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Sotomayor hearings: The complete transcript, Day 4, Part 2

July 16, 2009 | 11:31 am

The Supreme Court of the United States

As we often do here on The Ticket, in addition to our own take on politics and events, we are providing a complete transcript of the Senate Judiciary Committee confirmation hearings on Judge Sonia Sotomayor's nomination to the Supreme Court for those interested in reading the political participants' own words in full.

The goal, of course, is to provide Ticket readers the opportunity to make their own judgments on the back and forth between the nominee and other witnesses and the interrogating senators — some setting her up with softballs, others pursuing tougher lines of questioning.

And if you choose, please feel invited to leave your own comments below and participate in the historic confirmation debate over the nomination of the first Latina to the nation's highest court.

Scroll up or down from here for the numerous items other Ticket writers are contributing minute by minute as the drama unfolds in Room 216 of the Hart Senate Office Building on Capitol Hill in Washington.

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

Monday, we published the opening statements of each senator and Judge Sonia Sotomayor. Tuesday, we published the entire day's transcript proceedings in five parts. The links to all those pieces are at the end of this item.

Keep checking back here for updates throughout the hearing and see the variety of items our Ticket writers are producing for you by scrolling up and down.

— Andrew Malcolm

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Continuation of testimony before Senate Judiciary Committee:

CHAIRMAN PATRICK LEAHY: Only because the — the senator went over I would note the district court in that case did cite the Rees case, which is 2000 Supreme Court -- year 2000 Supreme Court case as -- as precedent and a binding 2nd Circuit court case, the Hayden case as precedent. And as the judge has noted, she incorporated the district court, as they often do in per curiam decision, incorporated the district court decision. Sen. Feinstein?

DIANNE FEINSTEIN: Thank you very much, Mr. Chairman. I have great respect for Sen. Kyl. I've worked with him, I guess, for about 12 years now on the subcommittee of this committee. But I think there is a fundamental misreading of the Supreme Court decision, if I understand it. It's my understanding that the court was five-to-four. Is that correct?


FEINSTEIN: And that the four dissenters indicated that they would have reached the same conclusion as the 2nd Circuit did. Is that correct?

SOTOMAYOR: That was my understanding.

FEINSTEIN: Thank you. Let me clear one thing up. I'm not a lawyer. And I've had a lot of ...

... people ask me, particularly from the West Coast who are watching this, what is per curiam. Would you please, in common, everyday English, explain what "through the court" means?

SOTOMAYOR: It's essentially a unanimous opinion where the court is taking an act that -- where it's not saying more than what either incorporating a decision by the court below because it's not adding anything to it.


SOTOMAYOR: In some cases, it's when there's, as Judge Cabranes in his dissent pointed out, in some cases, it's simply used to denote that an issue is so clear and unambiguous that we're just going to state the rule of law. It can be used in a variety of different ways. But it's generally where some -- where you're doing something fairly -- in a very cursory fashion, either because a district court judge has done a thorough job...

FEINSTEIN: Which was the case in this case.


FEINSTEIN: It was a very voluminous opinion that, I believe, was over 50 pages long. Is that correct?

SOTOMAYOR: I keep saying 78 because that's what I reviewed.

FEINSTEIN: Right, well, over 50, in any event.

SOTOMAYOR: But -- and as I said, my circuit did that in a case where I addressed as a district court judge a case of first impression on a constitutional, direct constitutional issue, the suspension clause. Or it can have -- one of the meanings can be that given by Judge Cabranes.

FEINSTEIN: Right. Now, my understanding also is that there is precedent in other courts. I'm looking at a decision, Oakley v. the City of Memphis, written by the circuit court. And essentially what it does is uphold the lower court that did exactly the same thing. Are you familiar with that case?


FEINSTEIN: It's an unpublished opinion, I believe. Is that correct?


FEINSTEIN: And it was a racially mixed group of male and female lieutenants, took the test. The results came in. The test was canceled. And the court upheld the cancellation.


FEINSTEIN: So this -- your case is not starkly out of the mainstream. And the reason I say this is going back to my days as mayor, particularly in the 1980s when there were many courts and many decisions involving both our police and fire departments. And it was a very controversial area of the law.

But the point I wanted to make is there is precedent, and this is certainly one of them.

SOTOMAYOR: I would agree that it was precedent. I won't choose to quarrel with the Supreme Court's decision.

FEINSTEIN: Right. I'm not asking you to. Right. Now, many have made comments regarding your Latina — "wise Latina" comment. And I'd like to just take a moment to put your comments in the context of the experiences of women. And this country is built on very great accomplishments. We forged a new country. We broke away from the British. We wrote documents that have stood the test of time. The Declaration of Independence, the Constitution, the Bill of Rights.

But we also have a history of slavery, segregated schools, of employment discrimination, of hate crimes, and unspoken prejudices that can make it very hard for individuals to be treated fairly or even to believe that they can do well in this society.

So I understand empowerment and the role that it plays. And everything has been hard fought. We, as women, didn't have the right to vote until 1920. And that was after a tremendous battle waged by a group of very brave women called Suffragettes. And when you graduated law school in 1979, there had never been a woman on the Supreme Court.

Today, women represent 50.7% of the population, 47% of law school graduates, and 30% of American lawyers. But there are only 17 women senators, and only one woman is currently serving on the Supreme Court, and we still make only $0.78 on the dollar that a man makes.

So we're making progress, but we're not there yet, and we should not lose sight of that. My question is, as you have seen this — and you must have seen how widely broadcast this is — that you become an instant role model for women. And how do you look at this — your appointment to the court — affecting empowerment for women? And I'd be very interested in any comments you might make. And this has nothing to do with the law.

SOTOMAYOR: I chose the law because it's more suited to that part of me that's never sought the kind of attention that public figures — other public figures — get. When I was in law school, some of my friends thought I would go into the political arena, not knowing that what I sought was more the life of a judge, thinking, involved in that and the process of the rule of law.

My career as a judge has shown me that, regardless of what my desires were, that my life, what I have accomplished, does serve as an inspiration for others. It's a sort of awesome sense of responsibility. It's one of the reasons that I do so many activities with people in the community, not just Latinos but all groups, because I understand that it is women. It's Latinos. It's immigrants. It's Americans of all kinds and all backgrounds.

Each one of us faces challenges in our life. Whether you were born rich or poor, of any color or background, life's challenges place hurdles every day. And one of the wonderful parts of the courage of America is that we overcome them. And I think that people have taken that sense that, on some levels, I've done some of that at various stages in my life.

And so, for me, I understand my responsibility. That's why I understand and have tried as much as I can to reach out to all different kinds of groups and to make myself as available as much as I can.
Often I have to say no; otherwise I'd never work. But I meet my responsibilities and work very hard at my job, but I also know I have a responsibility to reach out.

FEINSTEIN: Well, for whatever it's worth, I think you're a walking, talking example of the best part of the United States of America. And I just want to say how very proud I am that you are here today.
And it is my belief that you are going to be a great Supreme Court justice. And I just wanted to say that to you directly and publicly.
Thank you. Thank you, Mr. Chairman.

LEAHY: Thank you. That was great.

FEINSTEIN: Thank you.

LEAHY: Sen. Graham?

SEN. LINDSEY GRAHAM: Thank you, Mr. Chairman.
And something I would like to say to you directly and publicly and with admiration for -- for your life's story is that a lot of the wrongs that have been mentioned, some have been righted, some have yet to come, Judge. I hope you understand the difference between petitioning one's government and having a say in the electoral process, and voting for people that if you don't like you can get rid of, and the difference of society being changed by nine unelected people who have a lifetime appointment.
Do you understand the difference in how those two systems work?

SOTOMAYOR: Absolutely, sir. I understand the Constitution.

GRAHAM: And the one thing I can tell you -- this will probably be the last time we get to talk in this fashion. I hope to have a chance to get to know you better, and we'll see what your future holds, but I think it's going to be pretty bright.

The bottom line is, one of the problems the court has now is that Mr. Ricci has a story to tell, too. There are all kinds of stories to tell in this country, and the court has, in the opinion of many of us, gone into the business of societal change not based on the plain language of the Constitution, but based on motivations that can never be checked at the ballot box.

Brown v. Board of Education is instructive in the sense that the court pushed the country to do something politicians were not brave enough to do, certainly were not brave enough in my state. And if I had been elected as a senator from South Carolina in 1955, the year I was born, I would be amazed if I would have had the courage of a Judge Johnson in the political arena.

But the court went through an analysis that separate was not equal. It had a basis in the Constitution after fact-finding to reach a reasoned conclusion in the law and the courage to implement that decision. And society had the wisdom to accept the court's opinion, even though it was contentious and literally people died.

We're going to talk about some very difficult societal changes that are percolating in America today, like who should get married, and what boundaries are on the definition of marriage, and who's best able or the most capable of making those fundamental decisions?

GRAHAM: The full faith and credit clause, in essence, says that when a valid enactment of one state is entered into, the sister states have to accept it. But there's a public policy exception in the full faith and credit clause. Are you aware of that?

SOTOMAYOR: I am. Applied in different situations.

GRAHAM: Some states have different age limits for marriage. Some states treat marriage differently than others. And the court defer based on public policy. The reason these speeches matter and the reasons elections matter is because people now understand the role of the court in modern society when it comes to social change.

That's why we fight so hard to put on the court people who see the world like us. That's true from the left, and that's true from the right. And let me give you an example of why that's important.
We've talked a lot about the Second Amendment, whether or not it is a fundamental right. We all know agree it is an individual right. Is that correct?


GRAHAM: Well, that's groundbreaking precedent in the sense that just until a few months ago, or last year I guess, that was not the case. But it is today. It is the law of the land by the Supreme Court that the Second Amendment is an individual right. And you acknowledge that, that's correct?

SOTOMAYOR: That was...

GRAHAM: The Heller case.

SOTOMAYOR: ... the decision. And it is what the court has held, and so it is unquestionably an individual right.

GRAHAM: But here's the next step for the court. You will have to, if you get on the court, with your fellow justices, sit down and discuss whether or not it is a fundamental right to the point that it is incorporated through the due process clause of the 14th Amendment and applied to every state.
Isn't it fair to say, Judge, that when you do that, not only will you listen to your colleagues, you will read whatever case law is available, you're going to come down based on what you think America is all about?


GRAHAM: So what binds you when it comes to a fundamental right?

SOTOMAYOR: The rule of law. And...

GRAHAM: Isn't the rule of law, when it comes to what you consider to be a fundamental right, your opinion as to what is fundamental among all of us?

SOTOMAYOR: No. In fact the question that you raise is it fundamental in the sense of the law.

GRAHAM: Right.

SOTOMAYOR: That's a legal term. It's very different. And it is important to remember that the Supreme Court's precedent on the Second Amendment predated its...

GRAHAM: I hate to interrupt, but we have -- is there sort of a legal cookbook that you can go to and say this is a fundamental right, A, and B is not?

SOTOMAYOR: Well, there's not a cookbook, but there's precedent that was established after the older precedent that has talked and described that doctrine of incorporation. That's a set of precedents that...

GRAHAM: Are you talking about the 1890 case?

SOTOMAYOR: Yes. Well, no. The 1890 case was the Supreme Court's holding on this issue. But since that time, there has been a number of decisions discussing the incorporation doctrine applying it to different provisions of the Constitution.

GRAHAM: Is there any personal judgment to be relied upon by a Supreme Court justice in deciding whether or not the 2nd Amendment is a fundamental right?

SOTOMAYOR: Well, you hire judges for their judgment, not their personal views or what their sense of what the outcome should be. You hire your point judges for the purpose of understanding whether they respect law, whether they respect precedent and apply it in a ...

GRAHAM: I don't doubt that you respect the law, but you're going to be asked, along with eight other colleagues, if you get on the court, to render a decision as to whether or not the 2nd Amendment is a fundamental right shared by the American people. There is no subjective judgment there?

SOTOMAYOR: The issue will be controlled by the court's analysis of that question in the case, fundamental as defined by incorporation in -- likely will be looked at by the court in a case that challenges a state regulation. At that ...

GRAHAM: I have -- go ahead.

SOTOMAYOR: I'm sorry. At that point, I would presume that the court will look at its older precedent in the way it did in Heller, consider whether it controls the issue or not. It will decide, even if it controls it, whether it should be revisited under the doctrine of stare decisis. It could decide it doesn't control it, and that would be its decision. It could decide it does control, but it should revisit it.

In revisiting it, it will look at a variety of different factors, among them have there been changes in related areas of law that would counsel questioning this. As I've indicated, there was a lot of law after the older cases on incorporation. I suspect, but I don't know, because I can't prejudge the issue that the court will consider that with all of the other arguments that the parties will make.

GRAHAM: Well, maybe I've got it wrong, then. Maybe I'm off base here. Maybe you've got the 7th Circuit talking about the Heller case did not decide the issue of whether it should be incorporated to the states, because it's only dealt with the District of Columbia.

You've got the 9th Circuit -- and I never thought I'd live to hear myself say this -- look at the 9th Circuit. They have a pretty good rationale as to why the 2nd Amendment should be considered a fundamental right. And they talked about the longstanding relationship of the English man -- and they should have put woman. At least in South Carolina that would have applied -- to gun ownership. They talked about it was this right to bear arms that led to our independence. It was this right to bear arms that put down a rebellion in this country. And they talked about who we are as a people and our history as a people.

And Judge, that's why the Supreme Court matters. I do believe, at the end of the day, you're not going to find a law book that tells you whether or not a fundamental right exists vis-a-vis the 2nd Amendment, that you're going to have to rely upon your view of America, who we are, how far we've come and where we're going to go in our relationship to gun ownership. That's why these choices are so important.

And here's what I'll say about you. And you may not agree with that, but I believe that's what you're going to do, and I believe that's what every other justice is going to do.

And here's what I will say about you. I don't know how you're going to come out on that case, because I think fundamentally, Judge, you're able, after all these years of being a judge, to embrace a right that you may not want for yourself, to allow others to do things that are not comfortable to you, but for the group, they're necessary. That is my hope for you.

That's what makes you, to me, more acceptable as a judge and not a activist, because an activist would be a judge who would be champing at the bit to use this wonderful opportunity to change America through the Supreme Court by taking their view of life and imposing it on the rest of us.

I think and believe, based on what I know about you so far, that you're broad-minded enough to understand that America is bigger than the Bronx, it's bigger than South Carolina. Now, during your time as an advocate, do you understand identity politics? What is identity politics?

SOTOMAYOR: Politics based simply on a person's characteristics, generally referred to either race or ethnicity or gender, religion. It is politics based on...

GRAHAM: Do you embrace identity politics personally?

SOTOMAYOR: Personally, I don't as a judge in any way embrace it with respect to judging. As a person, I do believe that certain groups have and should express their views on whatever social issues may be out there. But as I understand the word "identity politics," it's usually denigrated because it suggests that individuals are not considering what's best for America.

GRAHAM: Do you think...

SOTOMAYOR: That's my -- and that I don't believe in. I think that whatever a group advocates, obviously, it advocates on behalf of its interests and what the group thinks it needs, but I would never endorse a group advocating something that was contrary to some basic constitutional right as it was known at the time...

GRAHAM: Do you...

SOTOMAYOR: ... although people advocate changes in the law all the time.

GRAHAM: Do you believe that your speeches properly read embrace identity politics?

SOTOMAYOR: I think my speeches embrace the concept that I just described, which is, groups, you have interests that you should seek to promote, what you're doing is important in helping the community develop, participate, participate in the process of your community, participate in the process of helping to change the conditions you live in.

I don't describe it as identity policies, because -- politics -- because it's not that I'm advocating the groups do something illegal.

GRAHAM: Well, Judge, to be honest with you, your record as a judge has not been radical by any means. It's, to me, left of center. But your speeches are disturbing, particularly to -- to conservatives, quite frankly, because they don't talk about, "Get involved. Go to the ballot box. Make sure you understand that America can be whatever you'd like it to be. There's a place for all of us."

It really did, to suggest -- those speeches to me suggested gender and racial affiliations in a way that a lot of us wonder, will you take that line of thinking to the Supreme Court in these cases of first precedent?

GRAHAM: You have been very reassuring here today and throughout this hearing that you're going to try to understand the difference between judging and whatever political feelings you have about groups or gender.

Now, when you were a lawyer, what was the mission statement of the Puerto Rican Legal Defense Fund?

SOTOMAYOR: To promote the civil rights and equal opportunity of Hispanics in the United States.

GRAHAM: During your time on the board -- and you had about every job a board member could have -- is it a fair statement to say that all of the cases embraced by this group on abortion advocated the woman's right to choose and argued against restrictions by state and federal government on abortion rights?

SOTOMAYOR: I didn't -- I can't answer that question because I didn't review the briefs. I did know that the fund had a healthcare docket...

GRAHAM: Judge?

SOTOMAYOR: ... that included challenges to certain limitations on a woman's right to terminate her pregnancy under certain circumstances.

GRAHAM: Judge, I -- I may be wrong, but every case I've seen by the Puerto Rican Legal Defense Fund advocated against restrictions on abortion, advocated federal taxpayer funding of abortion for low- income women. Across the board when it came to the death penalty, it advocated against the death penalty. When it came to employment law, it advocated against testing and for quotas.

I mean, that's just the record of this organization. And the point I'm trying to make is that whether or not you advocate those positions and how you will judge can be two different things. I haven't seen in your judging this advocate that I saw or this board member. But when it came to the death penalty, you filed a memorandum with the Puerto Rican Legal Defense Fund in 1981 -- and I would like to submit this to the record -- where you signed this memorandum.

LEAHY: Without objection.

GRAHAM: And you basically said that the death penalty should not be allowed in America because it created a racial bias and it was undue burden on the perpetrator and their family. What led you to that conclusion in 1981?

SOTOMAYOR: The question in 1991...

GRAHAM: '81.

SOTOMAYOR: I misspoke about the year -- was an advocacy by the fund taking a position on whether legislation by the state of New York outlawing or permitting the death penalty should be adopted by the state. I thank you for recognizing that my decisions have not shown me to be an advocate on behalf of any group. That's a different, dramatically different question than what -- whether I follow the law. And in the one case I had as a district court judge, I followed the law completely.

GRAHAM: The only reason we -- I mention this is when Alito and Roberts were before this panel, they were asked about memos they wrote in the Reagan administration, clients they represented. A lot to try to suggest that if you wrote a memo about this area of the law to your boss, Ronald Reagan, you must not be fit to judge. Well, they were able to explain the difference between being a lawyer in the Reagan administration and being a judge. And to the credit of many of my Democratic colleagues, they understood that.

GRAHAM: I'm just trying to make the point that when you are an advocate, when you are on this board, the board took positions that I think are left of center. And you have every right to do it. Have you ever known a low-income Latina woman who was devoutly pro-life?


GRAHAM: Have you ever known a low-income Latina family who supported the death penalty?


GRAHAM: So the point is there are many points of view within groups based on income. You have, I think, consistently, as an advocate, took a point of view that was left of center. You have, as a judge, been generally in the mainstream.

The Ricci case, you missed one of the biggest issues in the country or you took a pass. I don't know what it is. But I am going to say this, that, as Senator Feinstein said, you have come a long way. You have worked very hard. You have earned the respect of Ken Starr. And I would like to put his statement in the record.
And you have said some things that just bugged the hell out of me.


GRAHAM: The last question on the "wise Latina woman" comment. To those who may be bothered by that, what do you say?

SOTOMAYOR: I regret that I have offended some people. I believe that my life demonstrates that that was not my intent to leave the impression that some have taken from my words.

GRAHAM: You know what, Judge? I agree with you. Good luck.

LEAHY: Thank you. Sen. Durbin has actually responded to my so-far-vain request that senators may want to pass on the basis that all questions may have been asked, not everybody has asked them, but Sen. Klobuchar yesterday had some very serious and succinct areas that she was asking. I know time ran out, and I'd like to yield to Sen. Klobuchar because she may want to follow on those.

SEN. AMY KLOBUCHAR: Thank you very much, Mr. Chair.

And thank you again, Judge. I think they've turned the air conditioning on, so this is good. (LAUGHTER)
I just had two quick follow-ups following Sen. Graham's question. The first is that the only death penalty case that I know of -- there may be another one that you ruled on -- the Heatley case -- you, in fact, sustained the death penalty in that case. Is that correct?

SOTOMAYOR: I sustained -- or a rejected the challenges of the defendant that the application of the death penalty to him was based on race, yes.

KLOBUCHAR: OK. Thank you. And then just the second one, Sen. Graham mentioned the issues of Justice Roberts and the difference between an advocate and a judge. And I just came across the quote that Justice Roberts gave about his work during the Reagan administration.

And he said I can give the commitment that I appreciate that my role as a judge is different than my role as a staff lawyer for an administration. As a judge, I have no agenda. I have a guide in the Constitution and the laws and the precedents of the court. And those are what I would apply with an open mind after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench.
Would you agree with that statement?

SOTOMAYOR: Wholeheartedly.

KLOBUCHAR: All right. Thank you. There were some letters that have not yet been put on the record, and there are quite a collection of letters. I considered reading them all on the record but thought better of that.

I thought I would ask the chair if I could put these letters on the record. And these are letters of support for you from, first of all, the National Fraternal Order of Police, in support of your nomination, the Police Executive Research Forum, the national enforcement of black law enforcement executives, the National Latino Peace Officers Association, the New York State Law Enforcement Council, the National District Attorneys Association, the Association of Prosecuting Attorneys, the National Association of Police Organizations, the National Sheriffs' Association, the Major City Chiefs Association, the Detectives Endowment Association, and then also a letter from 40 of your past colleagues in the Manhattan D.A.'s office, former district attorney colleagues.

And all of these groups have given you their support. And I did want to note just two very brief portions from the letter.

The one from the Police Executive Research Forum reads, "Sonia Sotomayor went out of her way to stand shoulder to shoulder with those of us in public safety at a time when New York City needed strong, tough and fair prosecutors."

And then, also, the letter from your colleagues I found very enlightening. It was much more personal. It said that, "She began as a rookie in 1979, working long hours, prosecuting an enormous caseload of misdemeanors before judges managing overwhelming dockets. Sonia so distinguished herself in this challenging assignment that she was among the very first in her starting class to be selected to handle felonies."

"She prosecuted a wide variety of felony cases, including serving as co-counsel at a notorious murder trial. She developed a specialty in the investigation and prosecution of child pornography case. Throughout all of this, she impressed us as one who was singularly determined in fighting crime and violence."

"For Sonia, service as a prosecutor was a way to bring order to the streets of a city she dearly loved. We are proud to have served with Sonia Sotomayor. She solemnly adheres to the rule of law and believes that it should be applied equally and fairly to all Americans."

"As a group," your former colleagues say, "we have different world views, and political affiliations, but our support for Sonia is entirely nonpartisan. And the fact that so many of us have remained friends with Sonia over three decades speaks well, we think, of her warmth and collegiality." Pretty nice letter.

In reading these letters from these law enforcement groups, there was just one follow-up case that you had that I wanted to allow you to enlighten the country about. And this is one that a former New York police detective, Chris Monino spoke about recently in an article, and he spoke about a case you worked on as district attorney.

He talked about the child pornography case, how he had gone to various prosecutors to try to get them interested in the case, and he couldn't get them interested. And I have some guesses. Some of these cases, as you know, can be very involved with a lot of evidence and sometimes computer forensics and things like that. But he wasn't able to interest them in taking on the case.

But you were the one that was willing to take on the case, and it led to the prosecution of two perpetrators. Could you talk a little bit about that case, why you think others didn't and why you decided to take on the case?

SOTOMAYOR: Well, I can't speak to why others decided to pass on the case. I can talk to you about my views at the time.

The New York Court of Appeals had invalidated the New York statute on child pornography on the grounds of a constitutional violation, federal constitutional violation, that the statute did not comport with the federal Constitution. Supreme Court took that case directly from the Court of Appeals, as is its right to review all issues of federal constitutional law, and reversed the New York Court of Appeals and reinstated the statute.

My sense is, because there were still so many open questions about both the legality of the statute and the question of the difficulty in proving the particular crime at issue, that involved two men who worked in a change of -- chain of adult bookstores in the then-Times Square area. Times Square has changed dramatically since that time.

It was mostly circumstantial. We had some tapes, but their knowledge of what those tapes contained, their intent to sell and distribute child pornography involving children below a certain age, it was a difficult, difficult legal and factual case, but it was clear that it was a serious case. We're talking about the distribution of films that show children who were anywhere from 8 years old to 12 years old being explicitly sexually abused.

And it seemed to me that, regardless of the outcome of the case, whether I secured the convictions or not, whether it was held up on appeal or not, that the issues it raised had to be presented in court because of the importance of the crime.

And so I brought the prosecution. I had a co-counsel in that case who was second-seating me in that case, meaning she was assisting me. And the case took a while at trial, because, as I said, it was circumstantial. The jury returned a verdict against both defendants. They were sentenced quite severely, and the cases held up on appeal.

It was an enormously complicated case. I assisted in the appeal because it was so complicated that one of the heads of the Appeals division of the New York County District Attorney's Office had to become involved in it. But the convictions were sustained.

And so the effort resulted in a conviction of two men who were distributing films that had the vilest of sexual acts portrayed against children.

KLOBUCHAR: And one last case I wanted to ask you about, which the chairman had briefly mentioned in his opening, and it was a troubling case because it involved an elected official. It was U.S. v. Giordano, and this case when you -- happened when you were a judge.

And it involved very troubling facts with the mayor of Waterbury, Conn., in a variety of crimes stemming from his repeated sexual abuse of a minor daughter and a niece and of a prostitute. And you wrote for the majority in that case. There was actually a dissent from one of your fellow judges on the 2nd Circuit.

And you held, in part, that the mayor could, in fact, be charged with the separate crime of violating the young girl's civil rights under color of state law. And I think -- and I don't want to put words in your mouth, but the reason you were able to use that theory is that you note how frequently the mayor reiterated to his young victims that they would be in trouble with law enforcement if they didn't submit to what he wanted them to do. Could you talk about how that case fits in to your overall approach to judging?

SOTOMAYOR: As I have indicated, the role of a judge is to look at Congress' words in a statute and discern its intent. And in cases that present you facts, you must take existing precedents and apply the teachings of those precedents to those new facts.

In the Giordano case, that had been another situation quite like this one. This was a mayor who, working through a woman, secured sexual acts by very young girls that were taking place in his office. And through the woman he was working with and also through his own exhortations, don't tell anybody or you'll get into trouble, and the woman's exhortations to the child, the person he was conspiring with, that they would get in trouble with the police because the police wouldn't believe them. They would believe him because he was a mayor.

The question for the court became is that acting under color the state law. Is he using his office to promote this illegal activity against these young girls? The majority viewing these facts said yes, that's the principles we discern from precedent about what the use of state law -- of acting color of state law means.

The dissent disagreed, and it disagreed using its own rationale about why the law should not be read that way. But these are cases that rely upon an understanding both of what the words say and how precedent has interpreted them. And that's what the majority of the panel did in that case.

KLOBUCHAR: Thank you very much. And I think it's been enlightening for people to hear about some of your views on these criminal cases. And I'd just like to ask one last question then. It's the exact question that my friend and colleague, Senator Graham, asked Chief Justice Roberts as his confirmation hearing.
And he asked: What would be like history to say about you when all is said and done?

SOTOMAYOR: I can't live my life to write history's story. That will be the job of historians long after I'm going. Some of them start now, but long after I'm gone. (LAUGHTER) In the end, I hope it will say I'm a fair judge, that I was a caring person, and that I lived my life serving my country.

KLOBUCHAR: I think you can't say much more that thank you. Thank you very much, Judge.

LEAHY: Thank you, Judge. I appreciate that. Thank you, Sen. Klobuchar. Sen. Cornyn, who, as I mentioned yesterday, is a former Supreme Court justice of Texas as well as former attorney general, a valued member of this committee. Sen. Cornyn?

SEN. JOHN CORNYN: Thank you, Mr. Chairman. Good morning, judge.

SOTOMAYOR: Good morning, senator.

CORNYN: Judge, when we met the first time, as I believe I recounted earlier, I made a pledge to you that I would do my best to make sure you were treated respectfully and this would be a fair process. I just want to ask you upfront: Do you feel like you've been given a chance to explain your record and your judicial philosophy to the American people?

SOTOMAYOR: I have, sir. And every senator on both sides of the aisle that have made that promise to me have kept it fully.

CORNYN: And, Judge, you know, the test is not whether Judge Sonia Sotomayor is intelligent. You are. The test is not whether we like you. I think, speaking personally, I think we all do. The test is not even whether we admire you or we respect you, although we do admire you and respect what you've accomplished.

The test is really, what kind of justice will you be if confirmed to the Supreme Court of the United States? Will you be one that adheres to a written Constitution and written laws, that -- and respect the right of the people to make their laws through their elected representatives, or will you pursue a -- some other agenda, personal, political, ideological, that is something other than enforcing the law?

I think those are the -- that is really the question.  And, of course, the purpose of these hearings is -- as you've gone through these tedious rounds of questioning, is to allow us to clear up any confusion about your record and about your judicial philosophy, yet so far I find there's still some confusion.

For example, in 1996, you said the idea of a stable, quote, "capital L Law" was a public myth. This week, you said that fidelity to the law is your only concern.

In 1996, you argued that indefiniteness in the law was a good thing because it allowed judges to change the law. Today you characterized that argument as being only that ambiguity can't exist and that it is Congress's job to change the law.

In 2001, you said that innate physiological differences of judges would or could impact their decisions. Yesterday, you characterized that argument as being only that innate physiological differences of litigants could change decisions. In 2001, you disagreed explicitly with Justice O'Connor's view of whether a wise man and wise woman would reach the same decision. Yet, during these hearings, you characterized your argument as being that you agreed with her.

A few weeks ago, in your speech on foreign law to the American Civil Liberties Union, you rejected the approach of Justices Alito and Thomas with regard to foreign law, and yet it seems to me, during these hearings, you have agreed with them.

So, Judge, what should I tell my constituents who are watching these hearings and saying to themselves, "In Berkeley and other places around the country, she says one thing, but at these hearings, you are saying something which sounds contradictory, if not diametrically opposed, to some of the things you've said in speeches around the country"?

SOTOMAYOR: I would tell them to look at my decisions for 17 years and note that, in every one of them, I have done what I say that I so firmly believe in. I prove my fidelity to the law, the fact that I do not permit personal views, sympathies or prejudices to influence the outcome of cases, rejecting the challenges of numerous plaintiffs with undisputably sympathetic claims, but ruling the way I have on the basis of law rejecting those claims, I would ask them to look at the speeches completely, to read what their context was and to understand the background of those issues that are being discussed.

I didn't disagree with what I understood was the basic premise that Justice O'Connor was making, which was that being a man or a woman doesn't affect the capacity of someone to judge fairly or wisely. What I disagreed was with the literal meaning of her words because neither of us meant the literal meaning of our words. My use of her words was pretty bad in terms of leaving a bad impression. But both of us were talking about the value of experience and the fact that it gives you equal capacity.

In the end, I would tell your constituents, senators, look at my record and understand that my record talks about who I am as a person, what I believe in and my judgment and my opinion. But following the rule of law is the foundation of our system of justice.

CORNYN: Thank you for that -- for your answer, judge. You know, I actually agree that your judicial record strikes me as pretty much in the mainstream of -- of judicial decision making by district court judges and by court of appeals judges on the federal bench. And while I think what is creating this cognitive dissidence for many of us and for many of my constituents who I've been hearing from is that you appear to be a different person almost in your speeches and in some of the comments that you've made. So I guess part of what we need to do is to try to reconcile those, as I said earlier.

You said that -- I want to pivot to a slightly different subject and go back to your statement that the courts should not make law. You've also said that the Supreme Court decisions that a lot of us believe made law actually were an interpretation of the law.

So I'm -- I would like for you to clarify that. If the Supreme Court in the next few years holds that there is a constitutional right to same-sex marriage, would that be making the law? Or would that be interpreting the law? I'm not asking you to classify -- excuse me. I'm not asking you to prejudge that case or the merits of the arguments, but just to characterize whether that would be interpreting the law or whether that would be making the law.

SOTOMAYOR: Senator, that question is so embedded with its answer, isn't it? Meaning if the court rules one way and I say that's making law, then it forecasts that I have a particular view of whatever arguments may be made on this issue, suggesting that it's interpreting the Constitution. I understand the seriousness of this question. I understand the seriousness of same-sex marriage.

But I also know, as I think all America knows, that this issue is being hotly debated on every level of our three branches of government. It's being debated in Congress. And Congress has passed an act relating to same-sex marriage. It's being debated in various courts on the state level. Certain higher courts have made rulings.

This is the type of situation where even the characterizing of whatever the court may do as one way or another suggests that I have both prejudged an issue and that I come to that issue with my own personal views suggesting an outcome. And neither is true. I would look at that issue in the context of the case that came before me with a completely open mind.

CORNYN: Forget the same-sex marriage hypothetical. Is there a difference, in your mind, between making the law and interpreting the law? Or is this a distinction without a difference?

SOTOMAYOR: Oh, no. It's a very important distinction. Laws are written by Congress. If has -- it makes factual findings. In determines, in its judgment, what the fit is between the law it's passing and the remedy. It's -- that its giving as a right.

The courts, when they're interpreting, always have to start with what does the Constitution say, what is the words of the Constitution, how has precedent interpreting those, what are the principles that it has discussed govern a particular situation.

CORNYN: How do you reconcile that answer with your statement that courts of appeals make policy?

SOTOMAYOR: In both cases in which I've used that word in two different speeches -- one was a speech, one was a remark to students -- this is almost like the discussion fundamental -- what does it mean to a non-lawyer and fundamental, what it means in the context of Supreme Court legal theory.

CORNYN: Are you saying it's only a discussion that lawyers could lot of?

SOTOMAYOR: Not love. But in the context in both contexts, it's very, very clear that I'm talking about completely the difference between the two judgings and that circuit courts, when they issue a holding, it becomes precedent on all similar cases.

In both comments, those -- that statement was made absolutely expressly that that was the context of the kind of policy I was talking about, which is the ramifications of a precedent on all similar cases. When Congress talks about policy, it's talking about someone totally different. It's talking about making law, what are the choices that I'm going to make in law -- in making the law.

Those are two different things. I wasn't talking about courts making law. In fact, in the Duke speech, I said -- I used making policy in terms of its ramifications on existing cases. But I never said in either speech we make law in the sense that Congress would.

CORNYN: Let me turn to another topic. In 1996, when you -- after you'd been on the federal bench for four years, you wrote a law review article -- the Suffolk University Law Review. And this pertains to campaign financing.

You said, quote, "Our system of election financing permits extensive private, including corporate, financing of candidates' campaigns raising again and again the question of whether -- of what the difference is between contributions and bribes and how legislators or other officials can operate objectively on behalf of the electorate."

CORNYN: You said, "Can elected officials say with credibility that they're carrying out the mandate of a democratic society representing only the generally public good when private money plays such a large role in their campaigns?"Judge Sotomayor, what is the difference, to your mind, between a political contribution and a bribe?

SOTOMAYOR: The context of that statement was a question about what was perking through the legal system at the time and has been, as you know, before the Supreme Court since Buckley v. Vallejo. In Buckley...

CORNYN: I -- I agree, your honor. But what -- my question is, what, in your mind, is the difference between a political contribution and a bribe?

SOTOMAYOR: The question is, is a contributor seeking to influence or to buy someone's vote? And there are situations in which elected officials have been convicted of taking a bribe because they have agreed in exchange for a sum of money to vote on a particular legislation in a particular way. That is -- violates the federal law.

The question that was discussed there was a much broader question as to, where do you draw that line as a society? What choices do you think about in terms of what -- what Congress will do, what politicians will do?

I've often spoken about the difference between what the law permits and what individuals should use to guide their conduct. The fact that the law says you can do this doesn't always mean that you as a person should choose to do this.

And, in fact, we operate within the law. You don't -- you should not be a lawbreaker. But you should act in situations according to that sense of what's right or wrong.

We had the recent case that the Supreme Court considered of the judge who was given an extraordinary amount of money by a campaign contributor, dwarfing everything else in his campaign in terms of contributions, funding a very expensive campaign.

CORNYN: In fact -- in fact -- in fact, that was not a direct contribution to the judge, was it?

SOTOMAYOR: Well, it wasn't a direct contribution, but it was a question there where the Supreme Court said, the appearance of impropriety in this case would have counseled the judge to get off, because...

CORNYN: Let's get back to my question, if I can, and let me ask you this. Last year, President Obama set a record in fundraising from private sources, raising an unprecedented amount of campaign contributions. Do you think, given your law review article, that President Obama can say with credibility that he's carrying out the mandate of a democratic society?

SOTOMAYOR: That wasn't what I was talking about in that speech. I don't -- I don't know...

CORNYN: Well, I realize he wasn't elected in 1996, but what I'm -- what I'm getting at is, are you basically painting with such a broad brush when it comes to people's rights under the First Amendment to participate in the political process, either to volunteer their time, make in-kind contributions, make financial contributions? Do you consider that a form of bribery or in any way improper?


CORNYN: OK. Thank you.


CORNYN: Thank you for your answer.
In the short time we have remaining, let me return to -- to the New Haven firefighter case briefly. As you know, two witnesses, I believe, will testify after you're through, and I'm sure you will welcome being finished with this period of questioning.

A lot of attention has been given to the lead plaintiff, Frank Ricci, who is a dyslexic and the hardship he's endured in order to prepare for this competitive examination only to see the competitive examination results thrown out.

But I was struck on July the 3rd in the New York Times, when they featured another firefighter, who will testify here today, and that was Benjamin Vargas. Benjamin Vargas is the son of Puerto Rican parents, as you probably know, and he found himself in the odd position, to say the least, of being discriminated against based on his race, based on the decisions by the circuit court panel that you sat on.

The closing of the article, because Lieutenant Vargas -- who hopes to be Captain Vargas as a result of the Supreme Court decision because he scored sixth on the comprehensive examination -- at the very last paragraph in this article, he -- it says, "Gesturing toward his three sons, Lieutenant Vargas explained why he had no regrets. He said, 'I want to give them a fair shake. To get a job on the merits, not because they're Hispanic or to fill a quota.' He said, 'What a lousy way to live.'" That's his testimony.

So I want to ask you, in conclusion, do you agree with Chief Justice John Roberts when he says, "The best way to stop discriminating based on race is to stop discriminating based on race"?

SOTOMAYOR: The best way to live in our society is to follow the command of the Constitution, provide equal opportunity for all. And I follow what the Constitution says, that is, how the law should be structured and how it should be applied to whatever individual circumstances come before the court.

CORNYN: With respect, Judge, my question was do you agree with Chief Justice John Roberts's statement, or do you disagree?

SOTOMAYOR: The question of agreeing or disagreeing suggests an opinion on what the ruling was in the case he used it in, and I accept the court's ruling in that case. And that was a very recent case.
There is no quarrel that I have, no disagreement. I don't accept that, in that situation, that statement the court found applied. I just said the issue is a constitutional one - equal opportunity for all under the law.

CORNYN: I understand that you might not want to comment on what Chief Justice John Roberts wrote in an opinion, even though I don't think he was speaking of a specific case but rather an approach to the law which would treat us all as individuals with equal dignity and equal rights.
But let me ask you whether you agree with Martin Luther King when he said he dreamed of a day when his children would be judged not by the color of their skin, but by the content of their character. Do you agree with that?

SOTOMAYOR: I think every American agrees with that (inaudible).

CORNYN: Amen. Yield back, Mr. Chairman.

LEAHY: Thank you, Sen. Cornyn. Just so we'll note for the schedule, we're going to go to Sen. Specter, who is a long-time member of this committee and one of the most senior members here. And I would, once Sen. Specter's questions are finished, we will take a very short break. And does that work for you, judge? I...

SOTOMAYOR: It most certainly does.

LEAHY: OK. So...

SOTOMAYOR: Thank you.    (More to come)

Links to previous portions of this week's Senate Judiciary Committee hearings:

Each committee senator's opening statement.  Sotomayor's opening statement. Part 1 of Tuesday's transcript is available by clicking here. Part 2 of today's transcript is available here. Part 3 is available here. Part 4  of the July 14 Sotomayor transcript is here. And Part 5 is available here.

Part 1 of Wednesday's morning transcript is available here. Part 2 of Wednesday's testimony is available herePart 3 of Wednesday is available here. The fourth and final part of Wednesday's hearing transcript is here.

Part 1 of Thursday's testimony is now available here.

Part 3 of Thursday's testimony is now available here.


Photo: Associated Press