Sotomayor hearings: All senators' opening statement texts: Leahy, Sessions, et al
As we often do at The Ticket, we will be publishing in full the opening statements of senators on the Judiciary Committee at the start of the Supreme Court confirmation hearings for Judge Sonia Sotomayor. Below are statements by Sens. Patrick Leahy, Democrat of Vermont; Jeff Sessions, Republican of Alabama; Chuck Grassley, Republican of Iowa; Democrats Herb Kohl and Russ Feingold of Wisconsin; Democrat Chuck Schumer of New York; Benjamin Cardin of Maryland, a Democrat.
Also: Dianne Feinstein, Democrat of California; Republican John Cornyn of Texas; Democrat Sheldon Whitehouse of Rhode Island; Republican Lindsey Graham of South Carolina; Republicans Jon Kyl of Arizona and Tom Coburn of Oklahoma; and Democrats Dick Durbin of Illinois, Amy Klobuchar of Minnesota, Ted Kaufman of Delaware and Al Franken of Minnesota.
First up is the committee's new chairman, Patrick Leahy, Democrat of Vermont, July 13, 2009:
Today, we consider the nomination of Judge Sonia Sotomayor to be a Justice of the United States Supreme Court. Our Constitution assigns just 101 of us the responsibility to act on behalf of all 320 million Americans in considering this important appointment. The President has done his part and made an historic nomination. Now it is up to the Senate to do its part on behalf of the American people.
President Obama often quotes Dr. Martin Luther King, Jr.'s insight that "the arc of the moral universe is long, but it bends toward justice." Each generation of Americans has sought that arc toward justice. We have improved upon the foundation of our Constitution through the Bill of Rights, the Civil War amendments, the 19th Amendment's expansion of the right to vote to women, the Civil Rights Act of 1964 and Voting Rights Act of 1965, and the 26th Amendment's extension of the right to vote to young people. These actions have marked progress toward our more perfect union. This nomination can be another step along that path.
Judge Sotomayor's journey to this hearing room is a truly American story. She was raised by her mother, Celina, a nurse, in the South Bronx. Like her mother, Sonia Sotomayor worked hard. She....
... graduated as the valedictorian of her class at Blessed Sacrament and at Cardinal Spellman High School in New York.
She was a member of just the third class at Princeton University in which women were included. She continued to work hard, including reading classics that had been unavailable to her when she was younger and arranging tutoring to improve her writing.
She graduated summa cum laude, Phi Beta Kappa, and was awarded the M. Taylor Senior Pyne Prize for scholastic excellence and service to the university, an honor awarded for outstanding merit.
After excelling at Princeton she entered Yale Law School, where she was an active member of the law school community. Upon graduation, she had many options but chose to serve her community in the New York District Attorney's Office, where she prosecuted murders, robberies, assaults and child pornography.
The first President Bush named her to the Federal bench in 1992, and she served as a trial judge for six years. President Clinton named her to the United States Court of Appeals for the Second Circuit where she has served for more than 10 years. She was confirmed each time by a bipartisan majority of the Senate.
Judge Sotomayor's qualifications are outstanding. She has more Federal court judicial experience than any nominee to the United States Supreme Court in 100 years. She is the first nominee in well over a century to be nominated to three different Federal judgeships by three different Presidents.
She is the first nominee in 50 years to be nominated to the Supreme Court after serving as both a Federal trial judge and a Federal appellate judge. She will be the only current Supreme Court Justice to have served as a trial judge. She was a prosecutor and a lawyer in private practice. She will bring a wealth and diversity of experience to the Court.
I hope all Americans are encouraged by Judge Sotomayor's achievements and by her nomination to the Nation's highest court. Hers is a success story in which all Americans can take pride.
Those who break barriers often face the added burden of overcoming prejudice. That has been true on the Supreme Court. Thurgood Marshall graduated first in his law school class, was the lead counsel for the NAACP Legal Defense Fund, sat on the United States Court of Appeals for the Second Circuit, and served as the Nation's top lawyer, the Solicitor General of the United States.
He won a remarkable 29 out of 32 cases before the Supreme Court. Despite his qualifications and achievements, at his confirmation hearing, he was asked questions designed to embarrass him, questions such as "Are you prejudiced against the white people of the South?"
The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism and charges that he was a "radical". The commentary at the time included questions about "the Jewish mind" and how "its operations are complicated by altruism." Likewise, the first Catholic nominee had to overcome the argument that "as a Catholic he would be dominated by the pope."
I trust that all Members of this Committee here today will reject the efforts of partisans and outside pressure groups that have sought to create a caricature of Judge Sotomayor while belittling her record, her achievements and her intelligence. Let no one demean this extraordinary woman, her success, or her understanding of the constitutional duties she has faithfully performed for the last 17 years.
I hope all Senators will join together as we did when we considered President Reagan's nomination of Sandra Day O'Connor as the first woman to serve on the Supreme Court and voted unanimously to confirm her.
This hearing is an opportunity for Americans to see and hear Judge Sotomayor for themselves and to consider her qualifications. It is the most transparent confirmation hearing ever held. Judge Sotomayor's decisions and confirmation materials have been posted online and made publicly available.
The record is significantly more complete than that available when we considered President Bush's nominations of John Roberts and Samuel Alito just a few years ago. The Judge's testimony will be carried live on several television stations and live via webcast on the Judiciary Committee website.
My review of her judicial record leads me to conclude that she is a careful and restrained judge with a deep respect for judicial precedent and for the powers of the other branches of the government, including the law-making role of Congress.
That conclusion is supported by a number of independent studies that have been made of her record, and shines through in a comprehensive review of her tough and fair record on criminal cases. She has a deep understanding of the real lives of Americans, the duty of law enforcement to help keep Americans safe, and the responsibilities of all to respect the freedoms that define America.
Unfortunately, some have sought to twist her words and her record and to engage in partisan political attacks. Ideological pressure groups have attacked her before the President had even made his selection. They then stepped up their attacks by threatening Republican Senators who do not oppose her.
In truth, we do not have to speculate about what kind of a Justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence. She has been a judge for all Americans and will be a Justice for all Americans.
Our ranking Republican Senator on this Committee reflected on the confirmation process recently, saying: "What I found was that charges come flying in from right and left that are unsupported and false. It's very, very difficult for a nominee to push back. So I think we have a high responsibility to base any criticisms that we have on a fair and honest statement of the facts and that nominees should not be subjected to distortions of their record." I agree.
As we proceed, let no one distort Judge Sotomayor's record. Let us be fair to her and to the American people by not misrepresenting her views.
We are a country bound together by our Constitution. It guarantees the promise that ours will be a country based on the rule of law. In her service as a Federal judge, Sonia Sotomayor has kept faith with that promise. She understands that there is not one law for one race or another. There is not one law for one color or another. There is not one law for rich and a different one for poor. There is only one law.
She has said that" ultimately and completely" a judge has to follow the law, no matter what their upbringing has been. That is the kind of fair and impartial judging that the American people expect. That is respect for the rule of law. That is the kind of judge she has been. That is the kind of fair and impartial Justice she will be and that the American people deserve.
Judge Sotomayor has been nominated to replace Justice Souter, whose retirement last month has left the Court with only eight Justices. Justice Souter served the Nation with distinction for nearly two decades on the Supreme Court with a commitment to justice, an admiration for the law, and an understanding of the impact of the Court's decisions on the daily lives of ordinary Americans.
I believe that Judge Sotomayor will be in this same mold and will serve as a Justice in the manner of Sandra Day O'Connor, committed to the law and not to ideology.
In the weeks and months leading up to this hearing, I have heard the President and Senators from both sides of the aisle make reference to the engraving over the entrance of the Supreme Court. The words engraved in that Vermont marble say: "Equal Justice Under Law." Judge Sotomayor's nomination keeps faith with those words.
Before I begin, I want to thank Chairman Leahy for his openness and willingness to work together on the procedures for this hearing. I hope it will be viewed as the best hearing this Committee has ever held.
Judge Sotomayor, I join Chairman Leahy in welcoming you here today.
This hearing marks an important milestone in your distinguished legal career. I know your family is proud, and rightfully so. It is a pleasure to have them with us today.
I expect this hearing and resulting debate to be characterized by a respectful tone, a discussion of serious issues, and a thoughtful dialogue, and I have worked hard to achieve that from day one.
I have been an active litigator in federal courts for the majority of my professional life. I have tried cases in private practice, as a federal prosecutor with the Department of Justice, and as Attorney General of the State of Alabama.
The Constitution and our great heritage of law are things I care deeply about—they are the foundation of our liberty and prosperity.
This nomination hearing is critically important for two reasons.
First, Justices on the Supreme Court have great responsibility, hold enormous power, and have a lifetime appointment.
Just five members can declare the meaning of our Constitution, bending or changing its meaning from what the people intended.
Second, this hearing is important because I believe our legal system is at a dangerous crossroads.
Down one path is the traditional American legal system, so admired around the world, where judges impartially apply the law to the facts without regard to their own personal views.
This is the compassionate system because this is the fair system.
In the American legal system, courts do not make the law or set policy, because allowing unelected officials to make laws would strike at the heart of our democracy.
Here, judges take an oath to administer justice impartially, which reads:
"I . . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States. So help me God."
These principles give the traditional system its moral authority, which is why Americans respect and accept the rulings of courts—even when they lose.
Indeed, our legal system is based on a firm belief in an ordered universe and objective truth. The trial is the process by which the impartial and wise judge guides us to the truth.
Down the other path lies a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political and social agenda. I reject this view.
We have seen federal judges force their own political and social agenda on the nation, dictating that the words "under God" be removed from the Pledge of Allegiance and barring students from even silent prayer in schools.
Judges have dismissed the people's right to their property, saying the government can take a person's home for the purpose of developing a private shopping center.
Judges have—contrary to the longstanding rules of war—created a right for terrorists, captured on a foreign battlefield, to sue the United States government in our own courts.
Judges have cited foreign laws, world opinion, and a United Nations resolution to determine that a state death penalty law was unconstitutional.
I'm afraid our system will only be further corrupted as a result of President Obama's views that, in tough cases, the critical ingredient for a judge is the "depth and breadth of one's empathy," as well as "their broader vision of what America should be."
Like the American people, I have watched this for a number of years, and I fear this "empathy standard" is another step down the road to a liberal activist, results-oriented, and relativistic world where:
• Laws lose their fixed meaning,
• Unelected judges set policy,
• Americans are seen as members of separate groups rather than simply Americans, and
• Where the constitutional limits on government power are ignored when politicians want to buy out private companies.
So, we have reached a fork in the road. And there are stark differences between the two paths.
I want to be clear:
I will not vote for—no senator should vote for—an individual nominated by any President who is not fully committed to fairness and impartiality towards every person who appears before them.
I will not vote for—no senator should vote for—an individual nominated by any President who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.
In my view, such a philosophy is disqualifying.
Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.
Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth it is more akin to politics. And politics has no place in the courtroom.
Some will respond, "Judge Sotomayor would never say that it's acceptable for a judge to display prejudice in a case."
But, I regret to say, Judge Sotomayor has outlined such a view in many, many statements over the years.
Let's look at just a few examples:
We've all seen the video of the Duke University panel where Judge Sotomayor says "?it is [the] Court of Appeals where policy is made. And I know, and I know, that this is on tape, and I should never say that."
And during a speech 15 years ago, Judge Sotomayor said, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt . . . continuously to judge when those opinions, sympathies, and prejudices are appropriate."
And in the same speech, she said, "my experiences will affect the facts I choose to see as a judge."
Having tried cases for many years, these statements are shocking and offensive to me.
I think it is noteworthy that, when asked about Judge Sotomayor's now-famous statement that a "wise Latina" would come to a better conclusion than others, President Obama, White House Press Secretary Robert Gibbs, and Supreme Court Justice Ginsburg declined to defend the substance of the nominee's remarks.
They each assumed that the nominee misspoke. But the nominee did not misspeak. She is on record making this statement at least five times over the course of a decade.
These are her own words, spoken well before her nomination. They are not taken out of context.
I am providing a copy of the full text of these speeches to the hearing room today.
Others will say that, despite these statements, we should look to the nominee's record, which they characterize as moderate. People said the same of Justice Ginsburg, who is now considered to be one of the most activist judges in history.
Some senators ignored Justice Ginsburg's philosophy and focused on the nominee's judicial opinions. But that is not a good test because those cases were necessarily restrained by precedent and the threat of reversal from higher courts.
On the Supreme Court, those checks on judicial power will be removed, and the judge's philosophy will be allowed to reach full bloom.
But even as a lower court judge, the nominee has made some very troubling rulings.
I am concerned by the nominee's decision in Ricci, the New Haven Firefighters case—recently reversed by the Supreme Court—where she agreed with the City of New Haven's decision to change its promotion rules in the middle of the game.
Incredibly, her opinion consisted of just one substantive paragraph of analysis concerning the major legal question involved in the case.
Judge Sotomayor has said that she accepts that her opinions, sympathies, and prejudices will affect her rulings. Could it be that her time as a leader of the Puerto Rican Legal Defense and Education Fund provides a clue as to her decision against the firefighters?
While the nominee was Chair of the Fund's Litigation Committee, the organization aggressively pursued racial quotas in city hiring and, in numerous cases, fought to overturn the results of promotion exams.
It seems to me that in Ricci, Judge Sotomayor's empathy for one group of firefighters turned out to be prejudice against the others.
That is, of course, the logical flaw in the "empathy standard." Empathy for one party is always prejudice against another.
Judge Sotomayor, we will inquire into how your philosophy, which allows subjectivity into the courtroom, affects your rulings on issues like:
• Abortion, where an organization in which you were an active leader argued that the Constitution requires that taxpayer money be used for abortions;
• Gun control, where you recently ruled that it is "settled law" that the Second Amendment does not prevent a city or state from barring gun ownership;
• Private property, where you have already ruled that the government could take property from one pharmacy developer and give it to another; and
• Capital punishment, where you personally signed a statement opposing the reinstatement of the death penalty because of the "inhuman[e] psychological burden" it places on the offender and his or her family.
I hope the American people will follow these hearings closely.
They should learn about the issues, and listen to both sides of the argument. And, at the end of the hearing, ask: 'If I must one day go to court, what kind of judge do I want to hear my case?
'Do I want a judge that allows his or her social, political, or religious views to change the outcome?
'Or, do I want a judge that impartially applies the law to the facts, and fairly rules on the merits, without bias or prejudice?' It is our job to determine on which side of that fundamental divide the nominee stands.
Statement by Sen. Chuck Grassley, Republican of Iowa:
Judge Sotomayor, congratulations on your nomination to be an Associate Justice on the Supreme Court of the United States. Welcome to the Judiciary Committee. I extend a warm welcome to your family and friends. They must all be very proud of your nomination, and rightfully so.
Judge Sotomayor, you have a distinguished legal and judicial record. No doubt it's one we'd expect of any individual nominated to be a Supreme Court Justice. You made your start from very humble beginnings. You overcame substantial obstacles and went on to excel at some of the nation's top schools. You became an Assistant District Attorney and successful private practice attorney in New York City. You've been on the federal bench as a district court and appellate court judge since 1992. These are all impressive legal accomplishments which certainly qualify you as Supreme Court material.
However, an impressive legal record and a superior intellect are not the only criteria we consider. To be truly qualified, the nominee must understand the proper role of a judge in society. That is, we want to be absolutely certain that the nominee will faithfully interpret the law and Constitution without personal bias or prejudice. This is the most critical qualification of a Supreme Court Justice – the capacity to set aside one's own feelings so he or she can blindly and dispassionately administer equal justice for all.
So the Senate has a constitutional responsibility of "advise and consent" to confirm intelligent, experienced individuals anchored in the Constitution, not individuals who will pursue personal and political agendas from the bench. Judge Sotomayor, you are nominated to the highest court of the land which has the final say on the law. As such, it's even more important for the Senate to ascertain whether you can resist the temptation to mold the Constitution to your own personal beliefs and preferences.
It's even more important for the Senate to ascertain whether you can dispense justice without bias or prejudice. Supreme Court Justices sit on the highest court of the land, so they aren't as constrained to follow precedent to the same extent as district or circuit judges.
There is a proper role of a judge in our system of limited government and checks and balances. Our democratic system of government demands that judges not take on the role of policy makers. That's a role properly reserved to legislators. The Supreme Court is meant to be a legal institution, not a political one. But some individuals and groups don't see it that way.
They see the Supreme Court as ground zero for their political and social battles. They want Justices to implement their political and social agenda through the judicial process. That's not what our great American tradition envisioned – those battles are appropriately fought in the legislative branch. So it's incredibly important that we confirm the right kind of person to be a Supreme Court Justice.
Supreme Court nominees should respect the constitutional separation of powers. They should understand that the touchstone of being a good judge is the exercise of judicial restraint. Good judges understand that their job is not to impose their own personal opinions of "right" and "wrong." They know their job is to say what the law "is," rather than what they personally think it "ought to be."
Good judges understand that they must meticulously apply the law and the Constitution, even if the results they reach are unpopular. Good judges know that the Constitution and the laws constrain judges every bit as much as they constrain legislators, executives and citizens. Good judges not only understand these fundamental principles, they live and breathe them.
President Obama said that he would nominate judges based on their ability to "empathize" in general and with certain groups in particular. This "empathy" standard is troubling to me. In fact, I'm concerned that judging based on 'empathy" is really just legislating from the bench.
The Constitution requires that judges be free from personal politics, feelings and preferences. President Obama's "empathy" standard appears to encourage judges to make use of their personal politics, feelings and preferences. This is contrary to what most of us understand to be the role of the judiciary.
Judge Sotomayor, President Obama clearly believes you measure up to his "empathy" standard. That worries me. I've reviewed your record and have concerns about your judicial philosophy. For example, in one speech, you doubted that a judge could ever be truly impartial. In another speech, you argued it'd be a "disservice both to the law and society" for judges to disregard personal views shaped by one's "differences as women or men of color." In yet another speech, you proclaimed that the court of appeals is where "policy is made."
Your "wise Latina" comment starkly contradicts a statement by Justice O'Connor that "a wise old woman and a wise old man would eventually reach the same conclusion in a case." These statements go directly to your views of how a judge should use his or her background and experiences when deciding cases. Unfortunately, I fear they don't comport with what I and many others believe is the proper role of a judge or an appropriate judicial method.
The American legal system requires that judges check their biases, personal preferences and politics at the door of the courthouse. Lady Justice stands before the Supreme Court with a blindfold holding the scales of justice. Just like Lady Justice, judges and Justices must wear blindfolds when they interpret the Constitution and administer justice.
Judge Sotomayor, I'll be asking you about your ability to wear that judicial blindfold. I'll be asking you about your ability to decide cases in an impartial manner and in accordance with the law and Constitution. I'll be asking you about your judicial philosophy, whether you allow biases and personal preferences to dictate your judicial method.
Ideally, the Supreme Court shouldn't be made up of men and women who are on the side of one special group or issue. Rather, the Supreme Court should be made up of men and women who are on the side of the law and the Constitution. I'm looking to support a restrained jurist committed to the rule of law and the Constitution. I'm not looking to support a creative jurist who will allow his or her background and personal preferences to decide cases.
Judge Sotomayor, the Senate needs to do its job and conduct a comprehensive and careful review of your record and qualifications. You are nominated to a lifetime position on the highest court. The Senate has a tremendous responsibility to confirm an individual who has superior intellectual abilities, solid legal expertise, and an even judicial demeanor and temperament. Above all, we have a tremendous responsibility to confirm an individual who truly understands the proper role of a Justice.
I'll be asking questions about your judicial qualifications. However, I'm also committed to giving you a fair and respectful hearing, as is appropriate of all Supreme Court nominees. Again, Judge Sotomayor, I congratulate you on your nomination.
Statement by Sen. Herb Kohl, Democrat of Wisconsin:
Judge Sotomayor, let me also extend my welcome to you this morning and to your family. You are to be congratulated on your nomination.
Your nomination is a reflection of who we are as a country and it represents an American success story that we can all be proud of. Your academic and professional accomplishments - as prosecutor, private practitioner, trial judge and appellate judge - are exemplary. And as a judge, you have brought a richness of experience to the bench and to the judiciary which has been an inspiration for so many.
Today, we begin a process through which the Senate engages in its Constitutional role to "advise and consent" on your nomination. This week's hearing is the only opportunity we, and the American people, will have to learn about your judicial philosophy, your temperament, and your motivations before you put on the black robe and are heard from only in your judicial opinions.
The President has asked us to entrust you with an immense amount of power. Power which, by design, is free from political constraints, unchecked by the people, and unaccountable to Congress, except in the most extreme circumstances.
Our democracy, our rights, and everything we hold dear about America are built on the foundation of our Constitution. For more than 200 years, the Court has interpreted the meaning of the Constitution and in doing so guaranteed our most cherished rights.
The right to equal education regardless of race. The right to an attorney and a fair trial for the accused. The right to personal privacy. The right to speak, vote and worship without interference from the government. Should you be confirmed, you and your colleagues will decide the future scope of our rights and the breadth of our freedoms. Your decisions will shape the fabric of American society for years to come.
That is why it is so important that over the course of the next few days, we gain a good understanding of what is in your heart and your mind. We don't have a right to know in advance how you will rule on cases which will come before you. But we need – and we deserve – to know what you think about fundamental issues such as civil rights, privacy, property rights, the separation of church and state, and civil liberties, to name a few.
Some believe that the confirmation process has become thoroughly scripted, and that nominees are far too careful in cloaking their answers to important questions in generalities and with caveats about future cases. I recognize this concern, but I also hope that you recognize our desire to have a frank discussion with you about substantive issues.
These are not just concepts for law books. They are issues Americans care about. As crime plagues our communities, we navigate the balance between individual rights and the duty of law enforcement to protect and maintain order. As families struggle to make ends meet in these difficult times, we question the permissible role for government in helping get the economy back on track.
As we continue to strive for equal rights in our schools and workplaces, we debate the tension between admissions policies and hiring practices that acknowledge diversity and those that attempt to be color-blind.
These issues invite all Americans to struggle with the dilemmas of democracy and the great questions of our Constitution. If we discuss them with candor, I believe we will have a conversation that the American people will profit from.
When considering Supreme Court nominees over the years, I have judged each one with a test of judicial excellence.
First, judicial excellence means the competence, character, and temperament that we expect of a Supreme Court Justice. He or she must have a keen understanding of the law, and the ability to explain it in ways that both the litigants and the American people will understand and respect, even if they disagree with the outcome.
Second, I look for a nominee to have the sense of values which form the core of our political and economic system. No one, including the President, has the right to require ideological purity from a member of the Supreme Court. But we do have a right to require that the nominee accept both the basic principles of the Constitution and its core values implanted in society.
Third, we want a nominee with a sense of compassion. This is a quality that I have considered with the last 6 Supreme Court Justices. Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than an intellectual game, and more than a mental exercise.
As Justice Black said, "The courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered or because they are non-conforming victims of prejudice and public excitement."
A Supreme Court Justice must be able to recognize that real people, with real problems are affected by the decisions rendered by the court. They must have a connection with and an understanding of the problems that people struggle with on a daily basis. Justice, after all, may be blind, but it should not be deaf.
As Justice Thomas told us at his confirmation hearing, it is important that a justice, "can walk in the shoes of the people who are affected by what the Court does." I believe this comment embodies what President Obama intended when he said he wanted a nominee with "an understanding of how the world works and how ordinary people live."
Your critics are concerned that your background will inappropriately impact your decision-making. But, it is impossible for any of us to remove ourselves from our life story with all of the twists and turns that make us who we are.
As you have acknowledged, "My experiences in life unquestionably shape my attitudes." And, I hope that we on this Committee can appreciate and relate to ourselves what you said next, "but I am cognizant enough that mine is not the only experience." You will have an opportunity before this Committee to assure us that your life experiences will impact but not overwhelm your duty to follow the law and Constitution.
After your confirmation to the Court of Appeals in 1998, you said about the discussions at your confirmation hearing, "So long as people of good will are participating in the process and attempting to be balanced in their approach, then the system will remain healthy." I hope our process will include a healthy level of balanced and respectful debate and I look forward to the opportunity to learn more about you and what sort of justice you aspire to be.
Statement by Sen. Russ Feingold, Democrat of Wisconsin:
The Supreme Court plays a unique and central role in the life of our nation. Those who sit as Justices have extraordinary power over some of the most important, and most intimate, aspects of the lives of American citizens. It is therefore not surprising at all that the nomination and confirmation of a Supreme Court Justice is such a widely anticipated and widely covered event.
The nine men and women who sit on the court have enormous responsibilities, and those of us tasked with voting on the confirmation of a nominee have a significant responsibility as well. I consider this one of the most consequential things I must do as a United States Senator, and I am honored and humbled to have been given this role by the people of Wisconsin.
"The ultimate responsibility of the Supreme Court is to safeguard the rule of law, which defines us as a nation, and protects us all. In the past eight years, the Supreme Court has played a crucial role in checking some of the previous Administration's most egregious departures from the rule of law. Time after time in cases arising out of actions taken by the administration after September 11, the Court has said 'No. You have gone too far.'
"It said 'No' to the Bush Administration's view that it could set up a law-free zone at Guantanamo Bay. It said 'No' to the administration's view that it could hold a citizen in the United States incommunicado indefinitely, with no access to a lawyer. It said 'No' to the administration's decision to create military commissions without congressional authorization. And it said 'No' to the administration and to Congress when they tried to strip the constitutional right to habeas corpus from prisoners held at Guantanamo.
"These were courageous decisions, and in my opinion, they were correct decisions. They made plain, as Justice O'Connor wrote in the Hamdi decision in 2004, 'A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.'
"These were also close decisions, some decided by a 5-4 vote. That fact underscores the unparalleled power that each Supreme Court justice has. In my opinion, one of the most important qualities that a Supreme Court justice must have is courage: courage to stand up to the president, and to Congress, in order to protect the constitutional rights of the American people and preserve the rule of law.
"I have touched on the crucial recent decisions of the Court in the area of executive power, but we know, of course, that there are countless past Supreme Court decisions that have had a major impact on many aspects of our national life.
The Court rejected racial discrimination in education; it guaranteed the principle of 'one person, one vote'; it made sure that even the poorest person accused of a crime in this country can be represented by counsel; it made sure that newspapers can't be sued for libel by public figures for making a mistake; it protected the privacy of telephone conversations from unjustified government eavesdropping; it protected an individual's right to possess a firearm for private use, and it even decided a presidential election.
It made these decisions by interpreting and applying open-ended language in our Constitution like 'equal protection of the laws,' 'due process of law,' 'freedom of ? the press,' 'unreasonable searches and seizures,' and 'the right to bear arms.' These momentous decisions were not simply the result of an umpire calling balls and strikes. Easy cases where the law is clear almost never make it to the Supreme Court. The great constitutional issues that the Supreme Court is called upon to decide require much more than mechanical application of universally accepted legal principles.
"That is why Justices need great legal expertise, but they also need wisdom, they need judgment, they need to understand the impact of their decisions on the parties before them and the country around them, from New York City to small towns like Spooner, Wisconsin, and they need a deep appreciation of and dedication to equality, to liberty, to democracy.
"That is why I suggest to everyone watching today that they be a little wary of a phrase they may hear at these hearings – 'judicial activism.' That term really has lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as 'activist' in their disregard for precedent and their willingness to ignore or override the intent of Congress.
At this point, perhaps we should all accept that the best definition of a 'judicial activist' is a judge who decides a case in a way you don't like. Each of the decisions I mentioned earlier was undoubtedly criticized by someone at the time it was issued, and maybe even today, as being 'judicial activism.' Yet some of them are among the most revered Supreme Court decisions in modern times.
"Mr. Chairman, every senator is entitled to ask whatever questions he or she wants at these hearings and to look to whatever factors he or she finds significant in evaluating this nominee. I hope Judge Sotomayor will answer all questions as fully as possible. I will have questions of my own on a range of issues.
Certainly, with the two most recent Supreme Court nominations, senators asked tough questions and sought as much information from the nominees as we possibly could get. I expect nothing less from my colleagues in these hearings. I'm glad, however, that Judge Sotomayor will finally have an opportunity to answer some of the unsubstantiated charges that have been made against her.
"One attack that I find particularly shocking is the suggestion that she will be biased against some litigants because of her racial and ethnic heritage. This charge is not based on anything in her judicial record because there is absolutely nothing in the hundreds of opinions she has written to support it.
That long record – which is obviously the most relevant evidence we have to evaluate her – demonstrates a cautious and careful approach to judging. Instead, a few lines from a 2001 speech, taken out of context, have prompted some to charge that she is a racist. I believe that no one who reads the whole Berkeley speech could honestly come to that conclusion.
The speech is actually a remarkably thoughtful attempt to grapple with a difficult issue not often discussed by judges – how do a judge's personal background and experiences affect her judging. And Judge Sotomayor concludes her speech by saying the following:
'I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me require.'
"Mr. Chairman, those are the words of a thoughtful, humble, and self-aware judge striving to do her very best to administer impartial justice for all Americans, from New York City to Spooner, Wisconsin. It seems to me that is a quality we want in our judges.
"Judge Sotomayor is living proof that this country is moving in the right direction on the issue of race, that doors of opportunity are finally starting to open to all of our citizens. Just as the election of President Obama gave new hope and encouragement to African American children all over this country, Judge Sotomayor's nomination will inspire countless Hispanic American children to study harder and dream higher, and that is something we should all celebrate.
"Let me again welcome and congratulate the nominee. I look forward to learning in these hearings whether she has the knowledge, the wisdom, the judgment, the integrity, and yes, the courage, to serve with distinction on our nation's highest court. Thank you Mr. Chairman."
Statement by Sen. Chuck Schumer, Democrat of New York:
Thank you, Mr. Chairman and Ranking Member Sessions.
And welcome to the many members of Judge Sotomayor's family, who I know are exceptionally proud to be here today in support of her historic nomination.
Our presence here today is about a nominee who is supremely well-qualified, with experience on the district court and appellate court benches that is unmatched in recent history. It is about a nominee who, in 17 years of judging, has authored opinion after opinion that is smart, thoughtful, and judicially modest.
In short, Judge Sotomayor has stellar credentials. There's no question about that. Judge Sotomayor has twice before been nominated to the bench and gone through confirmation hearings with bipartisan support. The first time, she was nominated by a Republican President.
But most important, Judge Sotomayor's record bespeaks judicial modesty—something that our friends on the right have been clamoring for—in a way that no recent nominee's has. It is the judicial record, more than speeches and statements, more than personal background, that most accurately measures how "modest" a judicial nominee will be.
There are several ways of measuring modesty in the judicial record. I think that Judge Sotomayor more than measures up to each of them.
First, as we will hear in the next few days, Judge Sotomayor puts rule of law above everything else. Given her extensive and even-handed record, I am not sure how any member of this panel can sit here today and seriously suggest that she comes to the bench with a personal agenda. Unlike Justice Alito, she does not come to the bench with a record number of dissents.
Instead, her record shows that she is in the mainstream:
- She has agreed with your Republican colleagues 95 percent of the time;
- She has ruled for the government in 83 percent of immigration cases;
- She has ruled for the government in 92 percent of criminal cases;
- She has denied race claims in 83 percent of cases;
- She has split evenly in a variety of employment cases.
Second – and this is an important point because of her unique experience in the district court – Judge Sotomayor delves thoroughly into the facts of each case. She trusts that an understanding of the facts will lead, ultimately, to justice.
I would ask my colleagues to do this: examine a sampling of her cases in a variety of areas. In case after case after case, Judge Sotomayor rolls up her sleeves, learns the facts, applies the law to the facts, and comes to a decision irrespective of her inclinations or her personal experience.
- In a case involving a New York police officer who made white supremicist remarks, she upheld his right to make them;
- In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it;
- And she upheld the First Amendment right of a prisoner to wear religious beads under his uniform.
And, in hot-button cases such as ones involving professional sports, she carefully adheres to the facts before her. She upheld the NFL's ability to maintain certain player restrictions, and she also ruled in favor of baseball players to end the Major League Baseball strike.
I'd rather have a Supreme Court justice whose clear and obvious agenda is to examine each case than one whose covert goal is to change the way that courts decide cases.
Third, Judge Sotomayor has hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called "sympathetic" litigants.
In dissenting from an award of damages to injured plaintiffs in a maritime accident, she wrote "we start with the assumption that it is for Congress, not the federal courts, to articulate the appropriate standards to be applied as a matter of federal law."
Just short of four years ago, then-Judge Roberts sat where Judge Sotomayor is sitting. He told us that his jurisprudence would be characterized by "modesty and humility." He illustrated this with a now well-known quote: "Judges are like umpires. Umpires don't make the rules. They apply them."
Chief Justice Roberts was, and is, a supremely intelligent man with impeccable credentials. But many can debate whether during his four years on the Supreme Court he actually has called pitches as they come -- or has tried to change the rules.
But any objective review of Judge Sotomayor's record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years, far more closely than Chief Justice Roberts has during his four years on the Supreme Court.
More important, if Judge Sotomayor continues to approach cases on the Supreme Court as she has for the last 17 years, she will actually be modest. This is because she does not adhere to a philosophy that dictates results over the facts that are presented.
So, if the number one standard that conservatives use and apply is judicial "modesty and humility" – no activism on the Supreme Court – they should vote for Judge Sotomayor unanimously.
I look forward to the next few days of hearings, and to Judge Sotomayor's confirmation.
Statement by Sen. Benjamin Cardin, Democrat of Maryland:
I am honored to represent the people of Maryland in the U.S. Senate, and to serve on the Judiciary Committee, as we consider one of our most important responsibilities – whether we should recommend to the full Senate the confirmation of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States.
The next term of the Supreme Court that begins in October is likely to consider fundamental issues that will impact the lives of all Americans. In recent years, there have been many important cases decided by the Supreme Court by a 5-4 vote. Each Justice can play a critical role in forming the needed consensus in our nation's highest court. A new Justice could – and very well may -- have a profound impact on the direction of the court.
Supreme Court decisions affect each and every person in our nation. I think of my own family history. My grandparents came to America more than 100 years ago. I am convinced that they came to America not only for greater economic opportunities, but because of the ideals expressed in our Constitution, especially the First Amendment guaranteeing religious freedom.
My grandparents wanted their children to grow up in a country where they would be able to practice their Jewish faith and fully participate in their community and government. My father, one of their sons, became a lawyer, state legislator, circuit court judge and President of his synagogue. And now his son serves in the U.S. Senate.
While our Founding Fathers made freedom of religion a priority, equal protection for all races took longer to achieve. I attended Liberty School No. 64, a public elementary school in Baltimore City. It was part of a segregated public school system that – under the law – denied every student in Baltimore the opportunity to learn in a classroom that represented the diversity of our community.
I remember with great sadness how discrimination was not only condoned but, more often than not, actually encouraged against Blacks, Jews, Catholics, and other minorities in the community. There were neighborhoods that my parents warned me to avoid for fear of my safety because I was Jewish. The local movie theater denied admission to African Americans.
Community swimming pools had signs that said "No Jews, No Blacks Allowed." Even Baltimore's amusement parks and sports clubs were segregated by race. Then came Brown vs. Board of Education and, suddenly, my universe and community were changed forever.
The decision itself moved our nation forward by correcting grievous wrongs that were built into the law. It also brought to the forefront of our national consciousness a great future jurist from Baltimore – Thurgood Marshall. Marshall had been denied admission to the University of Maryland Law School due to the color of his skin but went on to represent the plaintiff in the 1954 landmark Brown vs. Board of Education. And in 1967, it was Marshall – the grandson of a slave – who was appointed by President Lyndon Johnson as the first African American to serve on the Supreme Court.
The nine justices of the United States Supreme Court have the tremendous responsibility of safeguarding the framers' intent and the guiding values of our Constitution while ensuring the protections and rights found in that very Constitution are applied to and relevant to the issues of the day.
At times, the Supreme Court has and should look beyond popular sentiment to preserve these basic principles and the rule of law. The next justice, who will fill Justice Souter's place on the court, will be an important voice on these fundamental issues.
It is my belief that the Constitution and Bill of Rights were created to be living documents that stand together as the foundation for the rule of law in our nation. Our history reflects this. When the Constitution was written, African Americans were considered property and counted only as three-fifths of a person.
Non-whites and women were not allowed to vote. Individuals were restricted by race as to whom they could marry. Decisions by the Supreme Court undeniably have moved our country forward, continuing the progression of Constitutional protections that have changed our Nation for the better.
Before the Court ruled in Brown vs. Board of Education that "separate was not equal," the law permitted our society to have separate facilities for black and white students. Before the Court ruled in Loving vs. Virginia, a state could prohibit persons from marrying based on race.
Before the Court ruled in Roe vs. Wade, women had no constitutional implied right to privacy. These are the difficult questions that have come before the Court, and that the Framers could not have anticipated. New challenges will continue to arise but the basic framework of protections remains.
I want to complement President Obama in forwarding to the U.S. Senate a nominee, Judge Sonia Sotomayor, who is well qualified for our consideration. Her well-rounded background, including extensive experiences as a prosecutor, trial judge and appellate judge, will prove a valuable addition to our nation's highest court.
As a relatively new member of the Senate Judiciary Committee, as I prepared for this week, I considered a few key standards that I apply to all judicial nominations. First, I believe nominees must have an appreciation for the Constitution and the protections it provides to each and every American.
She (or he) must embrace a judicial philosophy that reflects mainstream American values, not narrow ideological interests. They should have a strong passion to continue the Court's advances in Civil Rights. There is a careful balance to be found here: our next Justice should advance the protections found in our Constitution, but not disregard important precedent that has made our society stronger by embracing our civil liberties. I believe judicial nominees also must demonstrate a respect for the rights and responsibilities of each branch of government.
These criteria allow me to evaluate a particular judge and whether she or he might place their personal philosophy ahead of the responsibility of the office. The First Congress enacted the Judiciary Act of 1789, which requires judges to swear or affirm that they will "administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States, so help me God."
As this Committee begins considering the nomination of Sonia Sotomayor, I want to quote Justice Thurgood Marshall, who said, "None of us got where we are solely by pulling ourselves up by our bootstraps." Judge Sotomayor is a perfect example of how family, hard work, supportive professors and mentors, and opportunity can all come together to create a real American success story.
She was born in New York, to a Puerto Rican family, and grew up in a public housing project in the South Bronx. Her mother was a nurse and her father was a factory worker with a third-grade education. She was taught early in life that education is the key to success, and her strong work ethic enabled her to excel in school and graduate valedictorian of her high school.
She attended Princeton University, graduating cum laude and Phi Beta Kappa, and she received the highest honor Princeton awards to an undergraduate. At Yale Law School, she was editor of the Law Review, where she was known to stand up for herself and not to be intimidated by anyone.
Nominated by both Democratic and Republican presidents, for 17 years she has been a distinguished jurist and now has more federal judicial experience than any Supreme Court nominee in the last hundred years.
At this time, I also want to recognize Justice David Souter; the justice whose vacancy Judge Sotomayor has been nominated to fill. His jurisprudence is rightly characterized as thoughtful and independent, crafted to keep faith with the requirements of justice and the duties of the judiciary. I thank him for his work.
This week's hearings are essential. With some understanding of the context of Judge Sotomayor's life and the role that she potentially is about to fill on the Supreme Court, I believe it is particularly important during this confirmation hearing to question Judge Sotomayor on the guiding principles she would use on reaching decisions. For example, it is important for me to understand her interpretation of "established precedent" on protecting individual Constitutional rights. I believe it would be wrong for Supreme Court Justices to turn their back on landmark Court precedents protecting individual Constitutional rights.
It is likely that the Supreme Court will consider important protections in our Constitution for women, our environment and consumers, as well as voting rights, privacy, and the separation of church and state, among others, in coming years. The Supreme Court also has recently been active in imposing limits on executive power. It will continue to deal with the Constitutional rights in our criminal justice system, the rights of terror detainees and the rights of non-citizens.
All of these issues test our Nation's – and the Supreme Court's – commitment to our founding principles and fundamental values. For this reason, we need to know how our nominee might approach these issues and analyzes these decisions.
I look forward to hearing from Judge Sotomayor on these issues and expect that she will share with this Committee, and the American People, her judicial views and her thoughts on the protections in our Constitution.
I want to thank Judge Sotomayor for her public service and readiness to take on this great responsibility for our Nation. I also wish to thank her family for their clear support and sacrifice that has brought us to this hearing today.
Statement by Sen. Dianne Feinstein, Democrat of California:
Thank you very much, Mr. Chairman. Good morning, Judge Sotomayor. I want to congratulate you on your nomination and I also want to start out with a couple of personal words.
Your nomination I view with a great sense of personal pride. You are indeed a very special woman. You have overcome adversity and disadvantage. You have grown in strength and determination, and you have achieved respect and admiration for what has been a brilliant legal and judicial career.
If confirmed, you will join the Supreme Court with more federal judicial experience than any justice in the past 100 years and you bring with you 29.5 years of very legal experience to the court. By this standard, you are well qualified.
In your 11 years as a federal appellate court judge, you've participated in 3,000 appeals and authored roughly 400 published opinions. In your six years on the federal district court, you were the trial judge in approximately 450 cases.
For 4.5 years, you prosecuted crimes as an assistant D.A. in you spent eight years litigating business cases at a New York law firm.
What is unique about this broad experience is that you have seen the law truly from all sides. On the district court, you saw firsthand the actual impact of the law on people before you in both civil and criminal cases. You considered, wrote and joined thousands of opinions clarifying the law and reviewing district court decisions in your time on the appellate court.
Your 11 years there were a rigorous training ground for the Supreme Court. It is very unique for a judge to have both levels of federal court experience and you will be the only one on the current Supreme Court with this background.
You were a prosecutor who tried murder, robbery and child pornography cases. So you know firsthand the impact of crime on a major metropolis and you have administered justice in the close and personal forum of a trial court.
You also possess a wealth of knowledge in the complicated arena of business law, with its contract disputes, patent and copyright issues, and antitrust questions. And as an associate and partner at a private law firm, you have tried complex civil cases in the areas of real estate, banking and contracts law, as well as intellectual property, which I'm told was a specialty of yours.
So you bring a deep sand broad experience in the law to the Supreme Court. In my nearly 17 years on this committee, I have held certain qualities that a Supreme Court nominee must possess. First, broad and relevant experience, you satisfy that. Second, a strong and deep knowledge of the law and the Constitution, you satisfy that. Third, a firm commitment to follow the law, and you have and all of the statistics indicate that.
Next, a judicial temperament and integrity, and you have both of those. And finally, mainstream legal reasoning, and there is everything in your record..
PROTESTER: Senator, what about (OFF-MIKE).
FEINSTEIN: ... to indicate...(CROSSTALK)
LEAHY: Senator? The police will remove that man. (CROSSTALK)
LEAHY: Let me make very clear there will be no outbursts allowed in this committee either for or against the nominee, either for or against any position that Senator Sessions or I or any other Senator will have.
This is a hearing of the United States Senate and we will have order and we will have decorum.
There are people who want to have this hearing. In fairness to Judge Sotomayor, there will be -- it will be done orderly and I will direct the police to remove anybody who does any kind of an outburst either for or against the nominee, either for or against any member of this committee.
SESSIONS: Thank you, Mr. Chairman, for your firm words. I support you 100 percent.
LEAHY: Thank you. And the -- the record will show my comments outside of Senator Feinstein's comments, and I yield back to her.
FEINSTEIN: Thank you. Thank you, Mr. Chairman. Bottom line, I believe your record indicates that you possess all of these qualities.
Over the past years of my service on this committee, I've found it increasingly difficult to know, from answers to questions we ask from this dais, how a nominee will actually act as a Supreme Court justice, because answers here are often indirect and increasingly couched in euphemistic phrases.
For example, nominees have often responded to specific questions with phrases like "I have an open mind" or "Yes, that is precedent entitled to respect" or "I have no quarrel with that."
f course, these phrases obfuscate and prevent a clear understanding of where a nominee really stands. For example, several past nominees have been asked about the Casey decision, where the court held that the government cannot restrict access to abortions that are medically necessary to preserve a woman's health.
Some nominees responded by assuring that Roe and Casey were precedents of the court entitled to great respect.
And in one of the hearings, through questioning by Senator Specter, this line of cases was acknowledged to have created a super-precedent. But once on the court, the same nominees voted to overturn the key holding in Casey that laws restricting a woman's medical care must contain an exception to protect her health.
Their decision did not comport with the answers they gave here and it disregarded decisus and the precedents established in Roe, in Ashcroft, in Casey, in Thornburg, in Carhart 1, and in Iope (ph).
So super-precedent went out the window and women lost a fundamental constitutional protection that had existed for 36 years.
Also, it showed me that Supreme Court justices are much more than umpires calling balls and strikes and that the word "activist" is often used only to describe opinions of one side.
FEINSTEIN: As a matter of fact, in just two years, these same nominees have either disregarded or overturned precedent in at least eight other cases; a case involving assignments to attain racial diversity in school assignments, a case overruling 70 years of precedent on the Second Amendment and federal gun control law, a case which increased the burden of proof on older workers to prove age discrimination, a case overturning a 1911 decision to allow manufacturers to set minimum prices for their products, a case overruling two cases from the 1960s on time limits for filing criminal appeals, a case reversing precedent on the Sixth Amendment right to counsel, a case overturning a prior ruling on regulation of issue ads relating to political campaigns, and a case regarding prior law and creating a new standard that limits when cities can replace civil service exams that they may believe have been -- have discriminated against a group of workers.
So I do not believe that Supreme Court justices are merely umpires calling balls and strikes. Rather, I believe that they make the decisions of individuals who bring to the Court their own experiences and philosophies.
Judge Sotomayor, I believe, you are a warm and intelligent woman. I believe you are well studied and experienced in the law with some 17 years of federal court experience involving 3,000 appeals and 450 trial cases. So I believe you, too, will bring your experiences and philosophy to this highest court. And I believe that will do only one thing and that is strengthen this high institution of our great country.
Thank you, Mr. Chairman.
Statement by Sen. John Cornyn, Republican of Texas:
Judge Sotomayor, let me join my colleagues in extending a warm welcome to you and your family today. You have had a distinguished career as a lawyer and a judge. I enjoyed sitting down with you soon after you were nominated. And I am pleased to be able to welcome you to the Senate – and to give you an opportunity to introduce yourself to the American people.
In the history of the United States, there have been only 110 people who served on the Supreme Court. We should all stop and think about that. In more than 200 years, we have had only 110 Justices.
That means each and every Supreme Court nomination is a historic moment for our Nation. Each Supreme Court nomination is a time for a national conversation about the Supreme Court and its role. We have to ask ourselves: What is the proper direction of the Supreme Court?
To answer that, we need to recall our history. The Framers created a written Constitution to make sure our constitutional rights were fixed and certain. The state conventions who represented "We the People" looked at that written Constitution and decided to adopt it. The idea was that our rights would be written down for all to see.
This framework gave judges a role that is both unique in our form of government, and important. The role of judges was intended to be modest – that is, self-restrained and limited. Judges were not free to invent new rights as they saw fit. They were supposed to enforce what the Constitution's text says to enforce – and to leave the rest to the elected branches and to "We the People."
Over time, however, the Supreme Court has often veered off the course established by the Framers. First, the Supreme Court has invented new rights not clearly rooted in any constitutional text. For example, the Supreme Court has micromanaged the death penalty, creating new rights spun from whole cloth. It has announced constitutional rules governing everything from punitive damages to sexual activity. It has relied on international law that the People never adopted.
The Supreme Court has even taken on the job of defining the rules for the game of golf. (If you're curious, the case is PGA Tour v. Martin from 2001). Some people call this "judicial activism." Whatever you call it, it's pretty far from enforcing the written Constitution that the Framers proposed and the people enacted.
As the Supreme Court has invented new constitutional rights – it has often neglected the old ones. This flip side is troubling, too. Many of the original important safeguards on government power have been watered down or even ignored.
Express constitutional limitations like the Takings Clause of the Fifth Amendment, the Commerce Clause limitations in Article I, and the Second Amendment's right to keep and bear arms have been artificially limited, almost like they were written out of the Constitution. Judges just haven't enforced them like the people expected them to.
So the Supreme Court has veered off course in multiple directions. The important question today is, where should the Supreme Court go from here? I think there are two choices.
First, the Supreme Court could try to get us back on course. That is, the Court could renew its respect for our original plan of government – and return us slowly but surely to the written Constitution. The Supreme Court's recent Second Amendment decision in DC v. Heller is a good example of this.
Second, the Court could veer off course once again – and follow its own star. It could continue to depart from the written Constitution. It could further erode the established rights we have in the text of the Constitution. And it could invent even more brand new rights not rooted in the text and not agreed to by the American people.
Judge Sotomayor, the purpose of this hearing is to determine which path you would take if confirmed to the Supreme Court. Would you vote to return to the written Constitution and the laws written by the elected representatives of the people? Or would you take us even further away from the written Constitution and laws legitimated by the consent of the governed?
To help the American people understand which of these paths you would take, we need to know more about your record. We need to know more about the legal reasoning behind some of your opinions on the Second Circuit. And we need to know more about some of your public statements related to your judicial philosophy.
In looking at your opinions on the Second Circuit, we recognize that lower court judges are supposed to be bound by Supreme Court and circuit precedent. To borrow a football analogy, a lower court judge is like the quarterback who executes the plays – not the coach who calls the plays.
That means many of your cases don't tell us much about your judicial philosophy. But a few of your opinions do raise questions – because they suggest the kinds of plays you'd call if you were promoted to the coaching staff. These opinions raise the question: would your steer the Court in the wrong direction – by limiting the rights that generations of Americans have regarded as fundamental?
So Americans need to know whether you would limit the scope of the Second Amendment – and whether we can count on you to uphold one of the fundamental liberties enshrined in our Bill of Rights.
We need to know whether you would limit the scope of the Fifth Amendment – and whether you would expand the definition of "public use" by which government can take private property from one person and give it to another person.
And we need to know whether you would uphold the plain language of the Equal Protection Clause of the 14th Amendment promising that "No State shall ? deny to any person within its jurisdiction the equal protection of the laws."
Judge Sotomayor: some of your opinions suggest that you would limit some of our basic constitutional rights – and some of your public statements suggest that you would invent rights that do not exist in our written Constitution.
For example, in a 2001 speech, you argued that there is no objectivity in law, but only what you called "a series of perspectives" rooted in the life experience of each judge. In a 2006 speech, you said that judges can and even must change the law – even introducing what you called "radical change" – to meet the needs of an "evolving" society. And in a 2009 speech, you endorsed the use of foreign law in interpreting the Constitution on the grounds that it gives judges "good ideas" that "get their creative juices flowing."
Judge Sotomayor: we thank you for your candor in these speeches. Not every judicial nominee is so open about their judicial philosophy. Yet many Americans wonder what these various statements mean – and what you're trying to get at with these remarks. And many more wonder whether you are the kind of judge who will uphold the written Constitution – or the kind of judge who will veer us even further off course –and towards new rights invented by judges rather than ratified by the people.
Judge Sotomayor: These are some my concerns. I assure you that you will have every opportunity to address these concerns – and make clear which path you would take if you are confirmed to the Supreme Court. I welcome you to these hearings and I look forward to your testimony.
Statement by Sheldon Whitehouse, Democrat of Rhode Island:
Thank you, Mr. Chairman. Judge Sotomayor, welcome to you and your family. Your nomination caps what already has been a remarkable legal career. I join many, many Americans who feel proud to see you here today. It is a great country, and you represent its greatest attributes.
Your record leaves no doubt that you have the intellectual ability to serve as a Justice. From meeting with you and seeing the outpouring of support for your nomination, both from those who know you personally and from professional organizations with which you've worked, I see your collegiality and demeanor as significant attributes in your favor.
I appreciate your years as a prosecutor, serving in the trenches of law enforcement. I am looking forward to learning more about the experience and judgment you appear poised to bring to the Supreme Court.
In the last two and a half months, my Republican colleagues have talked a great deal about judicial modesty and restraint. Fair enough to a point, but that point comes when these words become slogans, not real critiques of your record. Indeed, these calls for restraint and modesty, and complaints about "activist" judges, are often codewords, seeking a particular kind of judge who will deliver a particular set of political outcomes.
It is fair to inquire into a nominee's judicial philosophy, and we will have serious and fair inquiry. But the pretence that Republican nominees embody modesty and restraint, or that Democratic nominees must be activists, runs counter to recent history.
I particularly reject the analogy of a judge to an "umpire" who merely calls "balls and strikes." If judging were that mechanical, we wouldn't need nine Supreme Court Justices. The task of an appellate judge, particularly on a court of final appeal, is often to define the strike zone, within a matrix of Constitutional principle, legislative intent, and statutory construction.
The "umpire" analogy is belied by Chief Justice Roberts, though he cast himself as an "umpire" during his confirmation hearings. Jeffrey Toobin, a well-respected legal commentator, has recently reported that "[i]n every major case since he became the nation's seventeenth Chief Justice,
Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff." Some umpire. And is it a coincidence that this pattern, to continue Toobin's quote, "has served the interests, and reflected the values of the contemporary Republican party"? Some coincidence.
For all the talk of "modesty" and "restraint," the right wing Justices of the Court have a striking record of ignoring precedent, overturning congressional statutes, limiting constitutional protections, and discovering new constitutional rights: the infamous Ledbetter decision, for instance; the Louisville and Seattle integration cases, for example; the first limitation on Roe v. Wade that outright disregards the woman's health and safety; and the DC Heller decision, discovering a constitutional right to own guns that the Court had not previously noticed in 220 years.
Over and over, news reporting discusses "fundamental changes in the law" wrought by the Roberts Court's right wing flank. The Roberts Court has not lived up to the promises of modesty or humility made when President Bush nominated Justices Roberts and Alito. Some "balls and strikes."
So, Judge Sotomayor, I'd like to avoid codewords, and look for a simple pledge: that you will decide cases on the law and the facts; that you will respect the role of Congress as representatives of the American people; that you will not prejudge any case, but listen to every party that comes before you; and that you will respect precedent and limit yourself to the issues that the Court must decide; in short, that you will use the broad discretion of a Supreme Court Justice wisely and in keeping with the Constitution.
Let me emphasize that broad discretion. As Justice Stevens has said, "the work of federal judges from the days of John Marshall to the present, like the work of the English common-law judges, sometimes requires the exercise of judgment – a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision."
Look at our history. America's common law inheritance is the accretion over generations of individual exercises of judgment. Our Constitution is a great document that John Marshall noted leaves "the minor ingredients" to judgment, to be deduced by our Justices from the document's great principles. The liberties in our Constitution have their boundaries defined, in the gray and overlapping areas, by informed judgment. None of this is "balls and strikes."
It has been a truism since Marbury v. Madison that courts have the authority to "say what the law is," even to invalidate statutes enacted by the elected branches of government when they conflict with the Constitution. So the issue is not whether you have a wide field of discretion: you will. As Justice Cardozo reminds us, you are not free to act as "a knight-errant, roaming at will in pursuit of [your] own ideal of beauty or of goodness," yet, he concluded, "[w]ide enough in all conscience is the field of discretion that remains."
The question for this hearing is: will you bring good judgment to that wide field? Will you understand, and care, how your decisions affect the lives of Americans? Will you use your broad discretion to advance the promises of liberty and justice made by the Constitution?
I believe that your diverse life experience, your broad professional background, your expertise as a judge at each level of the federal system, in short your accrued wisdom, will enrich your judgment as a Supreme Court justice. Justice Alito told this Committee that he brings his perspective as the grandson of immigrants to decisions in that area of the law. I am glad he does. As Oliver Wendell Holmes, Jr. famously said, the life of the law has not been logic, it has been experience.
If your wide experience brings life to a sense of the difficult circumstances faced by the less powerful among us:
the woman being shunted around the bank from voicemail to voicemail as she tries to save her home from foreclosure;
the family struggling to get by in the neighborhood the police only come to with raid jackets on;
the couple up late at the kitchen table after the kids are in bed sweating out how to make ends meet that month;
the man who believes a little differently, or looks a little different, or thinks things should be different;
the voice no one listens to when the elected branches are deafened by monied interests;
if you have empathy for those people in this job, you are doing nothing wrong. It is far better to listen for those unheard voices, and to seek to understand their points of view, than to ignore them in favor of a particular ideology, or corporation, or just the status quo.
The Founding Fathers set up the American judiciary as a check on the excesses of the elected branches, and as a refuge when those branches are corrupted, or consumed by passing passions.
Courts were designed to be our guardians against what Hamilton in the Federalist Papers called "those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people . . . and which . . . have a tendency . . . to occasion ? serious oppressions of the minor party in the community."
In present circumstances, those oppressions tend to fall on the poor and powerless, those without voice or influence. But as Hamilton noted, "[c]onsiderate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts: as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day."
A little skepticism of the status quo, an ear for challenges to the prevailing power structure, an extra effort to hear the side of a party who is out-spent and out-gunned—there is no shame in that for a judge. It is exactly what the Founders intended in an American judge.
The courtroom can be the only sanctuary for the little guy when the forces of society are arrayed against him, when proper opinion and elected officialdom will lend him no ear. This is a correct, fitting, and intended function of the judiciary in our constitutional structure, and the empathy President Obama saw in you has a constitutionally proper place in that structure.
If everyone on the Court always voted for the prosecution against the defendant, for the corporation against the plaintiffs, and for the government against the condemned, a vital spark of American democracy would be extinguished. A courtroom is supposed to be a place where the status quo can be disrupted, even upended, when the Constitution or laws may require; where the comfortable can be afflicted and the afflicted find some comfort, all under the shelter of the law.
It is worth remembering that judges of the United States have shown great courage over the years, courage verging on heroism, in providing that sanctuary of careful attention, what James Bryce called "the cool dry atmosphere of judicial determination," amidst the inflamed passions or invested powers of the day.
Judge Sotomayor, I believe your broad and balanced background and empathy prepare you well for this constitutional and proper judicial role. So again, I join my colleagues in welcoming you to the Committee and I look forward to your testimony.
Statement by Sen. Lindsey Graham, Republican of South Carolina:
Well, thank you. I've learned something already, the Schumer conservative standard. And we'll -- we'll see how that works.
No Republican would have chosen you, Judge; that's just the way it is. We would have picked Miguel Estrada. We would all have voted for him. And I don't think anybody on that side would have voted for Judge Estrada, who is a Honduran immigrant, who came to this country as a teenager, graduated from Columbia magna cum laude, Harvard, 1986, magna cum laude and Law Review editor, a stellar background like yours, and that's just the way it was.
He never had a chance to have this hearing. He was nominated by President Bush to the D.C. Circuit Court of Appeals, which I think most people agree is probably the second highest court in the land, and he never had this day.
So the Hispanic element of this hearing's important, but I don't want it to be lost that this is mostly about liberal and conservative politics more than it is anything else.
And having said that, there are some of my colleagues on the other side that voted for Judge Roberts and Alito, knowing they would not have chosen either one of those, and I will remember that.
Now, unless you have a complete meltdown, you're going to get confirmed. (LAUGHTER)
And I don't think you will, but, you know, the drama that's being created here is -- is -- is interesting. And -- and my Republican colleagues who vote against you I assure you could vote for a Hispanic nominee. They just feel unnerved by your speeches and by some of the things that you've said and some of your cases.
Now, having said that, I don't know what I'm going to do yet, but I do believe that you, as an advocate with a Puerto Rican defense legal fund, that you took on some cases that I would have loved to have been on the other side, that your organization advocated taxpayer-funded abortion and said in a brief that to deny a poor black woman Medicaid funding for an abortion was equivalent to the Dred Scott case.
Now, that's a pretty extreme thing to say, but I think it was heartfelt.
I would look at it the other way. To take my taxpayer dollars and provide an abortion to -- to pay for abortion I disagree with is pretty extreme. So there's two ways of looking at that.
You were a prosecutor, but your organization argued for the repeal of the death penalty because it was unfairly applied and discriminatory against minorities.
Your organization argued for quotas when it came to hiring. I just want my colleagues to understand that there can be no more liberal group, in my opinion, than the Puerto Rican defense legal fund when it came to advocacy.
And what I hope is, if we ever get a conservative president and they nominate someone who has an equal passion on the other side, that we will not forget this moment, that you could be the NRA general counsel and still be a good lawyer.
My point is, I'm not going to hold it against you or the organization for advocating (inaudible) from which I disagree. That makes America a special place. I would have loved to have been in those cases on the other side. I hope that wouldn't have disqualified me.
Now, when it comes to your speeches, that is the most troubling thing to me, because that gives us an indication, when you're able to get outside the courtroom without the robe, an insight into how you think life works, and this wise Latino comment has been talked about a lot.
But I can just tell you one thing: If I had said anything remotely like that, my career would have been over. That's true of most people here. And you need to understand that, and I look forward to talking with you about that comment.
Does that mean that I think that you're racist? You've been called some pretty bad things. No. It just bothers me when somebody wearing a robe takes the robe off and says that their experience makes them better than someone else. I think your experience can add a lot to the court, but I don't think it makes you better than anyone else.
Now, when I look at your record, there is a lot of truth to what Senator Schumer said. I don't think you've taken the opportunity on the circuit to -- to be a cause-driven judge. But what we're talking about here today is, what will you do when it comes to making policy?
And I'm pretty well convinced I know what you're going to do. You're probably going to decide cases differently than I would. So that brings me back to, what am I supposed to do knowing that?
I don't think anybody here worked harder for Senator McCain than I did, but we lost, and President Obama won. And that ought to matter. It does to me.
Now, what standard do I apply? I can assure you that if I applied Senator Obama's standard to your nomination, you -- I wouldn't vote for you, because the standard that he articulated would make it impossible for anybody with my view of the law and society to vote for someone with your activism and background when it comes to lawyering and judging.
And he said something about the 5 percent of the cases that we're all driven by. He said something to the effect, in those difficult cases, the critical ingredient is applied by what is in the judge's heart. Well, I have no way of knowing what is in your heart any more than you have knowing what's in my heart. So that to me is an absurd, dangerous standard.
And maybe something good could come out of these hearings. If we start applying that to nominees, it will ruin the judiciary. I have no idea what's in your heart anymore than you have an idea what's in my heart, and I think it takes us down a very dangerous road as a country when we start doing that.
Now, there was a time when someone like Scalia and Ginsberg got 95-plus votes. If you were confused about where Scalia was coming down as a judge, you shouldn't be voting, anymore than if you were a mystery about what Justice Ginsberg was going to in these 5 percent of the cases. That is no mystery.
There's some aspect of you that I'm not sure about that gives me hope that you may not go down the -- Senator Feingold's road when it comes to the war on terror, and we'll talk about that later on.
But generally speaking, the president has nominated someone of good character, someone who has lived a very full and fruitful life, who is passionate. From day one, from the time you got a chance to showcase who you are, you've stood out and you've stood up and you've been a strong advocate and you will speak your mind.
And the one thing I'm worried about is that if we keep doing what we're doing, we're going to deter people from speaking their mind. I don't want milk toast judges. I want you to be able to speak your mind, but you've got to understand that when you gave these speeches as a sitting judge, that was disturbing to me.
I want lawyers who believe in something and are willing to fight for it and I want the young lawyers of this country feeling like there's certain clients they can't represent because when they come before the Senate, it will be the end of their career.
So I don't know how I'm going to vote, but my inclination is that elections matter. And I'm not going to be upset with any of my colleagues who find that you're a bridge too far, because in many ways, what you've done in your legal career and the speeches you've made give me great insight as to whether -- where you'll come out on these 5 percent of the cases.
But President Obama won the election and I will respect that. But when he was here, he set in motion a standard, I thought, that was more about seeking the presidency than being fair to the nominee.
When he said, "The critical ingredient is supplied by what is in the judge's heart," translated, that means, "I'm not going to vote against my base, because I'm running for president."
We've got a chance to start over. I hope we'll take that chance. And you will be asked hard questions and I think you expect that, and my belief is that you will do well, because whether or not I agree with you on the big theme to live is not important.
The question for me is have you earned the right to be here and if I give you this robe to put you on the Supreme Court, do I believe, at the end of the day, that you will do what you think is best, that you have courage, and that you will be fair. Come Thursday, I think I'll know more about that. Good luck.
Statement by Jon Kyl, Republican of Arizona:
Many of Judge Sotomayor's public statements suggest that she may, indeed, allow, and even embrace, decision-making based on her biases and prejudices"
I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court. In fulfilling our advise and consent role, of course, we must evaluate Judge Sotomayor's fitness to serve on the merits, not on the basis of her ethnicity.
With a background that creates a prima facie case for confirmation, the primary question I believe Judge Sotomayor must address in this hearing is her understanding of the role of an appellate judge. From what she has said, she appears to believe that her role is not constrained to objectively decide who wins based on the weight of the law, but who, in her opinion, should win. The factors that will influence her decisions apparently include her 'gender and Latina heritage' and foreign legal concepts that get her 'creative juices going.'
What is the traditional basis for judging in America? For 220 years, presidents and the Senate have focused on appointing and confirming judges and justices who are committed to putting aside their biases and prejudices and applying law to fairly and impartially resolve disputes between parties.
This principle is universally recognized and shared by judges across the ideological spectrum. For instance, Judge Richard Paez of the Ninth Circuit – with whom I disagree on a number of issues –explained this in the same venue where, less than 24 hours earlier, Judge Sotomayor made her now-famous remarks about a 'wise Latina woman' making better decisions than other judges.
Judge Paez described the instructions that he gave to jurors who were about to hear a case. 'As jurors,' he said, 'recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot—if you cannot set aside those prejudices, biases and passions—then you should not sit on the case.'
And then Judge Paez said: 'The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich.
The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in the office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that—I am viewed as a Latino judge—as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.'
What Judge Paez said has been the standard for 220 years—it correctly describes the fundamental and proper role for a judge.
Unfortunately, a very important person has decided it is time for change—time for a new kind of judge; one who will apply a different standard of judging, including employment of his or her empathy for one of the parties to the dispute. That person is President Obama; and the question before us is whether his first nominee to the Supreme Court follows his new model of judging or the traditional model articulated by Judge Paez.
President Obama, in opposing the nomination of Chief Justice Roberts, said that 'while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court . . . —what matters on the Supreme Court is those 5 percent of cases that are truly difficult. . . . In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.'
How does President Obama propose judges deal with these hard cases? Does he want them to use judicial precedent, canons of construction, and other accepted tools of interpretation that judges have used for centuries? No, President Obama says that 'in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.'
Of course, every person should have empathy, and in certain situations, such as sentencing, it may not be wrong for judges to be empathetic. The problem arises when empathy and other biases or prejudices that are 'in the judge's heart' become 'the critical ingredient' to deciding cases. As Judge Paez explained, a judge's prejudices, biases, and passions should not be embraced—they must be 'set aside' so that a judge can render an impartial decision as required by the judicial oath and as parties before the court expect.
I respectfully submit that President Obama is simply outside the mainstream in his statements about how judges should decide cases. I practiced law for almost 20 years before every level of state and federal court, including the U.S. Supreme Court, and never once did I hear a lawyer argue that he had no legal basis to sustain his client's position, so that he had to ask the judge to go with his 'gut' or 'heart.' If judges routinely started ruling on the basis of their personal feelings, however well-intentioned, the entire legitimacy of the judicial system would be jeopardized.
The question for this committee is whether Judge Sotomayor agrees with President Obama's theory of judging or whether she will faithfully interpret the laws and Constitution and take seriously the oath of her prospective office.
Many of Judge Sotomayor's public statements suggest that she may, indeed, allow, and even embrace, decision-making based on her biases and prejudices.
The 'wise Latina woman' quote, which I referred to earlier, suggests that Judge Sotomayor endorses the view that a judge should allow her gender-, ethnic-, and experience-based biases to guide her when rendering judicial opinions. This is in stark contrast to Judge Paez's view that these factors should be 'set aside.'
In the same lecture, Judge Sotomayor posits that 'there is no objective stance but only a series of perspectives—no neutrality, no escape from choice in judging' and claims that '[t]he aspiration to impartiality is just that—it's an aspiration because it denies the fact that we are by our experiences making different choices than others.' No neutrality, no impartiality in judging? Yet, isn't that what the judicial oath explicitly requires?
And according to Judge Sotomayor, 'Personal experiences affect the facts that judges choose to see. . . . I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.'
Judge Sotomayor clearly rejected the notion that judges should strive for an impartial brand of justice. She has already 'accepted' that her gender and Latina heritage will affect the outcome of her cases.
This is a serious issue, and it's not the only indication that Judge Sotomayor has an expansive view of what a judge may appropriately consider. In a speech to the Puerto Rican ACLU, Judge Sotomayor endorsed the idea that American judges should use 'good ideas' found in foreign law so that America does not 'lose influence in the world.'
As I've explained on the floor of the Senate, the laws and practices of foreign nations are simply irrelevant to interpreting the will of the American people as expressed through our Constitution.
Additionally, the vast expanse of foreign judicial opinions and practices from which one might draw simply gives activist judges cover for promoting their personal preferences instead of the law. You can, therefore, understand my concern when I hear Judge Sotomayor say that unless judges take it upon themselves to borrow ideas from foreign jurisdictions, America is 'going to lose influence in the world.' That's not a judge's concern.
Some people will suggest that we shouldn't read too much into Judge Sotomayor's speeches and articles—that the focus should instead be on her judicial decisions. I agree that her judicial record is an important component of our evaluation, and I look forward to hearing why, for instance, the Supreme Court has reversed or vacated 80 percent of her opinions that have reached that body, by a total vote count of 52 to 19.
But we cannot simply brush aside her extrajudicial statements. Until now, Judge Sotomayor has been operating under the restraining influence of a higher authority—the Supreme Court.
If confirmed, there will be no such restraint that would prevent her from—to paraphrase President Obama—deciding cases based on her heart-felt views. Before we can faithfully discharge our duty to advise and consent, we must be confident that Judge Sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based upon the rule of law. \
Statement by Sen. Tom Coburn, Republican of Oklahoma:
Judge, welcome. It is truly an honor to have you before us. It is -- says something remarkable about our country that you're here. And I assure you, during your time before this committee, you will be treated with the utmost respect and kindness.
It will not distinguish, however, that we will be thorough as we probe the areas where we have concerns.
There is no question that you have a stellar resume. And if resumes and judicial history were all that we went by, we wouldn't be needing to have this hearing. But, in fact, other things add into that.
Equally important to us providing consent on this nomination is our determination that you have a judicial philosophy that reflects what our founders intended. And there's great division about what that means.
I also wanted to note that I thought this was your hearing, not Judge Roberts' hearing, and that the partial birth abortion ban was a law passed by the United States Congress and was upheld by the Supreme Court. So I have a different point of view on that.
As I expressed to you in our meeting, I think our nation's at a critical point. I think we're starting to see cracks. And the reason I say that is because I think the glue that binds our nation together isn't our political philosophies. We have very different political philosophies.
The thing that binds us together is an innate trust that you can have fair, impartial judgment in this country, that we better than any other nation when we've been wrong have corrected the wrongs of our founding, but we have instilled a confidence that, in fact, when you come before, there is blind justice, and that, in fact, allows us the ability to overlook other areas where we are not so good, because it instills in us the confidence of an opportunity to have a fair hearing and a just outcome.
I am concerned -- and as many of my colleagues -- with some of your statements. And I don't know if the statements were made to be provocative or if they're truly heartfelt in what you have said. But I know that some of those concerns will guide my questioning when we come to the questioning period.
And you were very straightforward with me in our meeting, and my hope is that you will be there, as well.
I'm deeply concerned by your assertion that the law is uncertain. That goes completely against what I just said about the rule of law being the glue that binds us together. And your praise for an unpredictable system of justice, I think we want it to be predictable. We want it to be predictable in its fairness and the fact that how cases are viewed. And it shouldn't matter which judge you get; it should matter what the law is and the facts are.
And I'm worried that our Constitution may be seen to be malleable and evolving when I, as someone who comes from the heartland, seems to grasp and hold and the people that I represent from the state of Oklahoma seem to grasp and hold that there is a foundational document and there are statutes and occasionally treaties that should be the rule, rather than our opinions.
Other statement, such as the court of appeals is where policy is made, that is surprising to me. And as I look at our founders, the court is to be a check, not a policy-maker. Your assertion that ethnicity and gender will make someone a better judge, although I understand the feelings and emotions behind that, I'm not sure that that could be factually correct. Maybe a better judge than some, but not better judge than others.
There is no -- the other statement, "There is no objective stance, but only a series perspectives, no neutrality, no escape from choice in judging," what that implies -- the fact that it's subjective implies that it's not objective. And if we disregard objective consideration of facts, then all rulings are subjective and we lose the glue that binds us together as a nation.
Even more important is the -- your questioning of whether the application of impartiality in judging, including transcending personal sympathies and prejudices, is possible in most cases or is even desirable is extremely troubling to me.
You've taken the oath already twice and, if confirmed, will take it again. And I'm going to repeat it again. It's been said once this morning. Here's the oath: I do solemnly swear or affirm that I will administer justice without respect to persons and do equal right to the poor and to the rich, and will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and the laws of the United States, so help me God.
It doesn't reference foreign law anywhere. It doesn't reference whether or not we lose influence in the international community. We lost influence when we became a country in the international community to several countries, but the fact that did not impede us from establishing this great republic.
I think this oath succinctly captures the role of the judge and I'm concerned about some of your statements in regard to that. Your judicial philosophy might be, and I'm not saying it is, inconsistent with the impartial, neutral arbiter the oath describes.
With regard to your judicial philosophy, the burden of proof rests on you. But in this case, that burden has been exaggerated by some of your statements and also by some of President Obama's stated intent to nominate someone who is not impartial, but instead favors certain groups of people.
During the campaign, he promised to nominate someone who's got the heart and the empathy to recognize what it's like to be a young, teenaged mom. The implication is that our judges today don't have that.
Do you realize how astounding that is? The empathy to understand what it's like to be poor, to be African-American or gay or disabled or old. Most of our judges understand what it's like to be old.
Senator Obama referred to his empathy standard when he voted against Chief Justice Roberts. He stated, "The tough cases can only be determined on the basis of one's deepest values, one's core concerns, one broader perspective on how the world works and the depth and breadth of one's empathy."
I believe that standard is antithetical to the proper role of a judge. The American people expect our judges to treat all litigants equally, not to favor and not to enter the courtroom already prejudiced against one of the parties. That's why Lady Justice is always depicted blind and why Aristotle defined law as "reason free from passion."
We expect a judge to merely call balls and strikes? Maybe so, maybe not. But we certainly don't expect them to sympathize with one party over the other, and that's where empathy comes from.
Judge Sotomayor, you must prove to the Senate that you will adhere to the proper role of a judge and only base your opinions on the Constitution's statutes and, when appropriate, treaties. That's your oath. That's what the Constitution demands of you.
You must demonstrate that you will strictly interpret the Constitution and our laws and will not be swayed by your personal biases or your political preferences, which you're entitled to.
As Alexander Hamilton stated in Federalist Paper Number 78, the interpretation of the law is a proper and peculiar province of the courts. The Constitution, however, must be regarded by the judges as fundamental law. He further stated it was indispensable in the courts of justices that judges have an inflexible and uniform adherence to the rights of the Constitution.
A nominee who does not adhere to these standards necessarily rejects the role of a judge as dictated by the Constitution and should not be confirmed.
I look forward to a respectful and rigorous interchange with you during my time to question you. I have several questions that I hope you will be able to answer. I will try not to put you in a case where you have to answer a future opinion. I understand your desire in that regard, and I respect it. I thank you for being here, and I applaud your accomplishments. May God bless you.
Statement by Sen. Dick Durbin, Democrat of Illinois:
Thank you very much, Mr. Chairman. Judge Sotomayor, welcome to you and your family. These nomination hearings can be long and painful. But after surviving a broken ankle and individual meetings with 89 different U.S. senators in the past few weeks, you are certainly battle tested.
At the nomination hearing for Judge Ruth Bader Ginsberg in 1993, my friend, Senator Paul Simon of Illinois, asked the following question: You face a much harsher judge than this committee; that's the judgment of history. And that judgment is likely to revolve around the question did she restrict freedom or did she expand it.
I asked this question with respect to the nominations of Chief Justice Roberts, Justice Alito. And I think it's an important question of any court nominee, particularly, to the Supreme Court. The nine men and women on the Supreme Court serve lifetime appointments, and they resolve many of our most significant issues.
It's the Supreme Court that defines our personal right to privacy and decides the restrictions that are to be placed on the most personal aspects of our lives. The Court decides the rights of the victims of discrimination, immigrants, consumers. The nine justices decide whether Congress has the authority to pass laws to protect our civil rights and our environment.
They decide what checks will exist on the executive branch in war and in peace. Because these issues are so important, we need justices with intelligence, knowledge of the law, the proper judicial temperament, and a commitment to impartial justice. More than that, we need our Supreme Court justices to have an understanding of a real world and the impact their decisions will have on everyday people. We need justices whose wisdom...
LEAHY: The officer will remove the person. The officer will remove the person. We will stand -- the time will go -- as I've said before, and both Judge -- both Senator Sessions and I have said, you are guests of the Senate while you are here. Everybody is a guest of the Senate. Judge Sotomayor deserves respect, to be heard. These Senators deserve the respect of being heard.
No outburst will be allowed. It might interrupt the ability of the senators or of the judge, or, I might say, of our guests who are sitting here patiently listening to everything that's being said.
I thank the Capitol Police for responding as quickly and as rapidly, as professionally as they always do. Apologize to Senator Durbin for the interruption. I yield back to him.
DURBIN: Thank you, Mr. Chairman. More than that, we need our Supreme Court justices to have an understanding of the real world, the impact their decisions have on everyday people. We need justices whose wisdom comes from life, not just from law books.
Sadly, this important quality seems to be in short supply. The current Supreme Court has issued many decisions that I think represent a triumph of ideology over common sense.
When Chief Justice Roberts came before this committee in 2005, he famously said, "A Supreme Court justice is like an umpire, calling balls and strikes." We have observed, unfortunately, that it's a little hard to see home plate from right field. If being a Supreme Court justice were as easy as calling balls and strikes, we wouldn't see many five-and-four decisions in the court. But in the last year alone, 23 of the Supreme Court's 74 decisions were decided by a five- to-four vote.
The recent decision of Ledbetter v. Goodyear Tire & Rubber is a classic example of the Supreme Court putting activism over common sense. The question in that case was simple, fundamental - should women be paid the same as men for the same work? Lilly Ledbetter was a manager at a Goodyear Tire plant in Alabama. Worked there for 19 years, didn't learn until she was about to retire that her male colleagues in the same job were paid more.
She brought a discrimination lawsuit. The jury awarded her a verdict. The Supreme Court, in a five-four decision, reversed it, threw out the verdict. The basis for it? They said Lilly Ledbetter filed her discrimination complaint too late. They said her complaint should have been filed within 180 days of the first discriminatory paycheck.
That decision defied common sense and the realities of a workplace where few employees know what their fellow employees are being paid. It contradicted the decades of past precedent.
In the Safford v. -- United School District v. Redding, 13-year- old girl strip-searched at her school because of a false rumor that she was hiding ibuprofen pills. At the oral argument in April, several of the Supreme Court justices asked questions about the case that, unfortunately, revealed a stunning lack of empathy about the eighth grade victim.
One of the justices even suggested that being strip-searched was no different than changing clothes for gym class. Although Justice Ruth Bader Ginsburg helped her eight male colleagues understand why the strip search of a 13-year-old girl was humiliating enough to violate her constitutional rights, a majority of the justice ruled that the school officials were immune from liability.
Five-to-four case in 2007, Gonzales v. Carhart, Supreme Court again overturned past precedent and ruled for the first time it was permissible to place restrictions on abortion that don't include an exception regarding a woman's health.
Judge Sotomayor, you have overcome many obstacles in your life that have given you an understanding of the daily realities and struggles faced by everyday people.
You grew up in a housing complex in the Bronx. You overcame a diagnosis of juvenile diabetes at age 8 and the death of your father at age 9.
Your mother worked two jobs so she could afford to send you and your brothers to Catholic schools, and you earned scholarships to Princeton and Yale. I know how proud you are of your mom and your family.
Your first job out of law school was an assistant district attorney where you prosecuted violent crime. You went on to work in a law firm representing corporations, which gave you another valuable perspective.
In 17 years as a federal judge, you've demonstrated an ability to see both sides of the issues. You earned a reputation as being restrained and moderate and neutral. Of the 110 individuals who have served as Supreme Court justices throughout our nation's history, 106 have been white males. Until Thurgood Marshall's appointment to the Supreme Court a generation ago, every justice throughout our nation's history had been a white male.
President Obama's nomination of you to serve as the first Hispanic and the third woman on the Supreme Court is historic. The president knows and we know that, to be the first, you have to meet a higher standard.
Before you can serve on this court, the American people, through their elected senators, will be asked to judge you. We owe it to you and the Constitution to be a fair jury. Thank you, Mr. Chairman.
Statement by Sen. Amy Klobuchar, Democrat of Minnesota:
Welcome, Judge Sotomayor. It's a pleasure to see you again today, and I enjoyed the meeting we had in my office a few weeks ago. We had a good conversation – although you did confess to me that when you once visited Minnesota in June, you felt the need to bring a winter parka. I'll try not to hold that against you this week!
I know you have lots of family and friends with you today, supporting you during this important hearing, and we welcome them too. In particular, it's been an honor for me to see your mom here.
When President Obama first announced your nomination, I loved the story about how your mom had saved up money to buy you and your brother the only set of encyclopedias in the neighborhood. It reminded me of when my parents bought a set of Encyclopedia Britannicas in the seventies that always occupied a hallowed place in our hallway. For me, those encyclopedias were a window on the world and a gateway to learning, as they clearly were for you.
From the time you were nine years old, your mom raised you and your brother on her own. She struggled to buy those encyclopedias on her nurse's salary, but she did it because she believed deeply in the value of education.
You went on to be the valedictorian of your high school class, to graduate at the top of your class in college and to attend law school.
After that – and this is an experience we have in common – you became a local prosecutor. Most of my questions during this hearing will be about opinions you've authored and work you've done in the criminal area. I believe having judges with real world, frontline experience as a prosecutor is a good thing.
When I think about the inspiring journey of your life, I'm reminded of other Supreme Court Justices who came from – and I'll use your own words here, Judge – "very modest and challenging circumstances."
I think about Justice O'Connor, who lived the first years of her life on a ranch in rural Arizona with no running water, no indoor plumbing, and no electricity. By sheer necessity, she learned to mend fences, ride horses, brand cattle, fire a rifle and drive a truck before she turned thirteen.
I also think about Justice Thurgood Marshall, who was the great-grandson of a slave.
His mother was a teacher; while his father worked as a Pullman car waiter before becoming a steward at an all-white country club.
Justice Marshall waited tables to help put himself through college, and his mother had to pawn her wedding and engagement rings to pay his entrance fees at Howard University Law School here in Washington.
And then there's Justice Blackmun, who grew up in a St. Paul working-class neighborhood in my home state of Minnesota.
He was able to attend Harvard College only because he received a scholarship at the last minute from the Harvard Club of Minnesota. Once there, he worked as a tutor and as a janitor to help pay expenses.
Through four years of college and three years of law school, his family never had enough money to bring him home to Minnesota for Christmas.
Each of these very different Justices grew up with their own, very different "challenging circumstances."
No one can doubt that, for each one of these Justices, their life experiences shaped the work they did on the Supreme Court.
This should be unremarkable. And, in fact it's completely appropriate. After all, our own Committee demonstrates the value that comes from members who have different backgrounds and perspectives.
For instance, at the same time my accomplished colleague Senator Whitehouse, who was the son of a renowned diplomat, grew up in Laos and Cambodia during the time of the Vietnam War – I was working as a carhop at the A&W Root Beer stand in the suburbs in Minnesota.
And while Senator Hatch is a famed gospel music songwriter, Senator Leahy is such a devoted fan of the Grateful Dead that he once had trouble taking a call from the President of the United States because in fact the Chairman was onstage at a Grateful Dead concert.
We've been tremendously blessed on this Committee with the gift of having members with different backgrounds and different experiences – just as different experiences are a gift for any court in this land. So when one of my colleagues questioned whether you, Judge Sotomayor, would be a justice "for all of us, or just for some of us," I couldn't help but remember something that Hubert Humphrey once said: America is "all the richer for the many different and distinctive strands of which it is woven."
Along those lines, Judge Sotomayor, you are only the third woman in history to come before this Committee as a Supreme Court nominee. And as you can see there are currently only two women, my distinguished colleague Senator Feinstein and myself, on this Committee.
So, I think it's worth remembering that when Justice O'Connor graduated from law school, the only offers she got from law firms were for legal secretary positions. Justice O'Connor – who graduated third in her class at Stanford Law School – saw her accomplishments reduced to one question: "Can she type?" Justice Ginsburg faced similar obstacles.
When she entered Harvard Law School, she was one of only nine women in a class of more than 500. One professor actually demanded that she justify why she deserved a seat that could have gone to a man. Later, she was passed over for a prestigious clerkship despite her impressive credentials.
Nonetheless, both of them persevered – and they certainly prevailed. Their undeniable merits triumphed over those who sought to deny them opportunity. The women who came before you to be considered by this Committee helped blaze a trail, and although your record stands on its own, you are also standing on their shoulders – another woman with an opportunity to be a Justice "for all of us."
And as Justice Ginsburg's recent comments regarding the strip search of a 13-year-old girl indicate – as well as her dissent in Lilly Ledbetter's equal pay case – being a Justice "for all of us" may mean bringing some real world practical experience into the courthouse.
As we consider your nomination, we know that you are more than the sum of your professional experiences. Still, you bring one of the most wide-ranging legal resumes to this position: local prosecutor, civil litigator, trial judge and appellate judge.
Straight out of law school, you went to work as a prosecutor in the Manhattan District Attorney's Office – and you ended up staying there for five years.
When you're a prosecutor, the law ceases to be an abstract subject and becomes all too real. It's not just a dusty book in your basement.
You see firsthand, every day, how the law has a very real impact on the lives of real people – whether it's crime victims and their families, or defendants and their families, or the neighborhoods where people live.
It also has a big impact on the individual prosecutor.
No matter how many years may pass, you never forget some of the very difficult cases. For you, Judge, we know this includes the case of a serial burglar-turned-killer (the "Tarzan Murderer").
For me, there will always be the case of Tyesha Edwards, an 11-year-old girl with an unforgettable smile who was at home doing her homework at the kitchen table when she was struck and killed by a stray bullet from a gang shooting out on the street.
As a prosecutor, you don't just have to know the law . . . you have to know people.
So, Judge, I'm interested in talking to you more about what you learned from that job, and how that job shaped your legal career and your approach to judging.
I'm also interested in learning more about your views on some criminal law issues. I want to explore your views on the Fourth Amendment, the meaning of the Confrontation Clause, and sentencing law and policy.
I'd like to know in criminal cases as well as civil cases how you would balance the text of statutes and the Constitution with pragmatic considerations based on your real-world experience. It seems to me, in cases like Falso, Santa, and Howard, that you had a keen understanding of the real-world implications of your decisions.
I often get concerned that those pragmatic experiences are missing in judicial decision-making, especially when I look at the recent Supreme Court case in which the majority broadly interpreted the Confrontation Clause to include crime lab workers. I agree with the four dissenting Justices that the ruling "has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence."
Your old boss, Manhattan District Attorney Robert Morgenthau, called you a "fearless and effective" prosecutor.
This is how he put it once in an interview: "We want people with good judgment, because a lot of the job of a [prosecutor] is making decisions. . . . I also want to see some signs of humility in anybody that I hire. We're giving young lawyers a lot of power, and we want to make sure that they're going to use that power with good sense and without arrogance."
These are among the very same qualities that I'm looking for in a Supreme Court Justice.
I, too, am looking for a person with good judgment –someone with intellectual curiosity and independence, but who also understands that her judicial decisions affect real people.
With that, I think, comes a second essential quality: Humility. I'm looking for a Justice who appreciates the awesome responsibility that she will be given, if confirmed. A Justice who understands the gravity of the office and who respects the very different roles that the Constitution provides for each of the three branches of government.
Finally, a good prosecutor knows that her job is to enforce the law without fear or favor. Likewise, a Supreme Court Justice must interpret the laws without fear or favor.
And I believe your background and experiences, including your understanding of law enforcement, will help you to always remember that the cases you hear involve real people – with real problems – looking for real remedies. With excellent judgment and a sense of humility, I believe you can be a Justice "for all of us." Thank you.
Statement by Sen. Ted Kaufman, Democrat of Delaware:
Welcome, Judge Sotomayor, and welcome also to your family and friends. Like my colleagues, I want to congratulate you on your nomination.
We are now beginning the end of an extraordinarily important process. Short of voting to go to war, the Senate's constitutional obligation to "advise and consent" on Supreme Court nominees is probably our most important responsibility.
Supreme Court justices serve for life, and once the Senate confirms a nominee, she is likely to be affecting the law and American lives much longer than many of the Senators who confirmed her.
The "advise and consent" process for this nomination began after Justice Souter announced his intent to resign and President Obama consulted with members of both parties before making his selection. It has continued since then, with help from an extensive public debate amongst analysts and commentators, scholars and activists, both in the traditional press and in the blogosphere.
This public vetting process, while not always accurate or temperate, is extremely valuable both to the Senate and to the public. One of the great benefits of a free society is our ability, collectively, to delve deeply into an extensive public record. We've seen a wide-ranging discussion of the issues, in which anyone can help dissect and debate even the most minute legal issue and personal expressions of opinion.
In another, less public part of the process, Judge Sotomayor has met with close to 90 percent of the Senate. Those meetings, too, are extremely useful. I know I learned a great deal in my meeting, and I'm confident that my colleagues did as well.
For me, the critical criteria for judging a Supreme Court nominee are the following: A first-rate intellect, significant experience, unquestioned integrity, absolute commitment to the rule of law, unwavering dedication to being fair and open-minded, and the ability to appreciate the impact of court decisions on the lives of ordinary people. Based on what we've learned so far, this is an impressive nominee.
Judge Sotomayor, I am confident that this hearing will give this committee, and the rest of the Senate, the information we need to complete our constitutional duty. As senators, I believe we each owe you a decision based upon your record and your answers to our questions. That decision should not turn on empty code words like "judicial activist," or on charges of guilt by association, or on any litmus test. Instead, we should focus on your record and your responses, and determine whether you have the qualities that will enable you to serve well all Americans, and the rule of law, on our nation's highest court.
As my colleagues already have noted, your rise from humble beginnings to extraordinary academic and legal achievement is an inspiration to us all. And I note that you would bring more federal judicial experience to the Supreme Court than any justice in over 100 years.
You also have incredibly valuable practice experience, not only as a prosecutor but also as a commercial litigator. In terms of your judicial record, you appear to have been careful, thoughtful, and open-minded. In fact, what strikes me most about your record is that it seems to reveal no biases. You appear to take each case as it comes, without predilection, giving full consideration to the arguments of both sides before reaching a decision.
When Justice Souter announced his retirement in May, I suggested that the Court would benefit from a broader range of experience among its members. My concern at the time wasn't the relative lack of women or racial or ethnic minorities on the Court, though that deficit is glaring. I was pointing to the fact that most of the current Justices, whether they be black or white, women or men, share roughly the same life experiences.
I am heartened by what you would bring to the Court, based on your upbringing, your story of achievement in the face of adversity, your professional experience as a prosecutor and commercial litigator, and, yes, the prospect of your being the first Latina to sit on the high court.
Though the Supreme Court is not a representative body, we should hold as an ideal that it broadly reflect the citizens it serves. Diversity serves many goals. Outside the courtroom, it better equips our institutions to understand more of the viewpoints and backgrounds that comprise our pluralistic society. Moreover, a growing body of social research suggests that groups with diverse experiences and backgrounds simply come to the right outcome more often than do non-diverse groups that may be just as talented. I believe a diverse Court will function better as well.
Another concern I have about the current Supreme Court is its handling of business cases. Too often it seems to disregard settled law and congressional policy choices.
Based on my education, experience, and inclination, I am not anti-business. But whether it's preempting state consumer protection laws, striking down punitive damages awards, restricting access to the courts, or overruling 96 years of pro-consumer antitrust law, today's court gives me the impression that in business cases the working majority is outcome-oriented and therefore too one-sided.
Given our current economic crisis, and the failures of regulation and enforcement that led to that crisis, that bias is particularly troubling. Congress can and will enact a dramatically improved regulatory system.
The President can and will make sure that the relevant enforcement agencies are populated with smart, motivated, and effective agents. But a Supreme Court resistant to federal government involvement in and regulation of markets could undermine those efforts.
A judge, or a court, has to call the game the same way for all sides. Fundamental fairness requires that in the courtroom, everyone comes to the plate with the same count of no balls and no strikes.
One of the aspirations of the American judicial system is that it is a place where the powerless have a chance for justice on a level playing field with the powerful. We need Justices on the Supreme Court who not only understand that aspiration, but also are committed to making it a reality.
Because of the importance of business cases before the Supreme Court, I plan to spend some time asking you about your experience as a commercial litigator, your handling of business cases as a trial judge and on the court of appeals, and your approach to business cases generally. From what I've seen in your record, you seem to call these cases right down the middle, without any bias or agenda. That is very important to me.
Very soon, those of us up here will be done talking, and you'll have the chance to testify, and then to answer our questions. I look forward to your testimony.
Statement by Sen. Al Franken, Democrat of Minnesota:
Thank you, Mr. Chairman. It is an incredible honor to be here. Less than a week into my term as a United States Senator, my first major responsibility is here, at this historic confirmation hearing.
I am truly humbled to join the Judiciary Committee, which has played, and will continue to play, such an important role in overseeing our nation's system of justice. Chairman Leahy, for several years now I have admired your strength and integrity in leading this Committee. I'm grateful for the warm welcome and consideration you have given me, and I am honored to serve alongside you.
Ranking Member Sessions, I want you to know that I plan to follow the example of my good friend and predecessor, Paul Wellstone, who was willing and ready to partner with his colleagues across the aisle to do the work of the American people. I look forward to working over the years with you and my other Republican colleagues in the Senate to improve the lives of all Americans.
To all the members of this committee, I know that I have a lot to learn from each of you. Like so many private citizens, I have watched at least part of each and every Supreme Court confirmation hearing since they have been televised. And I would note that this is the first confirmation hearing that Senator Kennedy has not attended since 1965. We miss his presence.
These televised hearings have taught Americans a lot about our Constitution – and the role that the courts play in upholding and defending it. I look forward to listening to your questions and to the issues that you and your constituents care about.
To Judge Sotomayor, welcome. For the next few days, I expert to learn from you as well. You are the most experienced nominee to the Supreme Court in 100 years. And after meeting with you in my office last week, I know that aside from being a fine jurist, you are also an exceptional individual. Your story is inspiring and one in which all Americans should take pride.
As most of you know, this is my fifth day in office. That may mean that I am the most junior Senator, but it also means that I am the Senator who has most recently taken the oath of office. Last Tuesday, I swore to "support and defend the Constitution of the United States" and to "bear true faith and allegiance" to it. I take this oath very seriously as we consider Judge Sotomayor's nomination.
I may not be a lawyer, but neither are the overwhelming majority of Americans. Yet all of us, regardless of our backgrounds or professions, have a huge stake in who sits on the Supreme Court and are profoundly affected by its decisions.
I hope to use my time over the next few days to raise issues that concern people in Minnesota and around the country. This hearing will help folks sitting in living rooms and offices in Winona or Duluth or the Twin Cities to get a better idea of what the court is, what it does and what it is supposed to do, and most importantly, how its actions affect the everyday lives of all Americans.
Justice Souter, whom you will replace if you're confirmed, once said: "The first lesson, simple as it is, is that whatever court we're in, whatever we are doing, at the end of our task some human being is going to be affected. Some human life is going to be changed by what we do. And so we had better use every power of our minds and our hearts and our beings to get those rulings right." I believe he had it right.
In the past months, I've spent a lot of time thinking about the court's impact on the lives of Americans and reading and consulting with some of Minnesota's top legal minds. And I believe that the rights of Americans, as citizens and voters, are facing challenges on two separate fronts.
First, I believe the position of Congress with respect to the Courts and the Executive is in jeopardy. Even before I aspired to represent the people of Minnesota in the United States Senate, I believed that the Framers made Congress the first branch of government for a reason. It answers most directly to the people and has the legitimacy to speak for the people in crafting laws to be carried out by the executive branch.
I am wary of judicial activism and I believe in judicial restraint. Except under the most exceptional circumstances, the judicial branch is designed to show deep deference to Congress and not make policy by itself.
Yet looking at recent decisions on voting rights, campaign finance reform, and a number of other topics, it appears that appropriate deference may not have been shown in the past few years – and there are ominous signs that judicial activism is on the rise in these areas.
I agree with Senator Feingold and Senator Whitehouse that we hear a lot about judicial activism when politicians talk about what kind of judge they want in the Supreme Court. But it seems that their definition of an activist judge is one who votes differently than they would like. Because during the Rhenquist Court, Justice Clarence Thomas voted to overturn federal laws more than Justices Stevens and Breyer combined.
Second, I am concerned that Americans are facing new barriers to defending their individual rights. The Supreme Court is the last court in the land where an individual is promised a level playing field and can seek to right a wrong:
• It is the last place an employee can go if he or she is discriminated against because of age, gender, or color.
• It is the last place a small business owner can go to ensure free and fair competition in the market.
• It is the last place an investor can go to try to recover losses from securities fraud.
• It is the last place a person can go to protect the free flow of information on the internet.
• It is the last place a citizen can go to protect his or her vote.
• It is the last place where a woman can go to protect her reproductive health and rights.
Yet from what I see, on each of those fronts, for each of those rights, the past decade has made it a little bit harder for American citizens to defend themselves.
As I said before, Judge, I'm here to learn from you. I want to learn what you think is the proper relationship between Congress and the Courts, between Congress and the Executive. I want to learn how you go about weighing the rights of the individual, the small consumer or business-owner, and more powerful interests. And I want to hear your views on judicial restraint and activism in the context of important issues like voting rights, open access to the Internet, and campaign finance reform. We're going to have a lot of time together, so I'm going to start listening. Thank you, Mr. Chairman.