Opinion: Sotomayor hearings: The complete transcript -- Part 4

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As The Ticket often does, in addition to our own take on politics and events, we are providing a complete transcript here for those interested in reading the political participants’ own words in full.

Here’s Part 2 of the transcript of the second day of hearings on the Supreme Court nomination of Judge Sonia Sotomayor, so Ticket readers can make their own judgments on the back-and-forth between the nominee and the interrogating senators -- some setting her up with softballs, others pursuing tougher lines of questioning.

This particular part of the transcript involves heavily nuanced discussions of constitutional law between Sen. Orrin Hatch of Utah and the nominee.

A complete cast of characters is added to the bottom of this item.

Yesterday, we published each committee senator’s opening statement. And we published Sotomayor’s opening statement. Part 1 of today’s transcript is available by clicking here. Part 2 of today’s transcript is available here. Part 3 is available here.

Part 5, the last one, is now available here.

Keep returning here for more throughout the hearing and see the variety of items our Ticket writers are producing for you.

-- Andrew Malcolm

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SOTOMAYOR: No, I was just suggesting that I do recognize that the court’s more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court’s decision how it looks at a new challenge to a state regulation.

FEINGOLD: And -- and, of course, it is true that, despite that trend that you just described, that the Supreme Court has not incorporated several constitutional amendments as against the states, but most of those are....

...covered by constitutional provisions in state constitutions and the Supreme Court decisions that refuse to -- that refuse to incorporate the federal constitutional protections, like the case involving the Second Amendment, a 19th century case, date back nearly a century.

So after Heller, doesn’t it seem almost inevitable that, when the Supreme Court does again consider whether the Second Amendment applies to the states, that it will find the individual right to bear arms to be fundamental, which is a word that we’ve been talking about today.

After all, Justice Scalia’s opinion said this: By the time of the founding, the right to have arms -- bear arms had become fundamental for English subjects. Blackstone, whose works we have said constituted the pre-eminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. It was, he said, the natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defense.

SOTOMAYOR: As I said earlier, you’re a very eloquent advocate, but a decision on what the Supreme Court will do and what’s inevitable will come up before the justices in great likelihood in the future. And so I feel that I’m threading the line of...

FEINGOLD: OK.

SOTOMAYOR: ... answering a question about what the court will do in a case that may likely come before it in the future.

FEINGOLD: Well, let me try it in a more -- less lofty way then. We talked of nunchucks before.

SOTOMAYOR: OK.

FEINGOLD: That’s an easier kind of case. But what Heller was about was that there was a law here in D.C. that said you couldn’t have a handgun if you wanted to have it in your house to protect yourself. It is now protected under the Constitution that the citizens of the District of Columbia can have a handgun.

Now, what happens if we don’t incorporate and the people of the state of Wisconsin -- let’s say we didn’t have a constitutional provision in Wisconsin. We didn’t have one until the 1980s, when I and other state senators proposed that we have a right to bear arms provision.

But isn’t there a danger here that if you don’t have this incorporated against the states that we’d have this result where the citizens of D.C. have a constitutional right to have a handgun, but the people of Wisconsin might not have that right? Doesn’t -- doesn’t that make it almost inevitable that you would have to apply this to the states?

SOTOMAYOR: It’s a question the court will have to consider...

FEINGOLD: I appreciate your patience.

SOTOMAYOR: ... and its meaning of Heller. Senator, the Supreme Court did hold that there is in the Second Amendment an individual right to bear arms, and that is its holding, and that is the court’s decision. I fully accept that.

And in whatever new cases come before me that don’t involve incorporation as a circuit -- Second Circuit judge, I would have to consider those -- those issues in the context of a particular state regulation of firearms or other instruments.

FEINGOLD: I accept that answer, and I’m going to move on to another area I like to call secret law, and that’s the development of controlling legal authority that has direct effects on the rights of Americans, but is done entirely in secret.

FEINGOLD: There are two strong examples of that. First, the FISA court often issues rulings containing substantive interpretation of the FISA act or FISA that, with very few exceptions, have been kept from the public. And until a recent change in the law, many of them were not available to the full Congress, either, meaning that members had been called upon to vote on statutory changes without knowing how the court had interpreted the existing statutes.

Second, the Office of Legal Counsel at the Justice Department issues legal opinions that are binding on the executive branch, but are also often kept from the public and Congress.

Now, I understand that these legal documents may sometimes contain classified operational details that would need to be redacted. But I’m concerned that the meaning of law, like FISA, which directly affects the privacy rights of Americans could develop entirely in secret. I think it flies in the face of our traditional notion of an open and transparent American legal system. Does this concern you at all? Can you say a little bit about the importance of the law itself being public?

SOTOMAYOR: Well, the question for a judge, as a judge would look at it, is to examine first what policy choices the Congress is making in its legislation. It is important to remember that some of the issues that you are addressing were part of congressional legislation as to how FISA would operate. And, as you just said, there’s been amendments subsequent to that. And so, a court would start with what Congress has -- what Congress has done, and whether the acts of the other branch of government is consistent with that or not.

The issue of whether and how a particular document would affect national security or affect questions of that nature would have to be looked at in -- with respect to an individual case. And, as I understand it, there are review processes in the FISA procedure. I’m not a member of that court. So, I’m -- I’m not intimately familiar with those procedures. But I know that this is a part of the review process there, in part.

And so, when you ask concern, there is always some attention paid to the issue of -- of the public reviewing or looking at the actions that a court is taking. But that also is tempered with the fact that there are situations in which complete openness can’t be had for a variety of different reasons.

And so, courts -- I did as a District Court judge, and I have as a Circuit Court judge -- looked at situations in which judges had to -- had to determine whether juries should be impaneled anonymously. And in those situations, we do consider the need for public actions. But we also consider that there may be, in some individual situations, potential threats to the safety of jurors that require an anonymous jury.
I’m attempting to speak about this as a -- always a question of balance.

GRAHAM: But -- but most (inaudible)...(CROSSTALK)

SOTOMAYOR: You have to look at first what Congress says about that.

GRAHAM: But the concerns you just raised, don’t they have to do more with the facts that shouldn’t be revealed than the legal basis? It’s -- it’s sort of hard for me to imagine a threat to national security by revealing properly redacted documents that simply refer to the legal basis for something. Isn’t there a distinction between those two things?

SOTOMAYOR: I -- I can’t -- it’s difficult to speak from the abstract. In -- in large measure, just as I explained, I’ve never been a part of the FISA court. And so, I’ve never had the experience of reviewing what those documents are, and whether they, in fact, can be redacted or not without creating risk to national security. And one has to think about what the -- what explanations the government has.

There are so many issues a court would have to look at.

GRAHAM: Let me go to something completely different. There’s been a lot of talk about this concept of empathy in the context of your nomination. A judge’s ability to feel empathy does not, of course, mean the judge should rule one way or another, as you well explained.

But I agree with President Obama that it’s a good thing for our country for judges to understand the real-world implications of their decisions and the effects on regular Americans and to seek to understand both sides of an issue.

Judge, your background is remarkable. As you explained yesterday, your parents came to New York from Puerto Rico during World War II. And after your father died, your mother raised you on her own in a housing project in the South Bronx. You are a lifelong New Yorker and a Yankee fan, as I understand it. But many Americans don’t live in big cities. Many of my constituents live in rural areas and small towns, and they root for the Brewers and the Packers.

Now, some might think that you don’t have a lot in common with them. What can you tell me about your ability as a judge to empathize with them, to understand the everyday challenges of rural and small- town America and how Supreme Court decisions might affect their lives?

SOTOMAYOR: Yes, I live in New York City, and it is a little different than other parts of the country. But I spend a lot of time in other parts of the country. I’ve visited a lot of states. I’ve stayed with people who do all types of work. I’ve lived on -- not lived -- I’ve visited and vacationed on farms. I’ve lived and vacationed in mountaintops. I’ve lived and vacationed in all sorts -- not lived. I’m using the wrong word.

I’ve visited all sorts of places. In fact, one of my habits is when I travel somewhere new, I try to find a friend I know to stay with them. And it’s often not because I can’t afford a hotel. Usually, the people who are inviting me would be willing to pay.

But it’s because I do think it’s important to know more than what I live and to try to stay connected to people and to different experiences. I don’t think that one needs to live an experience without appreciating it, listen to it, watching it, reading about it. All of those things -- experiencing it for a period of time -- help judges in appreciating the concerns of other experiences that they don’t personally have.

And as I said, I try very, very hard to ensure that, in my life, I introduce as much experience with other people’s lives as I can.

GRAHAM: I realize I’m jumping back and forth through these issues. But the last one I want to bring up has to do with the wartime Supreme Court decisions like Korematsu that we look back at with some bewilderment, of course. The Korematsu vs. the United States decision in which the Supreme Court upheld a government policy to round up and detain more than a hundred thousand Japanese Americans during World War II.

It seems inconceivable that the U.S. government would have decided to put huge numbers of citizens in detention centers based on their race and yet the Supreme Court allowed that to happen. I asked Chief Justice Roberts about this, I’ll ask you as well. Do you believe that Korematsu was wrongly decided?

SOTOMAYOR: It was, sir.

GRAHAM: Does a judge have a duty to resist the kind of wartime fears that people understandably felt during World War II which likely played a role in the 1944 Korematsu decision?

SOTOMAYOR: A judge should never rule from fear. A judge should rule from law and the Constitution. It is inconceivable to me today that a decision permitting the detention and arrest of an individual solely on the basis of their race would be considered appropriate by our government.

FEINGOLD: Now, some of the great justices in the history of our country were involved in that decision. How does a judge resist those kind of fears?

SOTOMAYOR: One hopes, by having the -- the wisdom of a Harlan in Plessy, by having the wisdom to understand always, no matter what the situation, that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.

FEINGOLD: Thank you, Judge.

LEAHY: Thank -- thank you very much, Senator Feingold. What I was going to do is go Senator Kyl, Senator Schumer, and then we will take a break. Senator Kyl?

KYL: Thank you, Mr. Chairman. Judge, could I return briefly to a series of questions that Senator Feingold asked at the very beginning relating to the Maloney decision relating to the Second Amendment.

SOTOMAYOR: Sure.

KYL: Yes...

SOTOMAYOR: Good afternoon, by the way.

KYL: Oh, I’m sorry?

SOTOMAYOR: Good afternoon, by the way.

KYL: Yes, good afternoon. You had indicated, of course, if that case were to come before the court, under the recusal statute, you would recuse yourself from participating in the decision.

SOTOMAYOR: In that case, yes.

KYL: Yes. And you’re aware -- or maybe you’re not -- but There are two other decisions both dealing with the same issue of incorporation, one in the Ninth Circuit, one in the Seventh Circuit. The Seventh Circuit decided the case similarly to your circuit; the Ninth Circuit has decided it differently, although that case is on rehearing.

If the court should take all three -- let’s assume the Ninth Circuit stays with its decision, so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, I take it the recusal issue would be the same. You would recuse yourself in that situation?

SOTOMAYOR: I haven’t actually been responding to that question, and I think you’re right for posing it. I clearly understand that recusing myself from Maloney would be appropriate. The impact of a joint hearing by the court would suggest that I would have to apply the same principle.

But as I indicated, issues of recusal are left to the discretion of justices because their participation in cases is so important. It is something that I would discuss with my colleagues and follow their practices...

KYL: Sure.

SOTOMAYOR: ... with respect to a question like this.

KYL: I -- I appreciate that. And I -- I agree with your reading of it. The law, 28 USC Section 455, provides, among other things, and I quote, “Any justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” end of quote.

And that, of course, raises the judge’s desire to consult with others and ensure that impartiality is not questioned by participating in a decision. I would -- I would think -- and I would -- I would want your responses -- I would think that there would be no difference if the Maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time.

SOTOMAYOR: As I said, that’s an issue that’s different than the question that was posed earlier.

KYL: Would you not be willing to make an unequivocal commitment on that at this time?

SOTOMAYOR: It’s impossible to say. I will recuse myself on any case involving Maloney. How the other cert is granted, and whether joint argument is presented or not, I would have to await to see what happens.

KYL: Well, let me ask you this. Suppose that the other two cases are considered by the Court -- your circuit is not involved -- or that the Court takes either the 7th or 9th Circuit, and decides the question of incorporation of the Second Amendment.

I gather that, in subsequent decisions, you would consider yourself bound by that precedent, or that you would consider that to be the decision of the Court on the incorporation question.

SOTOMAYOR: Absolutely. The decision of the Court in Heller is -- its holding has recognized an individual right to bear arms...

KYL: Right.

SOTOMAYOR: ... as applied to the federal government.

KYL: If, as a result -- I mean, that was the matter before your circuit. And if, as a result of the fact that the Court decided one of the other, or both of the other two circuit cases and resolved that issue, so that the same matter would have been before the Court, would it not also make sense for you to indicate to this committee now, that should that matter come before the Court, and you’re on the Court, that you would necessarily recuse yourself from its consideration?

SOTOMAYOR: I didn’t quite follow the start of your question...

KYL: All right. Let me restate it.

SOTOMAYOR: ... Senator Kyl. I want to answer precisely...

KYL: Sure.

SOTOMAYOR: ... but I’m not quite sure...

KYL: You agree with me, that if the Court considered either the 7th or 9th Circuit, or both, decisions, and decided the issue of incorporation of the Second Amendment to make it applicable to the states, you would consider that binding precedent of the Court. That, of course, was the issue in Maloney.

As a result, since it’s the same matter that you resolved in Maloney, wouldn’t you have to, in order to comply with the statute, recuse yourself if either, or both, or all three of those cases came to the Court?

SOTOMAYOR: Senator, as I indicated, clearly, the statute would reach Maloney. How I would respond to the Court taking certiorari, in what case, and whether it took certiorari in one or all three, is a question that I would have to await to see what the Court decides to do, and what issues it addresses in its grant of certiorari.

There’s also the point that whatever comes before the Court will be on the basis of a particular state statute, which might involve other questions.

It’s hard to speak about recusal in the abstract, because there’s so many different questions that one has to look at.

KYL: And I do appreciate that. And I appreciate that you should not commit yourself to a particular decision in a case.

If the issue is the same, however, it’s simply the question of incorporation, that is a very specific question of law. It doesn’t depend upon the facts. I mean, it didn’t matter that, in your case, you were dealing with a very dangerous arm -- but not a firearm, for example -- you still considered the question of incorporation.

Well, let me just try to help you along here.

Both Justice Roberts and Justice Alito made firm commitments to this committee. Let me tell you what Justice Roberts said. He said that he would recuse himself -- and I’m quoting now -- from matters in which he participated while a judge on the Court of Appeals -- matters.

And since you did acknowledge that the incorporation decision was the issue in your decision -- in your 2nd Circuit case -- and the question that I asked was whether, if that is the issue from the 9th and 7th Circuits, you would consider yourself bound by that.

It would seem to me that you should be willing to make the same kind of commitment that Justice Roberts and Justice Alito did.

SOTOMAYOR: I didn’t understand their commitment to be broader than what I have just said, which is that they would certainly recuse themselves from any matter, I understood it to mean any case that they had been involved in as a -- as a circuit judge. If their practice was to recuse themselves more broadly, then, obviously, I would take counsel from what they did.

But I believe, if my memory is serving me correctly -- and it may not be, but I think so -- that Justice Alito, as a Supreme Court justice, has heard issues that were similar to ones that he considered as a circuit court judge. So as I’ve indicated, I will take counsel from whatever the practices of the justices are with the broader question of what...

KYL: I appreciate that. Issues which are similar is different, though, from an issue which is the same. And I would just suggest that there would be an appearance of impropriety. If you’ve already decided the issue of incorporation one way, that’s the same issue that comes before the Court. And then you, in effect, review your own decision.

That, to me, would be a matter of inappropriate and, perhaps, you would recuse yourself. I understand your answer. Let me ask you about what the president said -- and I talked about it in my opening statement -- whether you agree with him. He used two different analogies. He talked once about the 25 miles -- the first 25 miles of a 26-mile marathon.

And then he also said, in 95% of the cases, the law will give you the answer, and the last 5 percent legal process will not lead you to the rule of decision. The critical ingredient in those cases is supplied by what is in the judge’s heart. Do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what’s in the judge’s heart?

SOTOMAYOR: No, sir. That’s -- I don’t -- I wouldn’t approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can’t rely on what’s in their heart. They don’t determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it’s not the heart that compels conclusions in cases. It’s the law. The judge applies the law to the facts before that judge.

KYL: Appreciate that. And has it been your experience that every case, no matter how tenuous it’s been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality it make? Some precedent that he’s cited? It might not be the Supreme Court. It might not be the court of appeals. It might be a trial court somewhere. It might not even be a court precedent. It may be a law review article or something. But have you ever been in a situation where a lawyer said I don’t have any legal argument to me, Judge, please go with your heart on this or your gut?

SOTOMAYOR: Well, I’ve actually had lawyers say something very similar to that. (LAUGHTER) I’ve had lawyers where questions have been raised about the legal basis of their argument. I thought one lawyer who put up his hands and said, but it’s just not right. (LAUGHTER) But it’s just not right is not what judges consider. What judges consider is what the law. says.

KYL: You’ve always been able to find a legal basis for every decision that you’ve rendered as a judge?

SOTOMAYOR: Well, to the extent that every legal decision has -- it’s what I do in approaching legal questions is, I look at the law that’s being cited. I look at how precedent informs it. I try to determine what those principles are of precedent to apply to the facts in the case before me and then do that. And so one -- that is a process. You use...

KYL: Right. And -- and all I’m asking -- this is not a trick question.

SOTOMAYOR: No, I wasn’t...

KYL: I can’t imagine that the answer would be otherwise than, yes, you’ve always found some legal basis for ruling one way or the other, some precedent, some reading of a statute, the Constitution or whatever it might be. You haven’t ever had to throw up your arms and say, “I can’t find any legal basis for this opinion, so I’m going to base it on some other factor”?

SOTOMAYOR: It’s -- when you say -- use the words “some legal basis,” it suggests that a judge is coming to the process by saying, “I think the result should be here, and so I’m going to use something to get there.”

KYL: No, I’m not trying to infer that any of your decisions have been incorrect or that you’ve used an inappropriate basis. I’m simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case. Sometimes there aren’t cases directly on point. That’s true. Sometimes it may not be a case from your circuit. Sometimes it may be somewhat tenuous and you may have to rely upon authority, like scholarly opinions and law reviews or whatever.

But my question is really very simple to you: Have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra-legal concept, such as empathy or some other concept other than a legal interpretation or precedent?

SOTOMAYOR: Exactly, sir. We apply law to facts. We don’t apply feelings to facts.

KYL: Right. Now, thank you for that. Let me go back to the beginning. I raised this issue about the president’s interpretation, because he clearly is going to seek nominees to this court and other courts that he’s comfortable with and that would imply who have some commonality with his view of the law in judging. It’s a concept that I also disagree with.

But in this respect, it is -- the speeches that you have given and some of the writings that you’ve engaged in have raised questions, because they appear to fit into what the president has described as this group of cases in which the legal process or the law simply doesn’t give you the answer.

And it’s in that context that people have read these speeches and have concluded that you believe that gender and ethnicity are an appropriate way for judges to make decisions in cases. Now, that’s -- that’s my characterization.

KYL: I want to go back through the -- I’ve read your speeches, and I’ve read all of them several times. The one I happened to mark up here is the Seton Hall speech, but it was virtually identical to the one at Berkeley.

You said this morning that your -- the point of those speeches was to inspire young people. And I think there is some in your speeches that certainly is inspiring, and, in fact, it’s more than that. I commend you on several of the things that you talked about, including your own background, as a way of inspiring young people, whether they’re minority or not, and regardless of their gender. You said some very inspirational things to them.

And I take it that, therefore, in some sense, your speech was inspirational to them. But, in reading these speeches, it is inescapable that your purpose was to discuss a different issue, that it was to discuss -- in fact, let me put it in your words. You said, “I intend to talk to you about my--I--my Latina identity, where it came from, and the influence I perceive gender, race, and national original representation will have on the development of the law.

And then, after some preliminary and sometimes inspirational comments, you got back to the theme and said, “The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go, but instead to discuss what it will mean to have more women and people of color on the bench.”

You said, “No one can or should ignore asking and pondering what it will mean, or not mean, in the development of the law.” You talked to -- you cited some people who had a different point of view than yours, and then you came back to it and said, “Because I accept the proposition that, as Professor Resnick (ph) explains, ‘To judge is an exercise of power,’ and because as Professor Martha Minow of Harvard Law School explains, ‘There is no objective stance, but only a series of perspectives. No neutrality, no escape from choice in judging,’” you said. “I further accept that our experiences as women and people of color will in some way affect our decisions.”

Now, you’re deep into the argument here. You’ve agreed with Resnick that there is no objective stance, only a series of perspectives, no neutrality - which just as an aside, it seems to me, is relativism run amok.

But then you say, “What Professor Minow’s quote means to me is not all women are people of color or all in some circumstances, or me in any particular case or circumstance, but enough women and people of color in enough cases will make a difference in the process of judging.” You’re talking here about different outcomes in cases, and you go on to substantiate your case by, first of all, citing a Minnesota case in which three women judges ruled differently than two male judges in a father’s visitation case.

You cited two excellent studies, which tended to demonstrate differences between women and men in making decisions in cases. You said, “As recognized by legal scholars, whatever the cause is, not one woman or person of color in any one position, but as a group, we will have an effect on the development of law and on judging.”

KYL: So, you develop the theme. You substantiated it with some evidence to substantiate your point of view. Up to that point, you had simply made the case, I think, that judging could certainly reach -- or judges could certainly reach different results and make a difference in judging depending upon their gender or ethnicity. You hadn’t rendered a judgment about whether that -- they would be better judgments or not.

But then, you did. You quoted Justice O’Connor to say that, a wise old woman, wise old man, would reach the same decisions, and then you said: I’m also not sure I agree with that statement. And that’s when you made the statement that’s now relatively famous. I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion.

So here, you’re reaching a judgment that, not only will it make a difference, but that it should make a difference. And you went on. And -- and this is the last thing that I’ll quote here. You said: In short, I -- well, I think this is important.

You note that some of the old white guys made some pretty good decisions eventually -- Oliver Wendell Holmes, Cardozo and others. And -- and you acknowledge that they made a big difference in discrimination cases. But it took a long time to understand. It takes time and effort, something not all people are willing to give, and so on.

And then you concluded this: In short, I accept the proposition that difference will be made by the presence of women and people of color on the bench, and that my experiences will affect the facts that I choose to see. You said: I don’t know exactly what the difference will be in my judging. But I accept that there will be some based on gender and my Latina heritage.

You don’t, as -- as you said in your response to Senator Sessions, you said that you weren’t encouraging that. And you -- you talked about how we need to set that aside. But you didn’t, in your speech, say that this is not good. We need to set this aside. Instead, you seem to be celebrating it. The clear inference is, it’s a good thing that this is happening.

So, that’s why some of us are concerned, first with the president’s elucidation of his point of view here about judging, and then these speeches, several of them, including speeches that were included in Law Review articles that you edited, that all say the same thing.

And it would certainly lead one to a conclusion that, a, you understand it will make a difference; and b, not only are you not saying anything negative about that, but you seem to embrace the difference in -- in concluding that you’ll make better decisions. That’s the basis of concern that a lot of people have. Please take the time you need to respond to my question.

SOTOMAYOR: Thank you. I have a record for 17 years. Decision after decision, decision after decision. It is very clear that I don’t base my judgments on my personal experiences or -- or my feelings or my biases. All of my decisions show my respect for the rule of law, the fact that regardless about if I identify a feeling about a case, which was part of what that speech did talk about, there are situations where one has reactions to speeches -- to activities.

It’s not surprising that, in some cases, the loss of a victim is very tragic. A judge feels with those situations in acknowledging that there is a hardship to someone doesn’t mean that the law commands the result. I have any number of cases where I have acknowledged the particular difficulty to a party or disapproval of a party’s actions and said, “No, but the law requires this.”

So, my views, I think, are demonstrated by what I do as a judge. I’m grateful that you took notice that much of my speech, if not all of it, was intended to inspire. And my whole message to those students, and that’s the very end of what I said to them, was: I hope I see you in the courtroom somebody. I don’t know if I said it in that speech, but I often end my speeches with saying, “And I hope someday you’re sitting on the bench with me.”

And so, the intent of the speech, it’s structure, was to inspire them to believe, as I do, as I think everyone does, that life experiences enrich the legal system.

I used the words “process of judging.” That experience that you look for in choosing a judge, whether it’s the ABA rule that says the judge has to be a lawyer for X number of years or it’s the experience that your committee looks for in terms of what’s the background of the judge, have they undertaken serious consideration of constitutional questions. All those experiences are valued because our system is enriched by a variety of experiences.

And I don’t think that anybody quarrels with the fact that diversity on the bench is good for America. It’s good for America because we are the land of opportunity. And to the extent that we’re pursuing and showing that all groups can be lawyers and judges, that’s just reflecting the values of our society.

KYL: And if I could just interrupt you right now, to me, that’s the key. It’s good because it shows these young people that you’re talking to that, with a little hard work, it doesn’t matter where you came from. You can make it. And that’s why you hope to see them on the bench. I totally appreciate that.

The question though is whether you leave them with the impression that it’s good to make different decisions because of their ethnicity or gender. And it strikes me to you could have easily said in here now, of course, blind lady justice doesn’t permit us to base decisions in cases on our ethnicity or gender. We should strive very hard to set those aside when we can.

I found only one rather oblique reference in your speech that could be read to say that you warned against that. All of the other statements seemed to embrace it or, certainly, to recognize it and almost seem as if you’re powerless to do anything about it. I accept that this will happen, you said. So while I appreciate what you’re saying, it still doesn’t answer to me the question of whether you think that these -- that ethnicity or gender should be making a difference.

SOTOMAYOR: I -- there are two different, I believe, issues to address and to look at because various statements are being looked at and being tied together. But the speech, as its structured, didn’t intend to do that and didn’t do that.

Much of the speech about what differences there will be in judging was in the context of my saying or addressing an academic question. All the studies that you reference I cited in my -- in my speech were just that, studies. They were suggesting that there could be a difference. They were raising reasons why. I was inviting the students to think about that question.

Most of the quotes that you had and reference say that. We have to ask this question. Does it make a difference? And if it does, how? And the study about differences in outcomes was in that context.
That was a case in which three women judges went one way and two men went the other, but I didn’t suggest that that was driven by their gender. You can’t make that judgment until you see what the law actually said.

SOTOMAYOR: And I wasn’t talking about what law they were interpreting in that case. I was just talking about the academic question that one should ask.

KYL: If I could just interrupt, I think you just contradicted your speech because you said in the line before that, enough women and people of color in enough cases will make a difference in the process of judging.

Next comment, the Minnesota Supreme Court has given us an example of that. So you did cite that as an example of gender making a difference in judging.

Now, look, I’m not -- I -- I don’t want to be misunderstood here as disagreeing with a general look into question -- into the question of whether people’s gender, ethnicity or background in some way affects their -- their judging. I suspect you can make a very good case that that is true in some cases. You cite a case here for that proposition.

Neither you nor I probably know whether for sure that was the reason, but one could infer it from the decision that was rendered. And then you cite two other studies.

I am not questioning whether the studies are not valuable. In fact, I would agree with you that it’s important for us to be able to know these things so that we are on guard to set aside prejudices that we may not even know that we have.

Because when you do judge a case -- I mean, let me just go back in time. I tried a lot of cases, and it always depended on the luck of the draw, what judge you got; 99 times out of 100 it didn’t matter. So what we got? Judge Jones, fine. We got Judge Smith, fine. It didn’t matter, because you knew they would all apply the law.

In federal district court in Arizona, there was one judge you didn’t want to get. All -- all of the lawyers knew that, because they knew he had predilections that was really difficult for him to set aside. It’s a reality. And I suspect you’ve seen that on some courts, too.

So it is a good thing to examine whether or not those biases and prejudices exist in order to be on guard and to set them aside. The fault I have with your speech is that you not only don’t let these students know that you need to set it aside; you don’t say that that’s what you need this information for. But you’re almost celebrating. You think -- you say, if there are enough of us, we will make a difference, inferring that it is a good thing if we begin deciding cases differently.

Let me just ask you one last question here. I mean, can you -- have you ever seen a case where, to use your example, the wise Latina made a better decisions than the non-Latina judges?

SOTOMAYOR: No. What I’ve seen...(CROSSTALK)

KYL: I mean, I know you like all of your decisions, but...(UNKNOWN): (OFF-MIKE)

KYL: I was just saying that I know that she appreciates her own decisions, and I’m -- I don’t mean to denigrate her decisions, Mr. Chairman (inaudible)

SOTOMAYOR: I was using a rhetorical riff that hearkened back to Justice O’Connor, because her literal words and mine have a meaning that neither of us, if you were looking at it, in their exact words make any sense.

Justice O’Connor was a part of a court in which she greatly respected her colleagues. And yet those wise men -- I’m not going to use the other word -- and wise women did reach different conclusions in deciding cases. I never understood her to be attempting to say that that meant those people who disagreed with her were unwise or unfair judges.

SOTOMAYOR: As you know, my speech was intending to inspire the students to understand the richness that their backgrounds could bring to the judicial process in the same way that everybody else’s background does the same.

I think that’s what Justice Alito was referring to when he was asked questions by this committee and he said, you know, when I decide a case, I think about my Italian ancestors and their experiences coming to this country. I don’t think anybody thought that he was saying that that commanded the result in the case.

These were students and lawyers who I don’t think would have been misled, either by Justice O’Connor’s statement, or mine, in thinking that we actually intended to say that we could really make wiser and fairer decisions.

I think what they could think, and would think, is that I was talking about the value that life experiences have, in the words I used, to the process of judging. And that is the context in which I understood the speech to be doing.

The words I chose, taking the rhetorical flourish, it was a bad idea. I do understand that there are some who have read this differently, and I understand why they might have concern.

But I have repeated -- more than once -- and I will repeat throughout, if you look at my history on the bench, you will know that I do not believe that any ethnic, gender or race group has an advantage in sound judging. You noted that my speech actually said that. And I also believe that every person, regardless of their background and life experiences, can be good and wise judges.

LEAHY: In fact, if I might...

KYL: Excuse me. Just for the record, I don’t think it was your speech that said that, but that’s what you said in response to Senator Sessions’ question this morning.

LEAHY: When we get -- the reference is made to Justice Alito, that was on January 11, 2006.

KYL: What he said, “When I get a case” -- this is Justice Alito speaking -- “When I get a case about discrimination, I have to think about people in my own family who suffered discrimination, because of their ethnic background, or because of religion, or because of gender. And I do take that into account.”
We’ll take a 10-minute break.

(RECESS)

LEAHY: (OFF-MIKE) the photographers a chance -- all the photographers a chance to get back into -- into position. First off, Judge, I -- I compliment your -- your family. You can’t see them sitting behind you, because -- but they’ve all been sitting there very attentively. And I -- I have to think that, after a while, they probably would rather just be at home with you, but I do appreciate it. And -- and so we’re going to go to Senator Schumer, who did such a good job of introducing you yesterday. Senator Schumer?

SCHUMER: Thank you, Mr. Chairman. And thank all of my colleagues. First, I’m going to follow up on some of the line of questioning of Senator Sessions and Kyl, but I would like to first thank my Republican colleagues. I think the questioning has been strong, but respectful.

I’d also like to compliment you, Judge. I think you’ve made a great impression on America today. The American people have seen today what we have seen when you have met with us one on one.

You’re very smart and knowledgeable, but down to earth. You’re a strong person, but also very nice person. And you’ve covered the questions thoughtfully and modestly.

So now I’m going to go onto that line of question. We’ve heard you asked about snippets of statements that have been used to criticize you and challenge your impartiality, but we’ve heard precious little about the body and totality of your 17-year record on the bench, which everybody knows is the best way to evaluate a nominee.

In fact, no colleague has pointed to a single case in which you’ve said the court should change existing law, in which you’ve attempted to change existing law explicitly or otherwise, and I’ve never seen such a case anywhere in your long and extensive record.

So if a questioner is focusing on a few statements or, quote, “those few words” and doesn’t refer at all to the large body of cases where you’ve carefully applied the law regardless of sympathies, I don’t think that’s balanced or down the middle.

And by focusing on these few statements, rather than your extensive record, I think some of my colleagues are attempting to try and suggest that you might put your experiences and empathies ahead of the rule of law, but the record shows otherwise. And that’s what I now want to explore.

Now, from everything I’ve read in your judicial record and everything I’ve heard you say, you put rule of law first, but I want to clear it up for the record, so I want to talk to you a little bit about what having empathy means, and then I want to turn to your record on the bench, which I believe is the best way to get a sense of what your record will be on the bench in the future.

Now, I believe that empathy is the opposite of indifference, the opposite of, say, having ice water in your veins, rather than the opposite of neutrality. And I that’s the mistake in concept that some have used.
But let’s start with the basics. Will you commit to us today that you will give every litigant before the court a fair shake and that you will not let your personal sympathies toward any litigant overrule what the law requires?

SOTOMAYOR: That commitment I can make and have made for 17 years.

SCHUMER: OK. Well, good. Let’s turn to that record. I think your record shows extremely clearly that, even when you might have sympathy for the litigants in front of you, as a judge, your fidelity is first and foremost to the rule of law, because, as you know, in the courtroom of a judge who ruled based on empathy, not law, one would expect that the most sympathetic plaintiffs would always win, but that’s clearly not the case in your courtroom.

For example, in -- and I’m going to take a few cases here and go over them with you. For example, in In Re: Air Crash Off Long Island, which is sort of a tragic but interesting name for a case, you heard the case of families of the 213 victims of the tragic TWA crash, which we all know about in New York.
The relatives of the victims sued manufacturers of the airplane, which spontaneously combusted in midair, in order to get some modicum of relief, though, of course, nothing a court could do would make up for the loss of the loved ones. Did you have sympathy for those families?

SOTOMAYOR: All of America did. That was a loss of life that was traumatizing for New York state, because it happened off the shores of Long Island. And I know, senator, that you were heavily involved in ministering to the families...

SCHUMER: I was.

SOTOMAYOR: ... during that case.

SCHUMER: Right.

SOTOMAYOR: Everyone had sympathy for their loss. It was absolutely tragic.

SCHUMER: And many of them were poor families, many of them from your borough in the Bronx. I met with them. But ultimately, you ruled against them, didn’t you?

SOTOMAYOR: I didn’t author the majority opinion in that case. I dissented from the majority’s conclusion. But my dissent suggested that the court should have followed what I viewed as existing law, and reject their claims.

SCHUMER: Yes.

SOTOMAYOR: Or at least a portion of their claim.

SCHUMER: Right. Your dissent that, “the appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice, which should not be made by the courts.” Is that correct?

SOTOMAYOR: Yes, sir.

SCHUMER: And that’s exactly, I think, the point that my colleague from Arizona and others were making about how a judge should rule. How did you feel ruling against individuals who had clearly suffered a profound personal loss and tragedy, and were looking to the courts -- and to you -- for a sense of justice?

SOTOMAYOR: One, in as tragic, tragic, horrible situation like that, can’t feel anything but personal sense of regret. But those personal senses can’t command a result in a case.

As a judge, I serve the greater interest. And that greater interest is what the rule of law supplies.

As I mentioned in that case, it was fortuitous that there was a remedy. And that remedy, as I noted in my case, was Congress. And, in fact, very shortly after the 2nd Circuit’s opinion, Congress amended the law, giving the victims the remedies that they had sought before the court. And my dissent was just pointing out that, despite the great tragedy, that the rule of law commanded a different result.

SCHUMER: And it was probably very hard, but you had to do it. Here’s another case, Washington v. County of Rockland -- Rockland is a county, a suburb of New York -- which was a case involving black corrections officers who claimed that they were retaliated against after filing discrimination claims. Remember that case?

SOTOMAYOR: I do.

SCHUMER: Did you have sympathy for the officers filing that case?

SOTOMAYOR: Well, to the extent that anyone believes that they’ve been discriminated on the basis of race, that not only violates the law, but one would have -- I wouldn’t use the word “sympathy” -- but one would have a sense that this claim is of some importance, and one that the court should very seriously consider.

SCHUMER: Right. Because, I’m sure, like Judge Alito said, and others, you had suffered discrimination in your life as well. So, you could understand how they might feel, whether they were right or wrong in the outcome, in the -- in the -- in filing.

SOTOMAYOR: I’ve been more fortunate than most. The discrimination that I have felt has not been as life-altering as it has for others. But I certainly do understand it, because it is a part of life that I’m familiar with and have seen others suffer so much with, as I have in my situation.

SCHUMER: Now, let me ask you again. How did you feel ruling against law enforcement officers, the kind of people you’ve told us repeatedly you’ve spent your career working with DA’s office and elsewhere, and for whom you have tremendous respect?

SOTOMAYOR: As with all cases where I might have a feeling of some identification with, because of background or because of experiences, one feels a sense of understanding what they have experienced. But in that case, as in the TWA case, the ruling that I endorsed against them was required by law.

SCHUMER: Here’s another one. It was called Boykin v. Keycorp. It was a case in which an African-American woman filed suit after being denied a home equity loan, even after her loan application was conditionally approved based on her credit report. She claimed that she was denied the opportunity to own a home, because of her race, her sex and the fact that her perspective home was in a minority- concentrated neighborhood. She didn’t even have a lawyer or anyone else to interpret the procedural rules for her. She filed this suit on her own. Did you sympathy for the woman seeking a home loan from the bank?

SOTOMAYOR: Clearly, everyone has sympathy for an individual who wants to own their own home. That’s the typical dream and aspiration, I think, of most Americans. And -- and if someone is denied that chance for a reason that they believe is improper, one would recognize and understand their feelings.

SCHUMER: Right. And in fact, you ruled that her claim wasn’t timely. Rather than overlooking the procedural problems with the case, you held fast to the complicated rules that keep our system working efficiently, even if it meant that claims of discrimination could not be heard. We never got to whether she was actually discriminated against, because she didn’t file in a timely manner. Is...

SOTOMAYOR: I...

SCHUMER: Is my summation there accurate? You want to elaborate?

SOTOMAYOR: Yes, in terms of the part of the claim that -- that we held was barred by the statute of limitations. In my -- in a response to the earlier question -- to an earlier question, I indicated that the law requires some finality. And that’s why Congress passes or state legislature passes statutes of limitations that require people to bring their claims within certain time frames. Those are statutes, and they must be followed if a situation -- if they apply to a particular situation.

SCHUMER: Finally, let’s look at a case that cuts the other way with a pretty repugnant litigant. This is the case called Pappas v. Giuliani. And you considered claims of a police employee who was fired for distributing terribly bigoted and racist materials. First, what did you think of the speech in question that this officer was distributing?

SOTOMAYOR: Nobody, including the police officer, was claiming that the speech wasn’t offensive, racist and insulting. There was a question about what his purpose was in sending the letter.
But my opinion dissent in that case pointed out that offensiveness and racism of the letter, but I -- I issued a dissent from the majority’s affirmance of his dismissal from the police department because of those letters.

SCHUMER: Right. As I understand it, you wrote that what the actual literature that the police officer was distributing was, quote, “patently offensive, hateful and insulting.” But you also noted that, quote -- and this is your words in a dissent, where the majority was on the other side -- quote, “Three decades of jurisprudence and the centrality of First Amendment freedoms in our lives,” that’s your quote, the employee’s right to speech had to be respected.

SOTOMAYOR: In the situation of that case, that was the position that I took because that’s what I believed the law commanded.

SCHUMER: Even though, obviously, you wouldn’t have much sympathy or empathy for this officer or his actions. Is that correct?

SOTOMAYOR: I don’t think anyone has sympathy for what was undisputedly a racist statement, but the First Amendment commands that we respect people’s rights to engage in hateful speech.

SCHUMER: Right. Now, I’m just going to go to a group of cases here rather than one individual case. We could go -- we could go -- we could do this all day long where sympathy, empathy would be on one side, but you found rule of law on the other side and you sided with rule of law.

And so, you know, again, to me, analyzing a speech and taking words maybe out of context doesn’t come close to analyzing the cases as to what kind of judge you’ll be, and that’s what I’m trying to do here.

Now, this one -- my office conducted an analysis of your record in immigration cases, as well as the record of your colleagues. And in conducting this analysis, I came across a case entitled Jian v. Board of Immigration Appeals (ph), where your colleague said something very interesting. This was Judge Jon Newman. He’s a very respected judge on your circuit.

He said something very interesting when discussing asylum cases. Specifically, he said the following. This is Judge Newman. Quote, “We know of no way to apply precise calibers to all asylum cases so that any particular finding would be viewed by any -- any 3 of the 23 judges of this court as either sustainable or not sustainable. Panels will have to do what judges always do in similar circumstances: apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the administrative decision and the record assembled to support it.”

In effect, what Judge Newman is saying is these cases would entertain more subjectivity, let’s say, because, as he said, you could -- you could side many of them as sustainable or not sustainable.

SCHUMER: So given the subjectivity that exists in the asylum cases, it’s clear that if you wanted to be, quote, “an activist judge,” you could certainly have found ways to rule in favor of sympathetic asylum-seekers even when the rule of law might have been more murky and not have dictated an exact result.

Yet, in the nearly 850 cases you have decided in the Second Circuit, you ruled in favor of the government -- that is, against the petitioner seeking asylum, the immigrant seeking asylum -- 83 percent of the time.

That happens to be the exact statistical median rate for your court. It’s not one way or the other.
This means that, with regard to immigration, you are neither more liberal nor more conservative than your colleagues. You simply did what Judge Newman said. You applied your best judgment to the record at hand.

Now, can you discuss your approach to immigration cases, explain to this panel and the American people the flexibility that judges have in this context, and your use of this flexibility in a very moderate manner?

SOTOMAYOR: Reasonable judges look at the same set of facts and may disagree on what those facts should result in. It hearkens back to the question of wise men and wise women being judges.

Reasonable people disagree. That was my understanding of Judge Newman’s comment in the quotation you made.

In immigration cases, we have a different level of review, because it’s not the judge making the decision whether to grant or not grant asylum. It’s an administrative body.

And I know that I will -- I’m being a little inexact, but I think using old terminology is better than using new terminology. And by that I mean, the agency that most people know as the Bureau of Immigration has a new name now, but that it’s more descriptive than its new name.

SCHUMER: ICE. Some people think the new name’s descriptive, but that’s...(LAUGHTER)

SOTOMAYOR: In immigration cases, an asylum seeker has an opportunity to present his or her case before an immigration judge. They then can appeal to the Bureau of Immigration and argue that there was some procedural default (ph) below (ph), or that the immigration judge or the bureau itself has committed some error of law.

They then are entitled by law to appeal directly to the 2nd Circuit. In those cases, because they are administrative decisions, we are required under the Chevron doctrine, and other tests in administrative law, to give deference to those decisions.

But like with all processes, there are occasions when processes are not followed, and an appellate court has to ensure that the rights of the asylum seeker have been -- whatever those rights may be -- have been given. There are other situations in which an administrative body hasn’t adequately explained its reasoning. There are other situations where administrative bodies have actually applied erroneous law.

No institution is perfect. And so, that accounts for why, given the deference -- and I’m assuming your statistic is right, senator, because I don’t add up the numbers. OK?

SOTOMAYOR: But I do know that in immigration cases, the vast majority of the Bureau of Investigation cases are -- the petitions for review are denied. So, that means that...

SCHUMER: Right. The only point I’m making here, if some are seeking to suggest that your empathy or sympathy overrules rule of law, this is a pretty good body of law to look at. A, it’s a lot of cases, 850. B, one would think -- I’m not going to ask you to state it -- that you’ll have sympathy for immigrants and immigration. And, third, there is some degree of flexibility here, as Judge Newman said, just because of the way the law is. And yet you are exactly in the middle of the Second Circuit.

If empathy were governing you, I don’t think you would have ended up in that position, but I’ll let everybody judge whether that’s true. But the bottom line here, in the air crash case, in Washington, in Boykin (ph), in this whole mass of asylum cases, you probably had sympathy for many of the litigants, if not all of them, ruled against them.

The cases we’ve just discussed are just a sampling of your lengthy record, but they do an effective job of illustrating the fact that, in your courtroom, rule of law always triumphs.

And would you agree? I mean, that seems to me, looking at your record. You know it much better than I do, that rule of law triumphing probably best characterizes your record as your 17 years as a judge.

SOTOMAYOR: I firmly believe in the fidelity to the law. In every case I approach, I start from that working proposition and apply the law to the facts before us.

SCHUMER: And has there ever been a case in which you ruled in favor of a litigant simply because you were sympathetic to their plight, even if rule of law might not have led you in that direction?

SOTOMAYOR: Never.

SCHUMER: Thank you. Let’s go on here a little bit to foreign law, which is an issue that has also been discussed. Your critics have tried to imply that you’ll improperly consider foreign law and sources in cases before you. You gave a speech in April that’s been selectively quoted. Discussing whether it’s permissible to use foreign law or international law to decide cases, you stated clearly that, quote, “American analytic principles do not permit us” -- that’s your quote -- “to do so.”

Just so the record is 100 percent clear, what do you believe is the appropriate role of any foreign law in the U.S. courts?

SOTOMAYOR: American law does not permit the use of foreign law or international law to interpret the Constitution. That’s a given. And my speech explained that, as you noted, explicitly. There is no debate on that question; there’s no issue about that question.

The question is a different one because there are situations in which American law tells you to look at international or foreign law. And my speech was talking to the audience about that. And, in fact, I pointed out that there are some situations in which courts are commanded by American law to look at what others are doing.

So, for example, if the U.S. is a party to a treaty and there’s a question of what the treaty means, then courts routinely look at how other courts of parties who are signatures are interpreting that.

SOTOMAYOR: There are some U.S. laws that say you have to look at foreign law to determine the issue. So, for example, if two parties have signed a contract in another country that’s going to be done in that other country, then American law would say, you may have to look at that foreign law to determine the contract issue.

The question of use of foreign law then is different than considering the ideas that it may on an academic level, provide. Judges -- and I -- I’m not using my words. I’m using Justice Ginsberg’s words. You build up your story of knowledge as a person, as a judge, as a human being with everything you read.

For judges, that includes law review articles. And there are some judges who have opined negatively about that. OK? You use decisions from other courts. You build up your story of knowledge. It is important in the speech I gave, a noted and agreed with Justices Scalia and Thomas that one has to think about this situation very carefully because there are so much differences in foreign law from American law. But that was the setting up my speech and the discussion that my speech was addressing.

SCHUMER: Right. And you’ve never relied on a foreign court to interpret U.S. law nor would you?

SOTOMAYOR: In fact, I know that, in my 17 years on the bench, other than applying it in treaty interpretation or conflicts of law situations, that I’ve not cited foreign law.

SCHUMER: Right. And it is important American judges consider many nonbinding sources when reaching a determination. For instance, consider Justice Scalia’s well-known regard for dictionary definitions in determining the meaning of words or phrasing or statutes being interpreted by a court.

In one case, MCI vs. AT&T, that’s a pretty famous case, Justice Scalia cited not one but five different dictionaries to establish the meaning of the word “modify” in a statute. Would you agree that dictionaries are not binding on American judges?

SOTOMAYOR: They’re a tool to help up in some situations to interpret what is meant by the words that Congress or a legislature uses. SCHUMER: Right. Right. So it was not improper for Justice Scalia to consider dictionary definitions, but they’re not binding. Same as citing a foreign law as long as you don’t make it binding on the case?

SOTOMAYOR: Yes. Well, foreign law, except in the situation...

SCHUMER: Of treaties.

SOTOMAYOR: And even then is not binding. It’s American principles of construction that are binding.

SCHUMER: Right. OK. Good. Now, we’ll go to a little easier topic since we’re close to the end here. It’s a topic that you like and I like. And that is we’ve heard a lot of discussions about baseball in metaphorical terms. Judges as umpires. We had a lot of that yesterday, a little of that today. But I want to talk about baseball a little more concretely. First, am I correct you share my love for America’s pastime?

SOTOMAYOR: It’s often said that I grew up in the shadow of Yankee Stadium. To be more accurate, I grew up sitting next to my dad, while he was alive, watching baseball.

SCHUMER: OK.

SOTOMAYOR: And it’s one of my fondest memories of him.

SCHUMER: So given that you give near Yankee Stadium and you’re from the Bronx, I was going ask you are you a Mets or Yankee fan, but I guess you’ve answered that. Right?

LEAHY: Be careful. You want to keep the chairman on your side. (LAUGHTER)

SCHUMER: No, no. As much as Judge Scalia (sic) might want to be nominated, I don’t think she would adapt the Red Sox as her team, as you have, Mr. Chairman. (LAUGHTER) Judge Sotomayor, I’m sorry. Who did I say?

LEAHY: Scalia.

SCHUMER: Oh. (LAUGHTER) I don’t want what Judge Scalia -- who Judge Scalia roots for, but I know who Judge Sotomayor roots for.

SOTOMAYOR: I know many residents of Washington, D.C. have asked me to look at the Senators for...

SCHUMER: Anyway, I do want to talk, ask you just about the 1995 player strike case, which comes up, but it’s an interesting case for everybody. And I don’t think -- you won’t -- you won’t have to worry about talking about it, because I don’t think the Mets vs. Yankees will come up or the Red Sox vs. the Yankees will come up before the courts, although the Yankees could use all the help they can get right now.

But could you tell us a little bit about the case and why you listed it in your questionnaire that you filled out as one of your 10 most important cases? And that will be my last question, Mr. Chairman.

SOTOMAYOR: That was -- and people often forget how important some legal challenges seem before judges decide the case. Before the case was decided, all of the academics and all of newspapers and others talking about the case were talking about the novel theory that the baseball owners had developed in challenging the collective bargaining rights of players and owners.

In that case, as with all the cases that I approach, I look at what the law is, what precedent says about it, and I try to discern in a new factual challenge how the principles apply. And that’s the process I used in that case. And it became clear to me after looking at that case that that process led to affirming the decision of the national labor relationships board that it could and should issue an injunction on the grounds that it claimed. So that, too, was a case where there’s a new argument, a new claim, but where the application of the law came from taking the principles of the law and applying it to that new claim.

LEAHY: Thank you very much, Senator Schumer. Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

LEAHY: And then we’ll go to Senator Durbin.

GRAHAM: OK. Thank you, Judge. I know it’s been a long day, and we’ll try to keep it moving here. I think you’re one senator after me away from taking a break.

My problem, quite frankly, is that, as Senator Schumer indicated, the cases that you’ve been involved in to me are left of center, but not anything that jumps out at -- at me, but the speeches really do.

I mean, the speech you gave to the ACLU about foreign law, we’ll talk about that probably in the next round, was pretty disturbing. And I keep talking about these speeches because what I’m -- and I listen to you today. I think I’m listening to Judge Roberts.

I mean, I’m, you know, listening to a strict constructionist here, so we’ve got to reconcile in our own minds here to put the puzzle together to go that last mile, is that you got Judge Sotomayor, who has come a long way and done a lot of things that every American should be proud of.

You’ve got a judge who has been on a circuit court for a dozen years. Some of the things trouble me, generally speaking left of center, but within the mainstream, and you have these speeches that just blow me away. Don’t become a speechwriter, if this law thing doesn’t work out, because these speeches really throw a wrinkle into everything.

GRAHAM: And that’s what we’re trying to figure out. Who are we getting here? You know, who are we getting as a nation? Now, legal realism, are you familiar with that term?

SOTOMAYOR: I am.

GRAHAM: What does it mean for someone who may be watching the hearing?

SOTOMAYOR: To me, it means that you are guided in reaching decisions in law by the realism of the situation, of the -- it’s less -- it looks at the law through the...

GRAHAM: Kind of touchy-feely stuff?

SOTOMAYOR: That’s not quite words that I would use because there are many academics and judges who have talked about being legal realists, but I don’t apply that label to myself at all.
As I said, I look at law and precedent and discern its principles and apply it to the situation...

GRAHAM: So you would not be a disciple of the legal realism school?

SOTOMAYOR: No.

GRAHAM:: OK. All right. Would you be considered a strict constructionist in your own mind?

SOTOMAYOR: I don’t use labels to describe what I do. There’s been much discussion today about what various labels mean and don’t mean. Each person uses those labels and gives it their own sense of...

GRAHAM: When Judge Rehnquist says he was a strict constructionist, did you know what he was talking about?

SOTOMAYOR: I think I understood what he was referencing, but his use is not how I go about looking at...

GRAHAM: What does strict constructionism mean to you?

SOTOMAYOR: Well, it means that you look at the Constitution as its written or statutes as they’re written and you apply them exactly by the words.

GRAHAM: Right. Would you be an originalist?

SOTOMAYOR: Again, I don’t use labels. And because...

GRAHAM: What is an originalist?

SOTOMAYOR: In my understanding, an originalist is someone who looks at what the founding fathers intended and what the situation confronting them was, and you use that to determine every situation presented -- not every but most situations presented by the Constitution.

GRAHAM: Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it’s lasted 200 years. The Constitution has not changed except by amendment. It is a process -- an amendment process that is set forth in the document.

It doesn’t live other than to be timeless by the expression of what it says. What changes is society. What changes is what facts a judge may get presented...

GRAHAM: What’s the best way for society to change, generally speaking? What’s the most legitimate way for a society to change?

SOTOMAYOR: I don’t know if I can use the words “change.” Society changes because there’s been new development in technology, medicine, in -- in society growing.

GRAHAM: Do you think judges -- do you think judges have changed society by some of the landmark decisions in the last 40 years?

SOTOMAYOR: Well, in the last few years?

GRAHAM: 40 years.

SOTOMAYOR: I’m sorry. You said...

GRAHAM: 40, I’m sorry. 40. Do you think Roe v. Wade changed American society?

SOTOMAYOR: Roe v. Wade looked at the Constitution and decided that the Constitution, as applied to a claim’s right, applied.

GRAHAM Is there anything in the Constitution that says a state legislator or the Congress cannot regulate abortion or the definition of life in the first trimester?

SOTOMAYOR: The holding of the Court as...

GRAHAM: I’m asking the Constitution. Does the Constitution, as written, prohibit a legislative body at state or federal level from defining life or relating the rights of the unborn or protecting the rights of the unborn in the first trimester?

SOTOMAYOR: The Constitution in the 14th Amendment, has a...

GRAHAM: I’m sorry. Is there anything in the document written about abortion?

SOTOMAYOR: The word “abortion” is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process...

GRAHAM: And that gets us to the speeches. That broad provision of the Constitution that’s taken us from no written prohibition protecting the unborn, no written statement that you can’t voluntarily pray in school, and on and on and on and on, and that’s what drives us here, quite frankly. That’s my concern. And when we talk about balls and strikes, maybe that’s not the right way to talk about it.

But a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that’s disturbing. Can you understand how people may feel that way?

SOTOMAYOR: Certainly, sir.

GRAHAM: OK. Now, let’s talk about you. I like you, by the way, for whatever that matters. Since I may vote for you that ought to matter to you. One thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. And here’s what they said about you.

She’s a terror on the bench. She’s temperamental, excitable, she seems angry. She’s overall aggressive, not very judicial. She does not have a very good temperament. She abuses lawyers. She really lacks judicial temperament. She believes in an out -- she behaves in an out-of-control manner. She makes inappropriate outbursts. She’s nasty to lawyers. She will attack lawyers for making an argument she does not like. She can be a bit of a bully.

When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?

SOTOMAYOR: I do ask tough questions at oral arguments.

GRAHAM: Are you the only one that asks tough questions in oral arguments? More to come

Members: SPEAKERS: SEN. PATRICK J. LEAHY, D-VT. CHAIRMAN; SEN. HERB KOHL, D-WIS.; SEN. DIANNE FEINSTEIN, D-CALIF.; SEN. RUSS FEINGOLD, D-WIS.; SEN. CHARLES E. SCHUMER, D-N.Y.; SEN. RICHARD J. DURBIN, D-ILL.; SEN. SHELDON WHITEHOUSE, D-R.I.; SEN. BENJAMIN L. CARDIN, D-MD.; SEN. RON WYDEN, D-ORE.; SEN. AMY KLOBUCHAR, D-MINN.; SEN. EDWARD E. “TED” KAUFMAN, D-DEL.; SEN. ARLEN SPECTER, D-PA.; SEN. AL FRANKEN, D-MINN.;
SEN. JEFF SESSIONS, R-ALA.; RANKING MEMBER SEN. ORRIN G. HATCH, R-UTAH; SEN. CHARLES E. GRASSLEY, R-IOWA; SEN. JON KYL, R-ARIZ.; SEN. LINDSEY GRAHAM, R-S.C.; SEN. JOHN CORNYN, R-TEXAS; SEN. TOM COBURN, R-OKLA.
WITNESSES: JUDGE SONIA SOTOMAYOR, NOMINATED TO BE AN ASSOCIATE JUSTICE OF THE U.S. SUPREME COURT.