK)

SESSIONS: Mr. Chairman, it’s been great to serve under your leadership.

KAUFMAN: This is a great -- this is a great panel.

SESSIONS: Who needs Pat Leahy? (LAUGHTER) Don’t you tell him I said that. (LAUGHTER)

KAUFMAN: I need Pat Leahy. All I need is Pat Leahy and a member of the Appropriations Committee, and I could really -- I want to thank the panel. And, frankly, I want to thank all the panels.

I mean, it is -- it is -- this is -- this is an incredible process. The ranking member said, when we first started, that this is an educational experience for the American people. And I’ve been dealing with this process for a long time, and I really think that’s true. People get to stop for a minute, look at our Constitution, look at the way our process works, and this is just a wonderful week in which people came, they argued, they fought. I mean, just this last exchange, everyone could say what they think. We had not just the members of the Congress -- not just the members of the Senate, but members of Congress from the public.

I just think it’s a wonderful -- wonderful example of what a great country this is and how our Constitution works.

I’d also like to thank Chairman Leahy and Ranking Member Sessions for doing a very thorough hearing, being very open to letting people go where they go, and yet still getting this -- this whole thing done in record time.


This is an incredibly important process. I -- I believe, as a student of the Congress, outside of the decision to go to war, the decision of who’s going to be on the Supreme Court is the single most important decision that you make as a United States senator.

Because when you pick a member for the Supreme Court, you’re picking someone who serves for life. And if Judge Sotomayor is confirmed and serves on the court, she’ll probably be here long after this panel of senators is gone.

WHITEHOUSE: Speak for yourself.

KAUFMAN: Except for Sen. Whitehouse. (LAUGHTER) But I just want to thank everybody for doing that. The chairman’s left the record open until 5 p.m. Senator Sessions, anything you’d like to say?

SESSIONS: Thank you.

KAUFMAN: This hearing is hereby adjourned. ###

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 1 of Thursday’s testimony is now available 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 7 of Thursday’s testimony is available here.