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Sotomayor hearings: The complete transcript -- Part 3

July 14, 2009 | 12:51 pm

The Supreme Court of the United States

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 3 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.

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

Monday, 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 by clicking right here.

Part 4 of the transcript is available here.

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

(UPDATE: We've added a video highlight below, courtesy of C-SPAN.)

-- Andrew Malcolm

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FEINSTEIN: Thank you very much. This is really very relevant to what we do, and we have often discussed this Jackson case, or the steel case, but we just recently passed a Foreign Intelligence Surveillance Act. And one of the amendments -- because I did the amendment -- was to strengthen the exclusivity clause of the law, which has been in the bill since the beginning, but that there are no exceptions from....

...which the president can leave the four corners of this bill. So it will remain to be seen how that works out, over time, but I can certainly say to you that it's a most important consideration as we looked at these matters of national security.

So let me ask you this: you joined a Second Circuit opinion last year that held that the executive should not forbid companies that receive national security letters to tell the public about those letters.

The panel's opinion in the case said, quote, "The national security context in which NSLs" -- national security letters -- "are authorized imposes on courts a significant obligation to defer to the judgments of executive branch officials," end quote, but also that "Under no circumstance should the judiciary become the handmaiden of the executive," end quote. That's Doe v. Mukasey.

Given that the executive branch has responsibility for protecting the national security, how should courts balance the executive branch's expertise in national security matters with the judicial branch's constitutional duty to enforce the Constitution and prevent abuse of power?

SOTOMAYOR: I can talk about what we did in Doe as reflective of the approach that I took and joined in that case. It's difficult to talk about an absolute approach in any case because each case presents its own actions by parties and its own set of competing considerations often.

In Doe, the district court had invalidated a congressional statue altogether, reasoning that the statute violated the Constitution in a number of different ways and that those violations did not authorize Congress to act in the manner it did.

As the panel said in that decision, recognizing that deference to the executive is important in national security questions, and that deference to congress, because the court was -- district court was invalidating an act of Congress, that we had, as an appellate court, to be very cautious about what we were doing in this area and to balance and keep consistent with constitutional requirements the actions that were being taken.

SOTOMAYOR: Giving that due deference, we upheld to most of the statute, and what we did was address two provisions of the statute that didn't pass, in our judgment, constitutional muster. One of them was that the law, as Supreme Court precedent had commanded, required that if the government was going to stop an individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step.

The statute, instead, required the individual who was restricted to come and challenge the restriction. We said, "No, government's acting. You have a right to speak." If you have a right to speak, you should know what the grounds for that right are and you should be told or brought to court to be given an opportunity to have that restriction lifted.

The other was a question of who bore the burden of supporting that restriction, and the statute held that it was the individual who was being burdened who had to prove that there wasn't a reason for it. The government agreed with our court that that burden violated Supreme Court precedent and the premises of freedom of speech and agreed that the burden should not be that way and we read the statute to explain what the proper burden was.

There is, in all of these cases, a balance and deference that's needed to be given to the executive and to Congress in certain situations, but we are a court that the protects the Constitution and the rights of individuals under it and we must ensure and act with caution whenever reviewing a claim before us.

FEINSTEIN: Thank you very much. One question on the commerce clause in the Constitution. That clause, as you well know, is used to pass laws in a variety of contexts, from protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples.

When I questioned now Chief Justice Roberts, I talked about how, for 60 years, the court did not strike down a single federal law for exceeding congressional power under the commerce clause. In the last decade, however, the court has changed its interpretation of the commerce clause and struck down more than three dozen cases. My question to the chief justice and now to you is: do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?


FEINSTEIN: Generally, not relating to any one case.

SOTOMAYOR: No, I know. But the question assumes a prejudgment by me of what's an appropriate approach or not in a new case that may come before me as a second circuit judge or, again, if I'm fortunate enough to be a justice on the Supreme Court.

So it's not a case I can answer in a broad statement. I can say that the court, in reviewing congressional acts as it relates to an exercise of powers under the commerce clause, has looked at a wide variety of factors and considered that in different areas.

But there is a framework that those cases have addressed and that framework would have to be considered with respect to each case that comes before the court.

SOTOMAYOR: Now, I know that you mentioned the number of different cases and if you have one in particular that concerns you, perhaps I could talk about what the framework is that the court established in those cases.

FEINSTEIN: All right. I'll give you one very quickly: restricting the distance that somebody could bring a gun close to a school.

SOTOMAYOR: Well, the gun-free zones school act, which the court struck down in Lopez...

FEINSTEIN: Right, Lopez.

SOTOMAYOR: ... in that case and in some of its subsequent cases, the court was examining, as I mentioned, a wide variety of factors. They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision to -- as an element of the crime, and then considered whether there was a substantial effect on commerce.

It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that the Constitution -- that that particular statute was within Congress's powers.

That's the basic approach it has used to other statutes it has looked at. I would note that its most recent case in this area, the Raich case, the court did upheld a crime that was non-economic, in the sense of that it involved just the possession of marijuana. And there, it looked at the broader statute in which that provision was passed and the intent of Congress to regulate a market in illegal drugs.

So the broad principles established in those cases have been the court's precedent. Its most recent holding suggested another factor for courts to look at in each situation will provide a unique factual setting that the court will apply those principles to.

FEINSTEIN: One last question on that point. One of the main concerns is that this interpretation, which is much more restrictive now, could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act, or anything that we might even do in cap and trade.

SOTOMAYOR: Oh, in fact, there are cases pending before the courts raising those arguments. And so those are issues that the courts are addressing. I can't speak much more...

FEINSTEIN: Right, I understand.

SOTOMAYOR: ... further than that because of the restrictions on me.

FEINSTEIN: It's just that Congress has to have the ability to legislate. And in those general areas, it's the commerce clause that enables that legislation.

Now, as you pointed out, we did revise the gun -- and make -- the Lopez case -- and make specific findings and perhaps, you know, with more care toward the actual findings that bring about the legislative conclusion, that we might be able to continue to legislate in these areas.

FEINSTEIN: But my hope is that you would go to the court with the sensitivity that this body has to be able to legislate in those areas. They involve all of the states. And they're very important questions involving people's well-being, control of the environment, the air, the water, et cetera.

SOTOMAYOR: I do believe that in all of the cases the court has addressed this issue that it pays particular attention to congressional findings. I know that individuals may disagree with what the court has done in individual cases. But it has never disavowed the importance of deference to legislative findings with respect to legislation that it's passing within its powers under the Constitution.

FEINSTEIN: Thank you. I wish you best of luck.

SOTOMAYOR: Thank you.

FEINSTEIN: Thank you very much.

SESSIONS: Mr. Chairman, I correct one thing. I said I had a letter earlier from Miguel Estrada. That was not correct. It wasn't a letter. Thank you.

LEAHY: Yes, if we could have a copy of whatever you put in the...


LEAHY: I did send Mr. Estrada a note last night because I had (inaudible) something I said about him I wanted to let him know that.

SESSIONS: Well, we both made an error talking about him.

LEAHY: OK. Well -- but then one thing we should remember that Mr. Estrada is not the nominee here. Just as with all the statements made about President Obama's philosophy, his confirmation hearing was last November, not now. It's just you, Judge Sotomayor. And have a good lunch. And we will come back.
I'm trying to think who's next. Senator Grassley will be recognized when we come back in. And we will start right at 2:00. Chuck? OK. This hearing is in recess.


LEAHY: Judge, I once on a television interview said, if I could do what -- anything I wanted to do in life, I said, "Well, if I ever have to work for a living, I want to be a photographer," because I do, at which point, two minutes after the interview, the phone rang. My mom was still alive. She called. She said, "Don't you ever say that. They'll think you don't work."  (LAUGHTER) Actually, I don't. I just recognize senators here. You're doing all of the work. And I -- I appreciate the way you're doing it.

I turn next to -- to Senator Grassley. Then, after Senator Grassley, to Senator Feingold.
Senator Grassley?

GRASSLEY: Welcome once again, Judge. I hope you had a good break. And I appreciate very much the opportunity to ask you some questions.I'd like to start off my round with some questions about your understanding of individual property rights and how they're protected by the Constitution.

And let me say, as I observe property rights around the world, there's a big difference between developed nations and developing nations. And respect for private property has a great deal to do with the advancement of societies.

So I believe all Americans care about this right. They want to protect their homes and anything they own from unlawful taking by government. But this is also a right that is important for agricultural interests. As you know, besides being a senator, I come from an agricultural state in Iowa and am a farmer, as well.

I'm sure that ordinary Americans, besides the economic interests that might be involved, are all very well concerned about where you stand on property rights. So some of these issues have been discussed, but I want to go into a little more depth on Kelo as an example.

Could you explain what your understanding is of the state of the Fifth Amendment's taking cause jurisprudence after the Supreme Court decision in Kelo? Senator Brownback said this aptly when Chief Justice Roberts was before this committee: Quote, "Isn't it now the case that it is much easier for one man's home to become another man's castle?" Your general understanding of the takings clause?

SOTOMAYOR: Good afternoon, Senator Grassley. And it's wonderful to see you again.

GRASSLEY: Thank you.

SOTOMAYOR: I share your view of the importance of property rights under the Constitution. As you know, I was a commercial litigator that represented national and international companies, and it wasn't even the case that it was a difference between developed and underdeveloped countries.
Many of my clients who were from developed countries chose to -- in part, to invest in the United States because of the respect that our Constitution pays to property rights in its various positions, in its various amendments.

With respect to the Kelo question, the issue in Kelo, as I understand it, is whether or not a state who had determined that there was a public purpose to the takings under the -- the takings clause of the Constitution that requires the payment of just compensation when something is -- is condemned for use by the government, whether the takings clause permitted the state, once it's made a proper determination of public purpose and use, according to the law, whether the state could then have a private developer do that public act, in essence. Could they contract with a private developer to effect the public purpose?
And so the holding as I understood it in Kelo was a question addressed to that issue.

SOTOMAYOR: With respect to the importance of property rights and the process that the state must use, I just point out to you that in -- in another case involving that issue that came before me in a particular series of cases that I had involving a village in New York, that I -- I ruled in favor of the property rights -- the property owner's rights to challenge the process that the state had followed in his case and to hold that the state had not given him adequate notice of their intent to use the property -- well, not adequate notice not to use the property, but to be more precise, that they hadn't given him an adequate opportunity to express his objection to the public taking in that case.

GRASSLEY: Could I zero in on two words in the Kelo case? The Constitution uses the word use, public use. Where as the Kelo case talked about taking private property for public purpose. In your opinion, is public use and public purpose the same thing?

SOTOMAYOR: Well, as I understood the Supreme Court's decision in Kelo, it was looking at the court's precedence over time and determining that its precedence had suggested that the two informed each other, that public purpose in terms of developing an area that would have a public improvement and use that the two would inform each other.

GRASSLEY: Do you believe that the Supreme Court overstepped their constitutional authorities when they went beyond the words of the Constitution, in other words, to the word purpose, and thus expanded the ability of government to take an individual's private property? Because I think everybody believes that Kelo was an expansion of previous precedent there.

SOTOMAYOR: I know that there are many litigants who have expressed that view. And, in fact, there has been many state legislators that have passed state legislation not permitting state governments to take in the situation that the Supreme Court approved of in Kelo. The question of whether the Supreme Court overstepped the Constitution, as I've indicated, the court, at least my understanding of the majority's opinion, believed and explained why it thought not.

I have to accept because it is precedent that as precedent. And so, I can't comment further than to say that I understand the questions and I understand what state legislatures have done and would have to await another situation, or the court would, to apply the holding in that case.

GRASSLEY: Then I think that answers my next question. But it was going to be to ask you whether you think that Kelo improperly undermines the constitutionally-protected private property rights. I presume you're saying that you believe that's what the court said and it doesn't undermine property rights.

SOTOMAYOR: I can only talk about what the -- the courts said in the context of that particular case and to explain that it is the court's holding. And so, it's entitled to stare decisis effect and deference.


SOTOMAYOR: But the extent of that has to await the next step, the next cases.

GRASSLEY: OK. Well, then maybe it would be fair for me to ask you what is your understanding of the constitutional limitations then on government entity -- any government entity taking land for public purpose?

SOTOMAYOR: Well, that was the subject of much discussion in the Kelo case among the justices. And with certain justices in the dissent hypothesizing that the limits were difficult to see, the majority taking the position that there were limits. As I've indicated to you, opining on a hypothetical is very, very difficult for a judge to do.


SOTOMAYOR: And as a potential justice on the Supreme Court but, more importantly, as a Second Circuit judge still sitting, I can't engage in a question that involves hypotheses.

GRASSLEY: Right. Let me ask you a couple obvious then. Does the Constitution allow for takings without any compensation?

SOTOMAYOR: Well, the Constitution provides when the government takes it has to pay compensation. As you know, the question of what constitutes an actual taking is a very complex one because there is a difference between taking a home and regulation that may or may not constitute a taking. It's -- so I'm not at all trying to not answer your question.

GRASSLEY: OK. Well, then let me ask you another question. Maybe you can't answer it. Would you strike down a taking that provided no compensation at all?

SOTOMAYOR: Well, as I explained, if the taking violates the Constitution, I would be required to strike it down.

GRASSLEY: Let me move on to the Didden case v. the Village of Port Chester. It raised serious concerns about whether you understand the protection provided by the Constitution for individual property rights. In this case, Mr. Didden alleged that his local village government violated his Fifth Amendment rights when it took his property to build a national chain drugstore. At the meeting with the government agency, another developer, Mr. Didden was told that he could give the developer $800,000 or a 50 percent interest in his pharmacy project. And if Mr. Didden did not accept either condition, the government would simply take his property.

Two days after Mr. Didden refused to comply with these demands, the government began proceeding to take his land. The district court denied Mr. Didden his day in court, and your panel affirmed that decision in a five-paragraph opinion. Why did you deny Mr. Didden his day in court? How can these facts, in essence, allegations of extortion at least not warrant the opportunity to call witnesses to see if Mr. Didden was telling an accurate story?

SOTOMAYOR: The Didden case presented a narrow issue that the court below...

LEAHY: Officer, remove that man immediately.


LEAHY: We will stand in order...


LEAHY: We will stand in order...


LEAHY: Officers, you will remove that man.


LEAHY: You know...(LAUGHTER) And they did. And they did.

LEAHY: Again, both Senator Session is and I have said, as all previous chairs and ranking members of this have said, this is a hearing of the United States Senate. The judge deserves respect. Senators in asking questions deserve respect.

I will order the removal of anyone who disrupts it, whether they're supportive of the nominee or opposed to the nominee, whether they're supportive of a position I take or opposed to it. We will have the respect that should be accorded to both the nominee and to the United States Senate.

SESSIONS: Thank you, Mr. Chairman. I think you've handled this well throughout, and I support you 100 percent.

LEAHY: Thank you. Senator -- Senator Grassley, we did stop the clock, so it did not take from your time.
GRASSLEY: Thank you. People always say I have the ability to turn people on. (LAUGHTER) Maybe you could start over again with your -- with your sentence, please.

(UNKNOWN): Where were we?

SOTOMAYOR: I hope I remember where we were.


SOTOMAYOR: Senator, the right of property owners to have their day in court is a very important one, but there is a corollary to the right to have your day in court, which is that you have to bring it to court in a timely manner...


SOTOMAYOR: ... because people who are relying on your assertion of rights should know when you're going to make them. And so there's a doctrine called the statute of limitations that says if a party knows or has reason to know of their injury, then that party has to come in to court and raise their arguments within that statute that sets the limits of the action. GRASSLEY: I...
SOTOMAYOR: In the -- oh, I'm sorry.

GRASSLEY: No, no, no...

SOTOMAYOR: No, no, no.

GRASSLEY: ... you, please. I interrupted you. I should not have interrupted you.


GRASSLEY: Please, go ahead.

SOTOMAYOR: In the Didden case, the question was whether Mr. Didden knew that the state was intending to take his property and for what it, the state, claimed was a public use and that it had plans to have a private developer take his -- they take his property and the private developer develop the land.

So there was a full hearing by the village on this question of whether there was a public use of the land. Mr. Didden didn't claim in the action before the courts that he didn't have notice of that hearing. He did not raise a challenge in that hearing to the public taking. And he didn't raise a challenge to the state's intent to have a private developer develop the land.

Now, in that case, the developer was developing not just Mr. Didden's property. It was one piece of property in a larger development project. And that larger development project had been based on the village's conclusions from its very lengthy hearings in accordance with New York law that the area was blighted and that the area needed economic development.

SOTOMAYOR: So to that issue became the issue before the court in the sense of, had Mr. Didden, knowing that he could be injured by the state's finding of public use and the state's decision to let a private developer develop this land -- did he bring his lawsuit in a timely manner. And the court below and our court ruled on that basis that he hadn't because he had reason to know about the injury that could -- that could come to him.

GRASSLEY: Well, since Mr. Didden's claim was based on conduct of the developer, how could he ever have filed a successful claim under the standard that you just mentioned?

SOTOMAYOR: Mr. Didden alleged in his complaint that the private developer had extorted him. Extortion, under the law, is defined as an unlawful demand for money. On this one piece of property, within a larger development that the private developer was actively engaged in doing what he had contracted with the state to do, to revive the economic base by making investments in it, the private developer knew that Mr. Didden had his claims. The private developer had his agreement with state.

And so he was doing -- at least this was the private developer's argument -- what he was entitled to do which is to say we disagree. I'm claiming that I have a right under contract. You're claiming that you have a right under the takings clause. Let's settle this.

I'm going to lose X amount of money. So you pay me back for me not to do what I'm entitled to do under the law. That's, however, was -- those were the claims of the parties in the action. In the end, the decision of the court was if you believe that the takings of your property were not proper under the public use -- under the takings clause, and you knew that the state had entered a contract with this private developer, then you had knowledge that you could be injured and you should have come to court earlier.

GRASSLEY: Why was the situation in Didden not the kind of prohibited pretextual (ph) taking articulated in Kelo? How was this not some sort of form of extortion? And if there wasn't a pretext in the Didden case where the developer says give me the money personally or we'll take your land, then what is the pretext?

SOTOMAYOR: Well, as I -- as I have described the case...

GRASSLEY: Yes, I understand.

SOTOMAYOR: ... the question comes up in the context of what did Mr. Didden know, did he have enough to know he could be injured, was there no public use to the -- to which the property would apply, and what rights did the private developer have with the state.

And so the extortion question came up in a legal context surrounding the relative rights of the parties. And so as I said, extortion is a term -- a legal term which is someone demanding money with no lawful claim to it. I'm simplifying this. There's different definitions of extortion that apply to different situations. But in the context of this case, that's the simplest description of the case, I believe.

GRASSLEY: The Second Circuit panel in Didden took over a year to issue its rulings, suggesting that you understood the novelty and importance of this case, yet your opinion dealt with Mr. Didden's Fifth Amendment claim in just one paragraph. Did you believe that this was an ordinary takings case?

SOTOMAYOR: Well, cases present claims by parties. And to the extent that Mr. Didden was raising claims that sounded in the issues the court was looking at in Kelo, certainly if Kelo had not come out and the court had to, for whatever reason, determine that somehow the Kelo decision affected the statute of limitations question, it may have had to reach the question.

But courts do often wait for supreme courts to act on cases that are pending in order to see if some form of its analysis changes or not or inform whether a different look should be given to the case. But on the bottom-line issue, Kelo didn't change, in the judgment of the panel, the statute of limitations question.

GRASSLEY: OK. Regardless of the statutes of limitations, I am curious why you didn't elaborate on your Kelo analysis. And why wasn't this opinion published?

SOTOMAYOR: Well, Kelo didn't control the outcome; the statute of limitations did. So there was no basis to go into an elaborate discussion of Kelo.

The discussion of Kelo really was to say that we had understood the public taking issue that Mr. Didden had spent a lot of time in his argument about, but the ruling was based on the narrow statute of limitations ground. So the Kelo discussion didn't need to be longer because it wasn't the holding of the case. The holding of the case was the statute of limitations.

GRASSLEY: OK. This -- on another case, the Supreme Court reversed you 6-3 just three months ago in Entergy Corporation v. Riverkeeper. You had held that the Environmental Protection Agency, which is the agency with expertise, could not use a cost-benefit analysis in adopting regulations from the construction of water structures that had an impact on fish.

Rather, you interpreted the Clean Water Act to hold that EPA had to require upgrades to technology that achieved the greatest reduction in adverse environmental impact, even when the costs of those upgrades were disproportionate to benefit. Following long-established precedent, the Supreme Court held that the EPA was reasonable in providing a cost-benefit analysis when adopting regulations under the Clean Water Act. In reversing, the Supreme Court questioned your proper applications of settled law that agency regulations should be upheld, so long as they're reasonable.

Under Chevron, agency interpretation of statutes are entitled to deference so long as they are reasonable, in other words, if they aren't capricious and arbitrary. Do you find it unreasonable that the EPA was willing to allow money to be spent in a cost-effective manner by not requiring billions of additional dollars to be spent to save a minimal number of additional fish?

SOTOMAYOR: To be able to answer your question, I would need to explain a little bit more about the background. The Supreme Court has now ruled in that case that the conclusion of the Second Circuit would not be upheld on this narrow question. But the question the 2nd Circuit was looking at is what did Congress intend or mean when in the statute at issue it said that the agency had to use the best technology available to minimize an adverse environmental impact. Those were the statute's words.

In looking at that, the circuit applied general statutory construction principles, which is, in our judgment, what was the ordinary meaning of that and...

GRASSLEY: Are you saying you're not bound by Chevron then?

SOTOMAYOR: No, absolutely not.

GRASSLEY: OK, go ahead.

SOTOMAYOR: Chevron -- Chevron speaks to agency action or interpretation. But ultimately the task of a court is to give deference to what Congress wants. That's the very purpose of Congress' legislation. And so, what the court was trying to do there was to see if the agency's interpretation in light of the words of the statute and how Congress has used cost-benefit analysis in other statutes in this area and determine what Congress intended.

And so, we looked at the language. And it said just what it said -- best technology available to minimize adverse environmental impact. We looked at how Congress used cost benefit in similar statutes and similar provisions. Or I shouldn't say similar -- in other provisions. We noted that under the statutes at issue when Congress wanted the agency to use cost-benefit analysis, it said so.

In this provision, Congress was silent. But the language, in the panel's judgment, was the language. And so, in trying to discern what Congress' intent was, we came to the conclusion, not that cost had no role in the agency's evaluation, but that Congress had specified a more limited role than cost benefit. We described it as cost effectiveness.

And, in fact, we voted to vote it past our decision, asked and sent the case back to describe to us exactly what the agency had done and why. Had it used cost benefit? Had it used cost effectiveness? The cost was always going to be a part of what the agency could consider. The issue was more in what approach did Congress' words intend.

And so, agency deference is important. But Congress is the one who writes the statutes. So you have to start as a court with what did Congress intend.

GRASSLEY: It seems to me like you're saying when going (ph) the expertise of the statute that the agency was being arbitrary and capricious in...

SOTOMAYOR: Not -- not at all, sir. We were trying to look at the statute as a whole and determine what Congress meant by words that appeared to say that best technology available had to minimize an environmental effect.


SOTOMAYOR: As I said, that does have -- and as our opinion said, considerations of cost. But given that Congress didn't use the cost benefit -- give the agency cost benefit approval in the terms of this particular provision while it had in others, we determined that the agency and precedent interpreting provisions limited the use of cost benefit analysis.

GRASSLEY: In another 2004 administrative law case dealing with environmental issues, NRDC v. Abraham, you voted to strike down a Bush administration regulation and reinstate a Clinton administration environmental rule that had never even become final. In this case, it appears you also fairly narrowly interpreted Chevron deference when striking down EPA adoptions of reasonable regulations.

If you were elevated to the Supreme Court, do you intend to replace an agency's policy decisions with your own personal policy opinions, as it appears you did in both -- in the Abraham case?

SOTOMAYOR: No, sir. In that case, we were talking about and deciding an issue of whether the agency had followed its own procedures in changing policy. We weren't substituting our judgment for that of the agency. We were looking at the agency's own regulations as to the procedure that it had to follow in order to change an approach by the agency.

So that was a completely different question. With respect to deference to administrative bodies, in case after case where Chevron deference required deference, I have voted in favor of upholding administrative -- executive and administrative decisions.

GRASSLEY: This will probably have to be my last question. Since 2005, you have been a presiding judge on a panel of an appeal filed by eight states and environmental groups arguing that greenhouse gases are a public nuisance that warrant a court-imposed injunction to reduce emissions.

Your panel, in Connecticut v. American Electric Power, has sat on that case for 45 months or nearly three times the average of the Second Circuit. Why, after four years, have you failed to issue a decision in this case?

SOTOMAYOR: The American Bar Association rule on code of conduct does not permit me to talk about a pending case. I can talk to you about one of the delays for substantial a period of time in that decision, and it was that the Supreme Court was considering a case, a Massachusetts case, that had some relevancy or at least had relevancy to the extent that the panel asked the parties to brief further the applicability of that case to that decision.

GRASSLEY: OK. Thank you, Mr. Chairman.

LEAHY: Thank you, Senator Grassley. Senator Feingold?

FEINGOLD: Judge, let me first say I don't mind telling how much I'm enjoying listening to you, both your manner and your obvious, tremendous knowledge and understanding of the law. In fact, I'm enjoying it so much that I hope when you go into these deliberations about cameras in the courtroom, that you consider the possibility that I and other Americans would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms.

SOTOMAYOR: You were a very good lawyer, weren't you, Senator? (LAUGHTER)

FEINGOLD: But I'm not going to ask you about that one now. Others have covered it.
Let me get into a topic that I discussed at length with -- with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that's the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I've often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I'm going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what's an unreasonable search and seizure? What are other questions or facts specific?

But in answer to your specific question, did it change my view of the Constitution? No, sir, the Constitution is a timeless document. It was intended to guide us through decades, generation after generation, to everything that would develop in our country. It has protected us as a nation. It has inspired our survival. That doesn't change.

FEINGOLD: Well, I appreciate that answer, Judge. Are there any elements of the government's response to September 11th that you think maybe 50 or 60 years from now we as a nation will look back on with some regret?

SOTOMAYOR: I'm a historian by undergraduate training. I also love history books. It's amazing how difficult it is to make judgments about one's current positions. That's because history permits us to look back and to examine the actual consequences that have arisen, and then judgments are made.

As a judge today, all I can do, because I'm not part of the legislative branch -- it's the legislative branch who has the responsibility to make laws consistent with that branch's view of constitutional requirements and its powers. It's up to the president to take his actions. And then, it's up to the court to just examine each situation as it arises.

FEINGOLD: I can understand some hesitance on this. But the truth is that courts are already dealing with these very issues. The Supreme Court itself has now struck down a number of post- 9/11 policies. And you yourself sat on a panel that struck down one aspect of the National Security Letter statutes that were expanded by the Patriot Act.

So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

FEINGOLD: And is it fair to say, given that line of cases, that we can say that, at least as regards the Supreme Court, it believes mistakes were made with regard to the post-9/11 policies? Because in each of those cases, there was an overturning of a decision, either by the Congress or the executive.

SOTOMAYOR: I smiled only because that's not the way that judges look at that issue. We don't decide whether mistakes were made. We look at whether action was consistent with constitutional limitations, or statutory limitations.

FEINGOLD: And in each of those cases, there was a problem with either a constitutional violation or a problem with a congressional action. Right?


FEINGOLD: That's fine. As I'm sure you're aware, many of us on the committee discussed at length with the prior Supreme Court nominees the framework for evaluating the scope of executive power in the national security context. You already discussed this at some length with Senator Feinstein, Justice Jackson's test in the Youngstown case.

And I and others on the committee are deeply concerned about the very broad assertion of executive power that's been made in recent years, an interpretation that has been used to authorize the violation of clear statutory prohibitions, from the Foreign Intelligence Surveillance Act and the anti-torture statute.

You discussed with Senator Feinstein the third category, the lowest ebb category, in the Youngstown framework. And that's where, as Justice Jackson said, the president's power is at its lowest ebb, because Congress has, as you well explained it, specifically prohibited some action.

I take the point of careful scholars who argue that, hypothetically speaking, Congress could conceivably pass a law that is plainly unconstitutional. For example, if Congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict, and not subject to presidential direction, presumably, that would be out of bounds.

But setting aside such abstract hypotheticals, as far as I'm aware -- and I'm pretty sure this is accurate -- the Supreme Court has never relied on the Youngstown framework to conclude that the president may violate a clear statutory prohibition. In fact, in Youngstown itself, the court rejected President Truman's plan to seize the steel mills. Now, is that your understanding of the Supreme Court precedent in this area?

SOTOMAYOR: I haven't cases, or a sufficient number of cases, in this area to say that I can remember every Supreme Court decision on a question related to this topic.

As you know, in the Youngstown case, the court held that the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time.
But the question or the framework doesn't change, which is, each situation would have to be looked at individually, because you can't determine ahead of time with hypotheticals what a potential constitutional conclusion will be.

As I may have said in -- to an earlier question, academic discussion is just that. It's presenting the extremes of every issue and attempting to debate about, on that extreme of the legal question, how should the judge rule?

FEINGOLD: I'll concede that point, Judge. I just -- I mean, given your tremendous knowledge of the law and your preparation, I'm pretty sure you would have run into any example of where this had happened.
And I just want to note that I am unaware of and if anybody is aware of an example of where something was justified under the president's power under the lowest ebb, I'd love to know about it, but I -- I think that's a -- that's not a question of a hypothetical. That's a factual question about what the history of the case law is.

SOTOMAYOR: I -- I can only accept your assumption. As I said, I -- I have not had sufficient cases to have looked at what I know in light of that particular question that you're posing.

FEINGOLD: In August 2002, the Office of Legal Counsel at the Department of Defense issued two memoranda considering the legal limits on interrogation of terrorism detainees. And one of these contained a detailed legal analysis of the criminal law prohibiting torture.

It concluded, among other things, that enforcement of the anti- torture statute would be an unconstitutional infringement on the president's commander-in-chief authority.

But, Judge, that memo did not once cite to the Youngstown case or to Justice Jackson's opinion in Youngstown. And we just learned on Friday in a new inspector general report that a November 2001 OLC memo providing the legal basis for the so-called terrorist surveillance program also did not cite Youngstown.

Now, I don't think you would have to be familiar with those memos to answer my question. Does it strike you as odd that a complex legal analysis of the anti-torture statute or the FISA act that considers whether the president could violate those statutes would not even mention the Youngstown case?

SOTOMAYOR: I have never been an adviser to a president. That's not a function I have served, so I don't want to comment on what was done or not done by those advisers in that case. And it's likely that some question -- and I know some are pending before the court in one existing case, so I can't comment.

All I can comment -- on whether that's surprising or not, I can only tell you that I would be surprised if a court didn't consider the Youngstown framework in a decision involving this question, because it is -- that case's framework is how these issues are generally approached.

FEINGOLD: Good. I appreciate that answer.
Let me go to a topic that Senator Leahy and Senator Hatch discussed with you at some length, the Second Amendment. And I have long believed that the Second Amendment grants citizens an individual right to own firearms. And, frankly, I was elated when the court ruled in Heller last year basically what I think had been a mistake all along, to not recognize it as an individual right.

FEINGOLD: The question of whether the Second Amendment rights are incorporated in the 14th Amendment's guarantee of due process of law and, therefore, applicable to the states, as you pointed out, was not decided in Heller. And a Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government.

So, in my view, it is unremarkable that as a circuit court judge in the Maloney case you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's -- would be an unfair criticism of a case that I think you needed to rule that way given the state of the law.

But let me move on that from because many of my constituents would like to know more about how you would make such a decision as a member of the highest courts. So I want to follow up on that.
First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?

SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.

FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same position as your position in Maloney, would you have to recuse yourself from that one as well?

SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself.

I would just note that many legal issues, once they come before the Court, present a different series of questions than one addresses at the circuit court.

FEINGOLD: Well, let's assume you were able to sit to one of these cases or a future case that deals with this issue of incorporating the right to bear arms as applied to the states. How would you assess whether the Second Amendment or any other amendment that has not yet been incorporated through the 14th Amendment should be made applicable to the states? What's the test that the Supreme Court should apply?

SOTOMAYOR: That's always the issue that litigants are arguing in litigation. So to the extent that the Supreme Court has not addressed this question yet and there's a strong likelihood it may in the future, I can't say to you that I've prejudged the case and decided this is exactly how I'm going to approach it...

FEINGOLD: But what would be the general test for incorporation?


FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.
And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...


SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.             (More to Come)

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