S8822 CONGRESSIONAL RECORD — SENATE August 5, 2009 PRLDEF’s own meeting minutes. For Before the hearing, my biggest ques- tradictions among her many state- example, on October 8, 1978: tion about Judge Sotomayor was ments, so as to give us confidence that [Litigation Committee] Chairperson whether she could abide by that stand- her Judiciary Committee testimony Sotomayor summarized the activities of the ard. We spent 3 days asking her ques- represents what she believes and what Committee over the last several months tions, trying to understand what she she will do. Instead, she would have us which included the review of the litigation meant in some of her controversial believe that there is no contradiction, efforts of the past and present. . . . speeches and what drove her to ques- that she can hold onto what she said The New York Times has detailed her tionable conclusions in cases such as before in speeches and decisions—for active involvement, as recounted by Ricci and Maloney. example, that she merely followed Su- former PRLDEF colleagues, who have Judge Sotomayor did not dispel my preme Court and circuit precedent in described Judge Sotomayor as a ‘‘top concerns. Her sworn testimony was Maloney, and that the dissenters in policy maker’’ who ‘‘played an active evasive, lacking in substance, and, in Ricci did not disagree with her rea- role as the defense fund staked out ag- several instances, incredibly mis- soning—and also her testimony. gressive stances.’’ According to these leading. I cannot ignore her unwillingness to reports, she ‘‘frequently met with the Her dissembling was widely noticed. answer Senators’ questions straight- legal staff to review the status of Indeed, in an editorial, the Washington forwardly—for instance, her insistence cases’’ and ‘‘was an involved and ar- Post criticized Judge Sotomayor’s tes- that as chair of PRLDEF’s litigation dent supporter of their various legal ef- timony about her ‘‘wise Latina’’ state- committee, she had little to do with forts during her time with the group.’’ ment. Here is what the Washington the organization’s legal positions. She What were the litigation positions Post said: has not carried her burden of proof and, advanced by PRLDEF during Judge Judge Sotomayor’s attempts to explain therefore, regrettably, I cannot vote to Sotomayor’s tenure there? Well, it ar- away and distance herself from that state- confirm her. ment were unconvincing and at times un- gued in court briefs that restrictions f on abortion are analogous to slavery. comfortably close to disingenuous, espe- And it repeatedly represented plaintiffs cially when she argued that her reason for RECESS raising questions about gender or race was to challenging the validity of employ- warn against injecting personal biases into The ACTING PRESIDENT pro tem- ment and promotional tests—tests the judicial process. Her repeated and pore. Under the previous order, the similar to the one at issue in Ricci. lengthy speeches on the matter do not sup- Senate stands in recess until 5 p.m. I want to return to a question I port that interpretation. Thereupon, the Senate, at 3:11 p.m., raised in my opening statement of Until now, Judge Sotomayor has recessed until 5 p.m. and reassembled Judge Sotomayor’s hearing: What is been operating under the restraining when called to order by the Presiding the traditional basis for judging in influence of a higher authority—the Officer (Mr. BURRIS). America? Supreme Court. If confirmed, there f For 220 years, Presidents and the would be no such restraint that would Senate have focused on appointing and NOMINATION OF SONIA SOTO- prevent Judge Sotomayor from—to MAYOR TO BE AN ASSOCIATE confirming judges and Justices who are paraphrase President Obama—deciding committed to putting aside their biases JUSTICE OF THE SUPREME cases based on her heartfelt views. COURT OF THE UNITED and prejudices and applying the law If the burden is on the nominee to STATES—Continued fairly and impartially to resolve dis- prove herself worthy of a lifetime ap- putes between parties. pointment to the Nation’s highest The PRESIDING OFFICER. Under This principle is universally recog- Court, she must do more than avoid a the previous order, the Senate will re- nized and shared by judges across the ‘‘meltdown’’ in her testimony. She sume the 1-hour alternating blocks of wide ideological spectrum. For in- must be able to rationalize contradic- time with the Republicans controlling stance, Judge Richard Paez of the tory statements—assuming she does the first hour. ninth circuit—with whom I disagree on not repudiate one or the other—such as The Senator from Oklahoma. a number of issues—explained this in the differences between her speeches Mr. COBURN. I ask unanimous con- the same venue where, less than 24 and her committee testimony. Her fail- sent that the Republican time for the hours earlier, Judge Sotomayor made ure to do that has left me unpersuaded next hour be allocated as follows: My- her remarks about a ‘‘wise Latina that Judge Sotomayor is absolutely self, 15 minutes; Senator SNOWE, 30 woman’’ making better decisions than committed to setting aside her biases minutes; and Senator BROWNBACK, 15 other judges. Judge Paez described the and impartially deciding cases based minutes. instructions that he gives to jurors upon the rule of law. The PRESIDING OFFICER. Without who are about to hear a case. ‘‘As ju- Judge Sotomayor is obviously intel- objection, it is so ordered. rors,’’ he said, ‘‘recognize that you ligent, experienced, and talented. She Mr. COBURN. Mr. President, I rise might have some bias, or prejudice. represents one of the greatest things today to discuss the nomination of Recognize that it exists, and determine about America—the opportunity to be- Judge Sonia Sotomayor to be a Justice whether you can control it so that you come whatever you want with your on the U.S. Supreme Court. Judge can judge the case fairly. Because if God-given abilities. She is a role model Sotomayor comes to the Senate with a you cannot—if you cannot set aside for young women, as well as minori- compelling personal story and notable those prejudices, biases and passions— ties, specifically. She is personable professional accomplishments. She has then you should not sit on the case.’’ and, apparently, hard working. I re- worked as a prosecutor, a corporate at- And then Judge Paez said: spect the views of those who regard her torney, and then as a Federal district The same principle applies to judges. We well. court and circuit court judge. And, take an oath of office. At the federal level, it Moreover, I appreciate her many dec- after meeting with Judge Sotomayor is a very interesting oath. It says, in part, larations during the hearing that and visiting with her, I like her. She is that you promise or swear to do justice to judges must decide cases solely on the a very kind and affable person. both the poor and the rich. The first time I basis of the facts and the law; and espe- Certainly Judge Sotomayor has an heard this oath, I was startled by its signifi- impressive resume; however, the Sen- cance. I have my oath hanging on the wall in cially her disagreement with the Presi- the office to remind me of my obligations. dent’s erroneous, I believe, formula- ate’s inquiry into her suitability for a And so, although I am a Latino judge and tions that, in the hard cases, a judge seat on the Supreme Court does not there is no question about that—I am viewed should rely on empathy and what is in end with her professional accomplish- as a Latino judge—as I judge cases, I try to his or her heart. ments. Equally important to our pro- judge them fairly. I try to remain faithful to It may have been possible to vote to viding ‘‘consent’’ on this nomination is my oath. confirm her notwithstanding her deci- our determination that Judge What Judge Paez said has been the sions in Ricci, Maloney, and some Sotomayor has the appropriate judicial standard for 220 years. It correctly de- other questionable cases. What I can- philosophy for the Supreme Court. scribes the fundamental and proper not abide, however, is her unwilling- Judge Sotomayor needed to prove to role both for jurors and judges. ness to forthrightly confront the con- the Senate that she will adhere to the

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00038 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.060 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8823 proper role of a judge and only base her statements and her other testimony preting our statutes and the Constitu- opinions on the plain language of the were a dramatic departure from her tion in order to reach their desired out- U.S. Constitution and statutes. She earlier statements. So, I am left won- come, and so I was deeply troubled by needed to demonstrate that she will dering: Which Judge Sotomayor are we some of Judge Sotomayor’s earlier strictly interpret the Constitution and getting? statements that endorsed the use of our laws and will not be swayed by her I believe a person speaks from their foreign law by U.S. judges. Justice personal biases or political preferences. heart when they discuss matters that Scalia succinctly articulated the prob- As Alexander Hamilton stated in Fed- are most important to them. On nu- lem with using foreign law in his dis- eralist Paper No. 78 ‘‘the interpretation merous occasions, most notably when sent from a recent Supreme Court of the law is the proper and peculiar she was teaching and guiding law stu- opinion, Roper v. Simmons. The major- province of the courts. The constitu- dents and bar associations, Judge ity decision in Roper cited the world- tion . . . must be regarded by the Sotomayor made some impassioned wide ‘‘evolving standards of decency’’ judges as a fundamental law.’’ Ham- statements about the role of a judge, to strike down a statute that allowed ilton further stated that it was ‘‘indis- which contradict her testimony at the judges to impose capital punishment pensable in the courts of justice’’ that hearing. Speaking in 2002, Judge for juveniles, even for the most heinous judges have an ‘‘inflexible and uniform Sotomayor said: ‘‘I wonder whether crimes. In his dissent, Justice Scalia adherence to the rights of the Con- achieving that goal—of transcending asserted that the practice of relying on stitution.’’ A nominee who does not ad- personal sympathies and prejudices and foreign law inevitably leads to judicial here to these standards necessarily re- aspiring to achieve a greater degree of activism. He argued that ‘‘[w]hat these jects the role of a judge as dictated by fairness and integrity based on the rea- foreign sources ‘affirm,’ rather than re- the Constitution and should not be son of law—is possible in all or even in pudiate, is the Justices’ own notion of confirmed. most cases. And I wonder whether by how the world ought to be, and their With regard to judicial philosophy, ignoring our differences as women or diktat that it shall be so henceforth in the burden of proof always rests on the men of color we do a disservice both to America.’’ nominee. But, in Judge Sotomayor’s the law and society.’’ This statement is I agree with Justice Scalia’s assess- case, that burden was exacerbated by of extraordinary concern to me. Not ment. Unfortunately, judging by her statements, Judge Sotomayor does not. her prior speeches and statements. only does Judge Sotomayor’s state- During her hearing, I asked Judge President Obama promised to nominate ment indicate that she cannot set aside Sotomayor about a recent speech she someone ‘‘who’s got the heart, the em- her personal sympathies and prejudices gave in which she stated that prohib- pathy, to recognize what it’s like to be ‘‘in most cases,’’ but she does not ap- iting the use of foreign law would mean a young teenage mom. The empathy to pear to believe that this goal is even an understand what it’s like to be poor, or judges would have to ‘‘close their admirable one. minds to good ideas’’ and that it is her African-American, or gay, or disabled, Even more concerning, Judge ‘‘hope’’ that judges will continue to or old.’’ Senator Obama referred to his Sotomayor stated prior to her hearing consult foreign law when interpreting empathy standard when he voted that ‘‘[p]ersonal experiences affect the our Constitution and statutes. In that against Chief Justice John Roberts. He facts that judges choose to see’’ and speech, she condemned Justices Scalia stated that the tough cases ‘‘can only ‘‘our gender and national origins may and Thomas for their criticism of the be determined on the basis of one’s and will make a difference in our judg- use of foreign law in Supreme Court de- deepest values, one’s core concerns, ing.’’ It seems to me, and I think to cisions stating: ‘‘The nature of the one’s broader perspectives on how the most Americans, that the facts of a criticism comes from . . . a misunder- world works, and the depth and case are pretty clear and, if a judge is standing of the American use of that breadth of one’s empathy.’’ She meets picking and choosing the facts they see concept of using foreign law and that his standard but not mine. The Presi- based on their personal experiences, misunderstanding is unfortunately en- dent’s ‘‘empathy’’ standard is antithet- then they cannot possibly be impartial dorsed by some of our own Supreme ical to the proper role of a judge. The arbiters. I believe President Adams Court Justices. Both Justice Scalia and American people expect a judge to be a said it best when he stated: ‘‘Facts are Justice Thomas have written exten- neutral arbiter who treats all litigants stubborn things . . . and whatever may sively criticizing the use of foreign and equally. There is a reason why Lady be our wishes, our inclinations, or the international law in Supreme Court de- Justice is always depicted blindfolded dictums of our passions, they cannot cisions. . . . But, I share more the ideas and why Aristotle defined law as ‘‘rea- alter the state of facts and evidence.’’ I of Justice Ginsburg in thinking, . . . in son free from passion.’’ The judicial am disturbed that Judge Sotomayor believing that unless American courts oath succinctly expresses this ideal by does not agree with President Adams’s are more open to discussing the ideas requiring judges to swear that they assessment. raised by foreign cases, and by inter- ‘‘will administer justice without re- Prior to her hearing testimony, she national cases, that we are going to spect to persons, and do equal right to also stated that ‘‘court of appeals is lose influence in the world.’’ In her the poor and to the rich, and . . . will where policy is made.’’ This statement speech, Judge Sotomayor then specifi- faithfully and impartially discharge is in stark contrast to her hearing tes- cally cited Roper v. Simmons—ruling and perform all the duties incumbent timony, and that contradiction is deep- unconstitutional a statute permitting upon them under the Constitution and ly disturbing to me. I think Judge imposing the death penalty for juve- laws of the United States.’’ Sotomayor believes what she said pre- niles—and Lawrence v. Texas—over- During her hearing, I was pleased to viously in her speeches, and when you turning a law against same-sex sod- hear Judge Sotomayor disavow this believe in something, I think you omy—as examples of cases where the empathy standard. In response to a should stand up and defend it. You Supreme Court used foreign law appro- question asking whether empathy should explain why you can still be a priately to strike down State criminal should play a role in a judge’s decision, good judge even though you made laws. Judge Sotomayor responded, ‘‘We those statements. That is what I want- I asked Judge Sotomayor about her apply law to facts. We don’t apply feel- ed and expected to hear from her dur- statements disagreeing with Justices ings to facts.’’ She further stated that ing her hearing. I was disappointed Scalia and Thomas’s criticism of the she ‘‘wouldn’t approach the issue of that she chose to dodge questions and Court’s use of foreign law in cases such judging in the way the President does. obfuscate her record. as Roper and Lawrence, and she re- . . . judges can’t rely on what’s in their I was even more concerned that versed her earlier statement saying she heart. They don’t determine the law. Judge Sotomayor reversed herself ‘‘actually agreed with Justices Scalia Congress makes the laws. The job of a when discussing her judicial philosophy and Thomas on the point that one has judge is to apply the law. And so it’s on the use of foreign law by U.S. to be very cautious even in using for- not the heart that compels conclusions judges. Results-oriented, activist eign law with respect to the things in cases. It’s the law.’’ While I was en- judges who seek to rule based on their American law permits you to.’’ Clearly, couraged to hear Judge Sotomayor’s personal sympathies and prejudices her hearing testimony was either inac- testimony, I am concerned that these often look to foreign law when inter- curate or designed to be misleading

VerDate Nov 24 2008 02:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00039 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.027 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8824 CONGRESSIONAL RECORD — SENATE August 5, 2009 since she previously said she shared Sotomayor be receptive to arguments the rights guaranteed by the fifth ‘‘more the ideas of Justice Ginsburg’’ that foreign countries impose greater amendment. In Didden v. Village of who has endorsed the Court’s use of restrictions on gun rights and, there- Port Chester, Judge Sotomayor ex- foreign law in cases such as Roper and fore, be persuaded that some excessive tended the government’s power to take Lawrence. State and Federal restrictions are con- private property in a cursory opinion I then asked Judge Sotomayor to af- stitutional? As she noted in her recent that one property professor said was firm that she would refrain from using second circuit opinion holding that the ‘‘worst federal court takings deci- foreign law in making her decisions there is no fundamental right to bear sion since Kelo.’’ He further stated and writing her opinions, outside of arms, there are very few Supreme that the opinion is ‘‘very extreme’’ and where she was directed to do so Court cases addressing the right to ‘‘is significant as a window into Judge through statute or through treaty. She bear arms. If confirmed, would she fill Sotomayor’s attitudes toward private stated unequivocally that she would in the gaps with foreign law? property.’’ Another notable professor ‘‘not use foreign law to interpret the Unfortunately, I believe my fears said the opinion is ‘‘a disappointment’’ Constitution or American statutes’’ were confirmed by her answers to writ- and is ‘‘wrong and ill thought out’’ and and she would ‘‘not utilize foreign law ten questions following the hearing is ‘‘about as naked an abuse of govern- in terms of making decisions.’’ I was when she refused to pledge that she ment power as could be imagined.’’ reassured by these statements. would not consider foreign law when Those are strong criticisms from re- Regrettably, my reassurance did not considering second amendment cases. spected legal scholars and nothing in last long. In her responses to written She stated: ‘‘Because cases raising Sec- Judge Sotomayor’s testimony reas- questions following the hearing, Judge ond Amendment questions are cur- sured me about her opinion in the Sotomayor reverted back to her former rently pending before the Court, I Didden case. stated judicial philosophy regarding would not comment on how I would de- Following the hearing, I remain con- foreign law. She wrote: ‘‘In some lim- cide those cases if I am confirmed.’’ cerned that Judge Sotomayor’s hos- ited circumstances, decisions of foreign Her refusal to answer that should give tility to gun rights, abortion restric- courts can be a source of ideas, just as pause to those who, like me, cherish tions, and property rights, among oth- law review articles or treatises can be the fundamental right to bear arms. ers, stem from a ‘‘personal prejudice’’ sources of ideas. Reading the decisions The concern that Judge Sotomayor that will influence her decisions once of foreign courts for ideas, however, may use foreign law to interpret the she is untethered from precedent. It is does not constitute ‘using’ those deci- Second Amendment is further exacer- true that she has an extensive record sions to decide cases.’’ She further bated by her judicial record on the on the bench; however, the Senate’s in- stated: ‘‘decisions of foreign courts can bench and her hearing testimony, quiry into Judge Sotomayor’s suit- be a source of ideas informing our un- which demonstrates a clear hostility to ability for the Supreme Court cannot derstanding of our own constitutional gun rights. In Maloney v. Cuomo, de- merely rest on an overview of the cases rights. To the extent that the decisions cided January 29, 2009—post-Heller— she decided when she was constrained of foreign courts contain ideas that are Judge Sotomayor joined a cursory un- by precedent. Judge Sotomayor’s extra helpful to that task, American courts signed opinion holding that the second judicial statements are critically im- may wish to consider those ideas.’’ amendment is not a fundamental right portant to our examination of her fit- This reversion is extremely troubling and also that the amendment does not ness for a seat on the Supreme Court to me because it suggests that Judge apply to the States. In Maloney, Judge because when a judge is free from the Sotomayor was either misleading or Sotomayor incorrectly relied on an confines of precedent—as she was in simply disingenuous in her hearing tes- 1886 case—Presser—which did not use her speeches and as she will be if she is timony. Equally troubling is Judge the modern Due Process incorporation a Supreme Court Justice—she shows Sotomayor’s continued concern with analysis, a fact Judge Sotomayor failed her true colors and passions. world opinion of American law. Prior to note in her opinion. When asked at So the question remains, which to her hearing she asserted that ‘‘un- her hearing to discuss the holding in Judge Sotomayor are we getting? Will less American courts are more open to Presser, she responded that she had not Judge Sotomayor follow in the foot- discussing the ideas raised by foreign ‘‘read it recently enough to remember steps of Justice Ginsburg or will she cases, and by international cases, that exactly’’ what it said even though she adhere to her testimony during her we are going to lose influence in the had relied on it in a decision issued a hearing that she will strictly apply the world.’’ She echoed this concern after mere 7 months previously. Her dis- law to the facts? Will she revert back her hearing writing: ‘‘To the extent turbing lack of familiarity with the to the judicial philosophy she espoused that American courts categorically case suggests that she did not give prior to the hearing, the same way she refuse to consider the ideas expressed great weight to the constitutional reverted back to her prior statements in the decisions of foreign courts, it right at issue in Maloney. If Judge on the use of foreign law by American may be that foreign courts will be less Sotomayor’s ruling in Maloney is judges? Because I am not convinced likely to look to American law as a upheld by the Supreme Court, States that she can put aside her personal pol- source of ideas.’’ A judge’s job is not to could ban all guns and other weapons itics and preferences, I regretfully consider what the rest of the world for practically any reason. must oppose her nomination. thinks about us, it is to interpret the During her oral and written testi- I am pleased to come to the floor Constitution. mony, she also refused to acknowledge today to talk about our Supreme Court Her judicial philosophy with regard the fundamental right to self-defense, selection process. Judge Sotomayor is to the use of foreign law is extremely which predates the Constitution, and the third Supreme Court candidate I important because it suggests that she stated that she did not recall a case have had the privilege of getting to will not strictly interpret our Con- that addressed the right to self-defense, know, interview, and ask rigorous stitution. If Judge Sotomayor believes despite the fact that the Supreme questions of during the hearing. She it is appropriate to consult foreign law Court discusses the right to self-de- has a miraculous and wonderful per- in some cases, where will she draw the fense at length in Heller, the opinion sonal story. She is very accomplished. line? During her hearing testimony, upon which she relied. Judge She is to be admired for what she has Judge Sotomayor stated that the right Sotomayor even refused to discuss the accomplished. to bear arms is ‘‘settled law’’; however, legal test the Supreme Court uses to When we look at Supreme Court the recent Supreme Court decision in determine whether a right is funda- nominees, we are actually charged to District of Columbia v. Heller left mental, a basic legal test. do two things. One is to look at their many questions unanswered. One crit- In another notable case about which record of judicial behavior and assess ical unanswered question is whether Judge Sotomayor was questioned, she it, and then also to look at their record the right will be incorporated on to the gave short shrift to a constitutional that is out there besides their judicial States—meaning that the States will right that is vitally important to decisions. We did a very thorough job not have the right to outlaw the use of Americans, suggesting that she does in analyzing her 15-plus years as a Fed- firearms. If confirmed, would Justice not have the appropriate respect for eral judge and appellate judge. There

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00040 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.028 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8825 were some very concerning cases that other than looking at the three main committee that she would, in fact, we encountered for which we ques- parameters of which our Founders told never use foreign law to decide U.S. tioned her, and the record will fully us we must use in deciding cases at the cases. I got her to say yes. show her defense of that record and the Supreme Court. Well, I will tell you The only problem with that is, in the reversal rate that she had at the U.S. that a standard other than looking at answer to questions following the hear- Supreme Court. the facts and looking at the law and ing, she backtracked 180 degrees from It is interesting for the American looking at the Constitution doesn’t that statement which matched her pre- public to know that a Supreme Court meet the test of our Founders nor does vious statements in speeches and Justice is much different than an ap- it meet the test of our Constitution as writings which caused me to ask the pellate judge or even a Federal circuit it is spelled out in our Constitution. question in the first place. So in the judge because they, in fact, are not I wish to say as an American citizen, area of property rights, in the area of bound by precedent. As an appellate I think we should all be proud of this the second amendment and the funda- judge they have to follow precedent, nomination: a Hispanic female coming mental right to self-defense, and in the and when they don’t they get reversed, to the Supreme Court. But that is not area of foreign law, I believe her view- and Federal circuit judges have to fol- a good enough reason to say somebody point is something other than what I low precedent or they get reversed. But should become a Justice. So I go back see in the Constitution. a Supreme Court Justice has the free- to those three founding principles of Regrettably, I believe that disquali- dom to change precedent, and that is who should qualify. And who should fies her from being a Justice of the Su- why the inquiry into the candidacy and qualify is somebody who is going to preme Court. That when, in fact, we the qualifications of a Supreme Court strictly adhere to what our Founders look at the constitutional basis of how nominee is so important. It is also why said was the job of a Supreme Court judges are instructed to make law and our Founders wrote extensively on Justice, not with parameters that have to decide law—because every decision what should be the qualifications of a been discussed as maybe to be OK or makes law; it sets precedent—that Supreme Court Justice. parameters that fall outside of what when we extract from that the funda- Alexander Hamilton stated in Fed- our Founders said. mental right of self-defense, the writ- eralist Paper No. 78: ‘‘The interpreta- During my questioning and my visits ten, specific right to the second amend- tion of the law is the proper and pecu- with Judge Sotomayor, I found some ment, the written specific right of liar province of the courts.’’ very disturbing things. I asked her spe- property ownership and due process as- He further stated that it was ‘‘indis- cifically in the hearing: Do individuals sociated with that, and then we lay on pensable in the courts of justice’’ that have a fundamental right to self de- top of that the idea that it is more im- judges have an ‘‘inflexible and uniform fense? She wouldn’t answer yes to that portant for us to look good in our deci- adherence to the rights of the Con- question. Now, a fundamental right to sions to foreign governments than it is stitution.’’ A nominee who does not ad- self-defense predates our Constitution. to follow the oath, to follow the Con- here to these standards necessarily re- That is what liberty is all about. That stitution of the United States—make jects the role of a judge as dictated by is one of the bedrocks of our liberty. no mistake, I believe this is a wonder- the Constitution and should not be And the fact that she will not agree ful woman, and I think she has done a confirmed. that we as U.S. citizens have a funda- fairly good job as a judge on the appel- When we look at the Constitution, we mental right to self-defense is ex- late court, but she has been con- are told in the Constitution how judges tremely troubling. strained—as we measure her writings are to decide cases. They are given The reason that fundamental right is and her words with her decisions on three strict parameters. One is they so important, and it is guaranteed in cases, what we find is a conflict for are to look at the Constitution each the Constitution, is because on that those who would strictly follow what and every time. No. 2 is they are to rests the second amendment for which the Constitution tells us. look at the statutes that have been I find her somewhat less than com- I want our grandchildren to endure passed by the people’s representatives, fortable in accepting what our Found- and to accept and hold the same free- and they are to look at the facts. They ers said in the second amendment, doms we have. A U.S. Supreme Court are to look at the facts in a way that adopted almost 200-and-some-odd years Justice will determine that; just one will show never a bias—in other words, ago. can determine that. So I regretfully blind justice—looking at those critical The second area I have concern with announce and state that I will not be factors of what are the facts of the is in the area of property rights. It is able to vote for this very fine woman. case, what is the law, and what does very explicitly stated, and it is clear But I would also state that we need to the Constitution say. except in two cases in this country in be very concerned and very vigilant as You can be an appellate court justice the Supreme Court, which I hope that we see the Supreme Court make deci- for 50 years in this country and still someday will be reversed, that our sions, whether they are sitting Justices not qualify to be a Supreme Court Jus- right to property is a real right. There today or Justices to come, who violate tice. It is tremendously important who was a Kelo decision that has markedly both the intent, instruction, and the goes on the Supreme Court. The reason limited American citizens’ rights to spirit of the U.S. Constitution. it is important is because we have had property. On both her cases and her With that, I yield the floor and note a tendency in the last three decades to comments and her written testimony, I the absence of a quorum. abandon those three principles and use believe that right of Americans is at The PRESIDING OFFICER. The other principles. risk. I believe judges are going to de- clerk will call the roll. Let me mention two of them. One is cide we don’t have that fundamental The assistant legislative clerk pro- that we consider foreign law, that we right. I believe she believes, based on ceeded to call the roll. can become enlightened with foreign what she has ruled and what she has Ms. SNOWE. Mr. President, I ask law. I don’t doubt that we can become written and what she has said, that, in unanimous consent that the order for enlightened with what other people in fact, there are times when judges can the quorum call be rescinded. the world think about law, but the fact decide whether we have that right. The PRESIDING OFFICER. Without is our Founders said: This is our law. That is inherently wrong and 180 de- objection, it is so ordered. The Constitution is our law. And we grees against what our Constitution Ms. SNOWE. Mr. President, I rise to have a way of setting law which comes guarantees us as individual citizens. speak to the nomination of Judge through the Congress. That is what we The final area has to do with the use Sonia Sotomayor to be the next Asso- shall look at with one exception, and of foreign law. In her speeches and ciate Justice of the Supreme Court of that is on trade and treaties where we statements she was highly critical of the United States. have to consider the agreements and people who were critical of the use of After a careful and considerate re- foreign laws related to those treaties. foreign law. Upon questioning in the view of her testimony before the Sen- The other tendency which has been committee, she retracted and moved ate Judiciary Committee and her over- espoused by our President is an empa- away from those statements. I specifi- all record, her distinguished judicial thy standard, that we can somehow— cally asked her if she would assure the background, and a personal meeting

VerDate Nov 24 2008 02:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00041 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.065 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8826 CONGRESSIONAL RECORD — SENATE August 5, 2009 with her in June, I have concluded she In reviewing her personal credentials, As the judge elaborated, she believes should be confirmed as the next Asso- Judge Sotomayor’s accomplishments that the law can and should develop, ciate Justice of the Supreme Court. are equally noteworthy. If confirmed, but that such development should I have not arrived at my decision she will become the first Hispanic and occur only ‘‘incrementally’’ through lightly. It has been said that, of all the only the third woman ever to serve on the measured development of analo- entities in government, the Supreme our Nation’s highest Court. Along the gous cases. And when I asked her which Court is the most closely identified way, she has ascended from modest opinions best reflect her judicial meth- with the Constitution—and that no means to excel in our country’s most od, Judge Sotomayor candidly replied, other branch or agency has as great an prestigious schools and our judiciary’s ‘‘Read any of my opinions and you will opportunity to speak directly to the highest offices. In doing so, she now see my structure.’’ And the record sup- rational and moral side of the Amer- stands as a model for others to follow ports that assertion—the structure of ican character; to bring the power and in summoning their own courage to her opinions shows a consistent, me- moral authority of government to bear break barriers and pursue dreams. And thodical and careful approach to decid- directly upon the citizenry. she does so with a personal manner ing cases. The Supreme Court passes final legal that I find to be refreshingly candid As she testified at her hearing, her judgment on the most profound social and forthright. methodology is to ‘‘apply the law to issues of our time. The Court is unique- This brings us to the more particular the facts at hand’’ and keep a ‘‘rig- ly designed to accept only those cases factors we must consider when pro- orous commitment to interpreting the that present a substantial and compel- viding our consent on a President’s Constitution according to its terms; in- ling question of federal law; cases for nominee for Associate Justice—judicial terpreting statutes according to their which the Court’s ultimate resolution temperament, methodology, integrity terms and Congress’s intent; and hew- will not be applied merely to a single, and philosophy. By their very nature, ing faithfully to precedents . . .’’ She isolated dispute—but, rather, will these attributes are often challenging stated further her view that the ‘‘proc- guide legislatures, executives, and all to measure, but they can be ess of judging is enhanced when the ar- other courts in their broader develop- ascertained through a careful analysis guments and concerns of the parties to of a nominee’s complete record. ment and interpretation of law and pol- the litigation are understood and ac- With regard to the first consider- icy. knowledged. . . . That is why,’’ she ex- ation, judicial temperament, we all In the end, ours is a government of agree that it is absolutely essential plained, ‘‘I generally structure my both liberty and order, State and Fed- that a judge be fair, open-minded, and opinions by setting out what the law eral authority, and checks and bal- respectful. Our citizens simply must requires and then by explaining why a ances. The remarkable challenge of have confidence that a judge who contrary position, sympathetic or not, calibrating these fundamental balance weighs their legal claims does so with is accepted or rejected. That is how I points is entrusted ultimately to the an even temperament. A judge must be seek to strengthen both the rule of law nine Justices of the Supreme Court of truly committed to providing a full and and faith in the impartiality of our jus- the United States. fair day in court, while projecting a tice system.’’ To help meet this extraordinary chal- sincere equanimity and respect for the Indeed, the integrity of the judge’s lenge, any nominee for the Court must, law. When these attributes are not methodology can be measured in a va- as I stated during the confirmations of clearly present in our judges, the pub- riety of ways. First, the judge has a Chief Justice John Roberts and Asso- lic justifiably begins to lose faith in low reversal rate. Research on Judge ciate Justice Sam Alito, have a power- the integrity of our courts. Sotomayor’s performance on the trial ful intellect, a principled under- This issue has been rightly explored court demonstrates she was overruled standing of the Court’s role, and a and satisfactorily answered with Judge in only 6 of her over 400 trial bench de- sound commitment to judicial method. Sotomayor. For example, both the New cisions. Westlaw reports that, in her 11 A nominee must have the capacity to York City and American Bar Associa- years on the appellate court, the judge engender respect among the other jus- tions who reviewed the nominee on all has participated—as I referenced ear- tices in order to facilitate the con- key criteria gave the judge their high- lier—in over 3,100 cases and, of those sensus of a majority. And to warrant est ratings. Robert Morgenthau, the cases, the White House reports that the Senate confirmation, the nominee judge’s former employer and highly re- Judge has only been reversed another must have a keen understanding of, garded district attorney of New York six times. In each of those circuit cases and a disciplined respect for, the tre- County since 1975, testified that the she was part of a unanimous three- mendous body of law that precedes her. judge is ‘‘fair,’’ ‘‘non-political,’’ and judge panel, and the cases involved the It is with these high standards that ‘‘highly qualified for any position in interpretation—not of important con- we should evaluate the record of Judge which a first-rate intellect, common stitutional provisions—but of very Sonia Sotomayor. Reviewing her pro- sense, collegiality and good character technical statutes that, in several in- fessional credentials, it is clear that would be assets.’’ And former Federal stances, had created clear divisions of Judge Sotomayor is well qualified. She judge, colleague, and FBI Director opinion among several of the circuit has served for nearly 11 years on the Louis Freeh, has called Judge courts. U.S. Court of Appeals for the Second Sotomayor ‘‘fair, neutral, nonpartisan Moreover, three of the six circuit Circuit where she has participated in [and] open-minded . . .’’ And, indeed, I cases created 5–4 opinions in the Su- over 3,100 cases. The judge also pre- believe that the Judge’s professional preme Court, one created a 6–3 split, viously served on the U.S. District manner was in evidence during all as- and one produced this unusual align- Court for the Southern District of New pects of her 4-day appearance before ment: Justices Ginsburg and Scalia to- York for six years where she decided the Judiciary Committee. gether in the majority, and Justices over 400 additional cases. She also We look next at the nominee’s judi- Breyer and Alito together in dissent. worked for 8 years in private practice cial methodology which directly re- These facts combine to show the rel- and 4 years in the highly respected of- flects her commitment to the essential ative difficulty of, and the reasonable fice of the district attorney for the tenets of care, discipline and fairness. room for debate in, these appellate County of New York. According to the Here, the judge was very clear and di- cases. White House, if confirmed, Judge rect in our June meeting. Her approach Next, there is the measurement of Sotomayor would bring more Federal to all cases is to carefully identify the the judge’s concurrence and dissent judicial experience to the Supreme facts—what she characterized as a rates. There, the data demonstrate Court than any Justice in 100 years, prized skill that she learned as a suc- that the judge’s method of deciding and more overall judicial experience cessful young prosecutor—and then fol- cases is consistent with that of her col- than anyone confirmed for the Court in low the law: What it says; what end leagues on the Second Circuit. For ex- the past 70 years. So I applaud the was meant to be accomplished; what ample, research sources indicate that, President for selecting an individual legislative intent it was meant to ad- despite the thousands of her appellate who clearly possesses the professional vance; and how, if at all, other courts opinions, Judge Sotomayor has only credentials to serve on the Court. have answered those questions. dissented in 21 cases, and has written

VerDate Nov 24 2008 02:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00042 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.066 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8827 separate concurring opinions in only 22 ale. And the panel’s summary affirm- identifying and applying an entirely others. ance, albeit adopting verbatim the long new standard. Indeed, both the trial Finally, there is the degree to which opinion of the court below, simply and Sotomayor courts applied the other courts and scholars find the failed to meet that expectation. then-existing ‘‘four-fifths rule’’ of the judge’s method of decision worthy of When I asked Judge Sotomayor in EEOC title VII regulations and the citation. There, data compiled by law our June conversation—and when she seemingly settled circuit precedent of professors and students from three uni- was queried before the Judiciary Com- the ‘‘Bushy line of cases’’ in deter- versities reveal that, between 1999 and mittee—she stated that she and her mining that a significant disparity in 2001, the judge’s opinions were cited by colleagues gave the case their full at- the results of an employment test is other courts and scholars at meaning- tention and review, and that only after itself adequate evidence of unlawful ful rates—4.4 court citations and 4.6 that full and fair consideration did disparate impact discrimination. law review citations per opinion. And they determine that their own written On appeal, the Supreme Court between 2004 and 2006, those rates rose opinion was not necessary, given the changed the rule, saying in essence to 8.5 court citations and 4.8 law review district court’s exhaustive 48-page that such a significant disparity in test citations per opinion. These more re- opinion applying the seemingly clear results is no longer itself adequate evi- cent rates are not only higher than the ‘‘four-fifths rule’’ of the EEOC regula- dence. Importing anew from 14th percentage of citation rates for other tions and the seemingly settled prece- amendment jurisprudence, the Court distinguished Federal appellate judges, dent of what the Judge referred to in said that the new rule for interpreting they underscore the increasing respect her testimony as the Bushy line of the title VII statute demands a that Judge Sotomayor’s work is gar- cases—this is Bushy v. New York State ‘‘strong[er] basis in evidence,’’ such as nering. Civil Service Commission, Kirkland v. evidence that the test was ‘‘not job re- I turn now to the third qualification: New York State Department of Correc- lated and consistent with business ne- judicial integrity. Here, there are those tional Services, and Hayden v. County cessity, or if there existed an equally who have suggested that the judge will of Nassau. In reviewing a petition for valid, less discriminatory alternative use her office to engage in ‘‘judicial ac- rehearing in Ricci, six of the Judge’s that served the city’s needs but that tivism’’ and advance a certain social or own colleagues were not persuaded by the city refused to adopt.’’ political agenda that suits her personal that argument. Yet, another six of her Therefore, based on the record, it preferences. Principally, these critics colleagues were so persuaded. would appear the district and circuit point to the New Haven firefighters’ Additionally, the judge testified be- judges fulfilled their assigned job of ap- case and her Berkeley and Duke fore the Judiciary Committee that plying existing precedent to the exist- ‘‘the practice is that about 75 percent speeches as examples of such activism, ing rule. And in weighing all of the of circuit decisions are decided by sum- and I believe these instances have war- facts, given Judge Sotomayor’s assur- mary order, in part because we can’t ranted strict scrutiny. ance to me and the committee that she handle the volume of our work if we At the outset, it bears noting the gave the case her full consideration, were writing long decisions in every White House report that, in her 11 given her established reputation for case; but more importantly, because years on the Second Circuit, Judge careful decision-making, and given the not every case requires a long opinion Sotomayor has agreed with the result daily reality of the Second Circuit’s if a district court opinion has been favored by the Republican appointees burgeoning caseload, particularly with clear and thorough on an issue . . .’’ in 95 percent of the published panel de- Yet, the bottom line is, in my view, the surge of post-September 11 immi- cisions where the panel included at this particular case was simply too gration cases, I cannot conclude that least one judge appointed by a Repub- sensitive and complex—with signifi- the decision in Ricci should itself dis- lican president. This statistic is evi- cant societal implications—to leave to qualify this nominee. dence of a nonpartisan or nonideolog- a summary order. And, therefore, the Mr. President, I was also concerned— ical approach to judging. three-judge panel should have issued like many Americans—by Judge At the same time, I have shared the its own, comprehensive opinion and ex- Sotomayor’s speech at Berkeley in concerns expressed specifically about planation. 2001, and specifically by the following the New Haven firefighters’ case—as On the matter of the merits of the line that appears to suggest that the many have voiced opposition to both case, Judge Sotomayor ruled that the judge decides cases more by personal her decision as well as the curt and city acted lawfully in trying to meet identity than by fidelity to the law: summary opinion that was used to dis- its obligations under Federal employ- I would hope that a wise Latina woman miss the complaint. I sympathize with ment discrimination law to avoid dis- . . . would more often than not reach a bet- the plaintiffs, who were told the rules parate impact discrimination when ter conclusion than a white male. . . . for qualifying for a promotion, who be- making certain employment pro- To thoroughly examine this question lieved they were participating in a motions. And I understand some be- with regard to the judge’s qualifica- fixed process for determining their fu- lieve this decision evinces the judge’s tions, I believed it was necessary to re- ture career advancement, who did what predisposition to rule for minority liti- view both the entirety of her speech, as was asked of them, and then, when it gants. One well-respected DC law firm, well as her testimony before the Sen- was all over, were informed that what however, has found that the judge has ate Judiciary Committee, to under- they had done wasn’t good enough. So decided nearly 100 race-related cases in stand to the fullest extent possible her I understand the frustration. her 11 years on the Second Circuit, and intention behind those comments, be- I approached Judge Sotomayor’s han- has effectively rejected such race-re- cause I agree that they are dis- dling of this case by looking at both lated claims by a margin of ‘‘roughly concerting. the merits—that is, what was decided eight to one.’’ In that light, I note that the judge, in in the case, as well as the process, or Others have suggested that the Su- answering a question from the com- how, the case was decided. As regards preme Court’s reversal of the Second mittee, offered that it is the job of a the process, as we all well know, the Circuit raises questions of the judge’s judge to apply the law, and that it is panel that included Judge Sotomayor qualifications to serve. In evaluating the law, rather than one’s own sym- wrote only a three-paragraph opinion that possibility, I have taken into ac- pathies, that ‘‘compels conclusions in concluding that, ‘‘We affirm, for the count that the Supreme Court took cases.’’ reasons stated in the thorough, this action with a 5–4 vote, with four I also recall the judge’s response thoughtful, and well-reasoned opinion complex and nuanced opinions, as well when I asked her specifically about of the court below.’’ as an admission from Justice Scalia this speech during our opportunity to Now, it may well be that the district that the underlying question presented meet one-on-one. I said that com- judge’s opinion was ‘‘thorough, by the case—when affirmative action mentators had criticized that portion thoughtful, and well-reasoned.’’ But becomes unlawful discrimination—is of her speech because it suggested that the confidence of the litigants and pub- ‘‘not an easy one.’’ gender and ethnicity enable her to lic alike in any court relies on their op- And I have considered that the High make ‘‘better’’ decisions than a male portunity to explore a judge’s ration- Court reached its decision only by judge of a different ethnicity. Judge

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00043 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.029 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8828 CONGRESSIONAL RECORD — SENATE August 5, 2009 Sotomayor, in replying, suggested that ments. It is this understanding that de- the people have accepted the principle those who have concerns must ‘‘read fines the scope and reach of the pos- of the decision as an ‘‘embedded . . . the whole speech;’’ that she was only sible interpretations. I believe it is part of our national culture.’’ Judge trying to say—she admits now therefore legitimate to read and under- Sotomayor agreed with that position. inartfully—that ‘‘judges are human stand her comments within this con- This expressed adherence to applying beings and they necessarily will be af- text. It has also been argued that—as precedent has achieved significance in fected by who they are. But this only the Supreme Court only accepts and many passionately contested areas of makes them attuned to certain case as- decides about 80 of approximately 8,000 the law, such as the second amend- pects; it does not replace following the cases per year, Federal circuit courts ment, which brings me to the concerns law.’’ of appeal often do, as the judge noted raised with respect to Judge In evaluating these responses, I re- in her testimony effectively become Sotomayor’s decision in Maloney v. called prominent judges in our history the final decisionmaker on what the Cuomo. I happen to be a strong, long- who also raised this issue. law—and by necessary extension, the time defender of second amendment Indeed, this was the subject to which policy it advances—is. rights, as evidenced by my amicus sup- Justice Felix Frankfurter referred to Given all of these factors, again, in port for Mr. Heller in his recent case when he said, long ago, that one of the considering the entirety of her record, before the Supreme Court, in District greatest challenges for all judges, be- it is fair to conclude that the Duke of Columbia v. Heller. Accordingly, I cause they are all human, is to recog- University speech is not evidence that am very well aware the issue of wheth- nize their own personal views and de- Judge Sotomayor would practice judi- er second amendment protections are velop the patience, insights and dis- cial activism on the Supreme Court. to be construed as incorporated against cipline to compensate for them. When I Finally, we have a fourth and final acts of a State government—as opposed raised Justice Frankfurter’s comments qualification—judicial philosophy, to the Federal Government—has as- personally with Judge Sotomayor, she judge’s sense of limits and horizons and sumed renewed importance and visi- agreed and asserted that was ‘‘exactly’’ great promises of our Constitution and bility since the Court’s recent land- the point she was attempting to com- the nominee’s view of the proper role of mark decision ruling in Heller. municate in her Berkeley speech. the Supreme Court in deciding whether I also understand that several long- She also asserted in our meeting, and to take cases and, once taken, the un- standing Court precedents have been reaffirmed in her committee testimony derlying philosophy used to rule upon widely construed by State and Federal that, ‘‘no racial or ethnic group has a them. courts around the country, including market on sound judgment.’’ She ex- On this point, I note first the judge’s the Maine Supreme Judicial Court, not plained that some judges, like many answer when asked whether she sub- to incorporate the second amendment. lay people, have ‘‘tin ears’’ on certain scribes to one or another school of con- Judge Sotomayor in Maloney v. matters, and that is why the collegial stitutional interpretation. She said: ‘‘I Cuomo, and her two panelists, have decision-making is so vital—because don’t use labels.’’ I also recall the stated that those consistent interpre- sharing different perspectives and study by the New York University Law tations of the Supreme Court’s prece- blending them into consensus opinions School’s Brennan Center for Justice dent were binding upon them. And serves as both a ‘‘spotlight and a fil- which analyzed over 1,100 constitu- while a panel in the ninth circuit in ter.’’ She spoke of how judges, like all tional cases decided during Judge Nordyke v. King bypassed such prece- people, are inescapably affected by Sotomayor’s tenure on the second cir- dent, a seventh circuit panel, led by their own life experiences, but that cuit and found as an appellate judge, Judge Shakley, sharply criticized the Nordyke decision for doing so, and in- those experiences only affect how ‘‘at- she voted with the majority in over 98 stead in NRA v. City of Chicago agreed tuned’’ judges are to certain aspects of percent of constitutional cases and with Judge Sotomayor’s opinion be- cases. They do not replace the require- that 94 percent of her constitutional cause they, too, concluded that the Su- ment to follow and apply the law con- decisions have been unanimous. Such preme Court’s precedent was binding sistent with the limited role and spe- figures argue strongly that the judge’s upon them. Last week, the full ninth cific oath of their office. constitutional approach is squarely in circuit itself agreed to reconsider its A review of Judge Sotomayor’s deci- the mainstream. decision in the Nordyke decision. sions and her resulting affinity, dissent The inquiry into any nominee’s judi- The Supreme Court may well revisit and reversal rates that I described ear- cial philosophy is particularly signifi- this issue soon. But the issue before us lier bolster the judge’s statements that cant for those of us who value the in the Senate right now is whether the she understands this imperative—and Court’s landmark rulings. Decisions judge has demonstrated, as she de- that she decides cases based not on per- protecting the rights of privacy, civil scribes, ‘‘fidelity to the law’’ and prece- sonal identities or classifications, but rights, and women seeking equal pro- dent as we would expect—because sev- by ‘‘fidelity to the law.’’ tection in the workplace—to name a eral longstanding Supreme Court A final question about the judge’s ju- few—comprise a crucial and settled precedents have been widely construed dicial integrity has been raised from body of the Court’s case law. Entire by State and Federal courts alike not her remark in 2005 at Duke University generations of Americans have come to to incorporate the second amendment, that the ‘‘Court of Appeals is where live their lives in reliance upon the and because the Supreme Court in foot- policy is made.’’ This comment has un- Court’s rulings in these key areas, and note 23 of the Heller majority opinion derstandably raised the specter of a overruling these precedents would sim- expressly said the Court was not decid- commitment to judicial activism, and ply roll back decades of societal ad- ing the incorporation question. More- is therefore a legitimate cause for ex- vancement and impose substantial dis- over, given her demonstrated adher- amination. When I raised this issue ruption and harm. ence to stare decisis, while no one can with the judge she responded that she Therefore, central to the question of predict the future with certainty, it is was referring to the educational dif- this nominee’s judicial philosophy are reasonable to conclude she will con- ference between trial and appellate her views on one of the cornerstones of tinue to follow precedent, as also evi- court clerkships—how a trial court jurisprudence, and that is judicial denced by her testimony to the Judici- clerkship focuses primarily on resolv- precedent. ary Committee in which she stated: ing limited factual disputes and how an In our June meeting, I asked whether The Supreme Court did hold that there is appellate court clerkship focuses pri- she agreed with Chief Justice in the second amendment an individual right marily on cases involving broader ques- Rehnquist’s observation in Dickerson to bear arms. And that is its holding, and tions of how the law ought to be inter- v. United States which upheld the fa- that is the Court’s decision. I fully accept preted. mous decision Miranda v. Arizona. that. An essential component of weighing There, the Chief Justice wrote there Finally, what a powerful and pro- the competing interpretations prof- are situations where constitutional found message it will send to have fered by appellate advocates is for the precedent—that a Justice might have Judge Sonia Sotomayor join with Jus- court to understand the practical effect believed had been wrongly decided— tice Ruth Bader Ginsburg on the high- of the advocates’ competing argu- should nevertheless be upheld because est Court in the land. The fact is, it

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00044 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.030 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8829 does make a difference who women and than written law when deciding cases. published in the Berkeley La Raza Law girls see at the pinnacles of govern- When then-Senator Obama voted Journal, she dismissed the idea that ment, just as it matters in all fields of against the confirmation of Chief Jus- ‘‘judges must transcend their personal endeavor. As Justice Ginsburg has said tice John Roberts, he said this: sympathies and prejudices and aspire recently: [W]hile adherence to legal precedent and to achieve a greater degree of fairness My base concern about being all alone was rules of statutory or constitutional con- and integrity based on the reason of the public got the wrong perception of the struction will dispose of 95 percent of the law,’’ saying that ‘‘by ignoring our dif- Court. It just doesn’t look right in the year cases that come before a court, so that both ferences as women or men of color, we a Scalia and a Ginsburg will arrive at the 2009 . . . It matters for women to be here at do a disservice both to the law and so- the conference table to be doing everything same place most of the time on those 95 per- cent of the cases—what matters on the Su- ciety.’’ This certainly doesn’t sound that the Court does . . . Women belong in all like a judge who believes in fidelity to places where decisions are being made. preme Court is those 5 percent of cases that are truly difficult. In those cases, adherence the law. Given the totality of the record be- to precedent and rules of construction and In the same speech, Judge Sotomayor fore us, I have concluded from Judge interpretation will only get you through the famously said: Sotomayor’s testimony regarding both 25th mile of the marathon. That last mile Justice O’Connor has often been cited as can only be determined on the basis of one’s her judicial methodology and her judi- saying that a wise old man and a wise old deepest values, one’s core concerns, one’s cial philosophy that she is not pre- woman will reach the same conclusion in de- broader perspectives on how the world disposed to overturning settled prece- ciding cases. I am not so sure that I agree works, and the depth and breadth of one’s with that statement. I would hope that a dent. Obviously, none of us can know empathy. with certainty how Judge Sotomayor wise Latina woman with the richness of her I don’t dispute that there is a small would vote on any particular case. But experiences would more often than not reach percentage of cases that are truly dif- we can assess her methodology and a better conclusion than a white male who ficult. But the question is: Do we want analysis in approaching cases by re- hasn’t lived that life. these cases decided by what the law viewing her responses to the com- When asked about this statement at says or by a judge’s own personal em- mittee and to other Members through- her confirmation hearing, Judge pathies? I reject the idea that these out this process. Sotomayor said: cases cannot be resolved by staying In that light, in evaluating the essen- The words I used, I used agreeing with the faithful to the text of the Constitution, tial qualifications as I have outlined sentiment that Justice Sandra Day O’Connor and it is dangerous to the rule of law to them, and reviewing the entire judicial was attempting to convey. suggest otherwise. Really? Are we really supposed to be- record of Judge Sotomayor, I find a In June, I came to the floor and stat- lieve that each time Judge Sotomayor fairminded judge with a deep respect ed my opposition to Judge Sotomayor’s said, ‘‘I’m not so sure I agree with that for the rule of law and the independ- nomination based on numerous past ence of the courts, and a judicial meth- statements she made embracing an ac- statement,’’ she actually meant ‘‘I od committed to stability in the law. It tivist judiciary and endorsing the idea agree with that statement’’? Judge is, therefore, my conclusion that based that judges should look to areas out- Sotomayor’s explanation requires some on the totality of the record and her side of the law when deciding cases. suspension of disbelief. distinctive qualifications, Judge Sonia However, when Judge Sotomayor ap- Also at Berkeley, Judge Sotomayor Sotomayor has earned the distinction peared before the Judiciary Committee said: of serving as the next Associate Justice last month, she consistently took posi- Whether born from experience or inherent of the Supreme Court. tions contrary to her past writings and, physiological or cultural differences, our Mr. President, I yield the floor. gender and national origins may and will in many cases, did a complete 180. This make a difference in our judging. The PRESIDING OFFICER. The Sen- leads me to ask which Sotomayor are ator from Kansas. we voting to confirm—the liberal ac- At her hearing, she said: Mr. BROWNBACK. I ask the Pre- tivist or the modest judge who believes I do not believe that any ethnic, racial, or siding Officer to inform me when 2 in strictly applying the law as written? gender group has an advantage in sound minutes is left of my time. Judge Sotomayor attempted to as- judging. Mr. President, I rise today to discuss sure Senators that the real Sotomayor Again, are we being asked to believe the nomination of Judge Sonia is reflected in her 17-year record on the that Judge Sotomayor is either a very Sotomayor to be a Justice of the U.S. bench. I find this argument interesting poor communicator or her past state- Supreme Court. Ultimately, the core of but unpersuasive, because as a judge on ments have been continually taken out this debate, I believe, is over the proper the court of appeals, Judge Sotomayor of context and misinterpreted? I don’t role of the Court. Our side tends to be- has been constrained by Supreme Court think she is a bad communicator at all. lieve that the Court does not make pol- precedent. That is the position she In her writings, Judge Sotomayor icy and must stay within the written held. Her judicial record tells us very has repeatedly rejected the principle of text of the Constitution. The other side little about who the real Sotomayor impartiality and embraced the novel sees the Constitution more often as a will be when on the Supreme Court. It idea that a judge’s personal life story living document and that its meaning is in her speeches and writings where should come into play in the court- changes along with the attitudes of so- she is unrestrained that we find the room. But when she was in front of the ciety. real views on the fundamental ques- Senate Judiciary Committee, with the When the courts improperly assume tions that she will decide as a Justice Nation watching, she suddenly em- the power to decide issues more polit- on the Supreme Court. braced the judicial philosophy of Chief ical than legal in nature, the people When asked at her confirmation Justice Roberts. naturally focus less on the law and hearing to summarize her judicial phi- The past positions simply cannot be more on the lawyers who are chosen to losophy, she said: ‘‘Fidelity to the reconciled with what she said before administer it. Some are key to impose law.’’ I completely agree with this phi- the Judiciary Committee. We do not their policy agendas through the judi- losophy, but I have difficulty recon- know what she actually believes. cial process. Others want judges who ciling the words she chose at her con- In a 2005 appearance at Duke Univer- will stick to interpreting the law rath- firmation hearing with the statement sity Law School, she said, ‘‘The court er than making it. It is beyond dispute she made in 1996 at Suffolk University of appeals is where policy is made.’’ that the Constitution and its Framers Law School when she stated: ‘‘The law During her confirmation hearing, she intended for judges to satisfy the latter that lawyers practice and judges de- said, ‘‘Judges don’t make law’’ and criteria; that is, to stay within the law clare is not a definitive capital ‘L’ law they ‘‘look at the Constitution and see rather than making it. that many would like to think exists.’’ what it says.’’ President Obama has voiced his sup- The only reasonable interpretation to Even some of Judge Sotomayor’s de- port for judges looking to the Constitu- that is that she pledges fidelity to fenders have criticized her flip-flopping tion as a living document malleable to whatever she says the law is. on her views. Georgetown Law Center the times. He has said he will pick In a 2001 famous speech she gave to professor Louis Michael Seidman, a lib- judges who will look to empathy rather Berkeley Law School, which was later eral constitutional law scholar, said:

VerDate Nov 24 2008 02:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00045 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.067 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8830 CONGRESSIONAL RECORD — SENATE August 5, 2009 I was completely disgusted by Judge gay or disabled or old,’’ and that dif- Ranking Member SESSIONS for the dig- Sotomayor’s testimony today. If she was not ficult cases should be decided by ‘‘what nified manner in which the committee perjuring herself, she is intellectually un- is in the justice’s heart.’’ handled the nomination process of qualified to be on the Supreme Court. If she When asked about President Obama’s Judge Sotomayor. Each Senator on our was perjuring herself, she is morally unquali- fied. empathy standard by Senator KYL, committee had ample time to review Judge Sotomayor’s background and There was never any doubt that this Judge Sotomayor said this: ask questions of the nominee. Her an- President would nominate liberal I wouldn’t approach the issue of judging in the way the President does. He has to ex- swers were as responsive as possible judges who shared his views. He won plain what he meant by judging. I can only and gave me confidence that she under- the election. Judge Sotomayor’s record explain what I think judges should do, which stood the appropriate role of a judge in on the bench has been fairly typical of is judges can’t rely on what is in their heart. applying the law. a liberal judge. However, there have Are we really to believe the Presi- The Supreme Court, our Nation’s been some notable exceptions. dent chose a nominee who outright re- After the Supreme Court ruled that highest Court, holds a tremendous re- jects his view of justice? I am con- individuals have a constitutionally sponsibility in deciding cases of funda- cerned that the President has, in fact, protected right to gun ownership in the mental issues that have real impacts case of District of Columbia v. Heller, nominated an individual who shares his on the lives of Americans. In recent Maloney v. Cuomo, another second view that the Constitution is a living years, we have seen less of a consensus amendment case, was argued in front document, and that is why I will be on the Court, with many 5-to-4 deci- of the Second Circuit. In a per curiam voting against her confirmation. sions. Regrettably, too many of these opinion issued by a panel that included After watching her performance in decisions have been at times when the Judge Sotomayor, the Second Circuit front of the Judiciary Committee last Court has ignored congressional intent ruled that ‘‘the Second Amendment ap- month and observing that performance, and precedent to instead move forward plies only to limitations the Federal I learned something I have long sus- with its own agenda. It has been the so- Government seeks to impose on this pected: Judge Sotomayor had no choice called conservative Justices who have right.’’ They also said: but to reverse many of her past state- been the most active in ignoring the Legislative acts that do not interfere with ments. A judge who openly embraces intent of Congress in protecting indi- fundamental rights or single out suspect an activist judiciary, using empathy to vidual rights. For example, in the classifications carry with them a strong pre- pick winners and losers, using his or Ledbetter decision, the Court denied sumption of constitutionality and must be her own race and gender to decide the women a remedy against employer dis- upheld if rationally related to a legitimate outcome of cases, using foreign law, crimination pay equity cases, thus state interest. who does not believe the second amend- eliminating protection intended by In other words, the second amend- ment is a fundamental right and sees Congress. In the Riverkeeper and ment does not protect a fundamental judges as policymakers—all those Rapanos decisions, the Supreme Court right. I believe the second amendment things—is a judge who cannot be con- narrowed the congressional protections protects a fundamental right, just as firmed by this body despite 60 Members for clean water. In the Northwest Aus- the first amendment protects a funda- belonging to the party of the Presi- tin Municipal Utility District decision, mental right. The Supreme Court dent. the Court challenged congressional au- agrees it protects a fundamental right, I hope President Obama has learned thority to extend the Voting Rights and the Founders most certainly be- that important lesson as well, that the Act. In each of these cases, the Su- lieved there was a fundamental right to people of the country want a Justice on preme Court actively ruled to restrict keep and to bear arms. the Supreme Court to be a justice and laws passed by Congress to protect in- In a high-profile racial discrimina- not a policymaker; to be a judge and dividual rights. I want the next Justice tion case, Judge Sotomayor’s panel not somebody who goes with the sym- to respect legal precedent and congres- issued an unpublished summary order pathies in their heart; someone who sional intent and advance, not restrict, denying a group of firefighters a pro- sticks with the Constitution and does individual rights. motion they had earned because the not try to rewrite it. If the President In determining whether to support promotion exam had a disparate im- realizes that, it will be a victory for Judge Sotomayor for this lifetime ap- pact on minorities. Sotomayor and her the rule of law. And that is what this is pointment, I looked at several factors. two colleagues’ actions were troubling about. First, I believe judicial nominees must because by issuing an unpublished sum- Mr. President, I yield the floor, and I have an appreciation for the Constitu- mary order, they avoided bringing the suggest the absence of a quorum. tion and the protections it provides to case to the attention of other judges on The PRESIDING OFFICER. The each and every American. I also believe the Second Circuit. It was only after clerk will call the roll. each nominee must embrace a judicial another judge of the circuit read about The assistant legislative clerk pro- philosophy that reflects mainstream the case in a New Haven newspaper and ceeded to call the roll. American values, not narrow ideolog- requested that the full Second Circuit Mr. CARDIN. I ask unanimous con- ical interests. I believe a judicial nomi- rehear the case that Sotomayor’s ac- sent that the order for the quorum call nee must respect the role and responsi- tions came to light. The case was even- be rescinded. bility of each branch of government. I tually appealed to the Supreme Court, The PRESIDING OFFICER. Without look for a strong commitment and pas- and in a 5-to-4 opinion, the Court re- objection, it is so ordered. sion for continued progress in civil versed the Second Circuit. Perhaps Mr. CARDIN. I ask unanimous con- rights protections. even more importantly, the Court was sent that the time in this hour be di- I understand there is a careful bal- unanimous—unanimous—in rejecting vided in the following manner: Senator ance to be found. Our next Justice Sotomayor’s opinion that simply hav- CARDIN, 15 minutes; Senator BAUCUS, 15 should advance the protections found ing a disparate racial impact was jus- minutes; Senator MERKLEY, 10 minutes; in the Constitution but not disregard tification to void the test. The dis- Senator AKAKA, 10 minutes; and Sen- important precedents that have made senters at the Supreme Court believed ator LIEBERMAN, 10 minutes. society stronger by embracing our civil a jury trial should have been granted The PRESIDING OFFICER. Without liberties. I believe Judge Sotomayor to examine the evidence and determine objection, it is so ordered. understands this balance and will apply whether the test was job related. Mr. CARDIN. Mr. President, the con- these principles appropriately. Sotomayor clearly erred in her deci- firmation of Judge Sonia Sotomayor to During the hearing, we all learned sion. be Associate Justice to the Supreme more about Judge Sotomayor’s ap- Judge Sotomayor was nominated by Court will be my first Justice con- proach to the law and to judging. She a President who said judges should firmation vote as a Senator. It is an clearly outlined for us her fidelity to have ‘‘the empathy to recognize what honor for me to represent the people of the law, respect for precedent, and due it’s like to be a young teenaged mom; Maryland in the Senate and to serve on deference to the intent of Congress. the empathy to understand what it’s the Judiciary Committee. I particu- With each question, our committee and like to be poor or African-American or larly thank Chairman LEAHY and the American public gained a greater

VerDate Nov 24 2008 02:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00046 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.068 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8831 appreciation of Judge Sotomayor’s ground demonstrate that she under- on the Court ready to question knowledge of and commitment to the stands these principles and that she Congress’s right to extend the basic rule of law. Her command of legal will apply sound legal precedent to voting protections of the Voting Rights precedent and her ability to challenge contemporary challenges advancing in- Act, it is refreshing to hear Judge attorneys in their arguments will bode dividual rights. Sotomayor say in the Hayden case: ‘‘I well for reaching the right decisions in During the confirmation hearing, I trust that Congress would prefer to the Supreme Court. She is mainstream spent the majority of my time ques- make any needed changes itself rather in her judicial decisions and opinions, tioning Judge Sotomayor on the topic than have the court do so for it.’’ and she possesses a correct sense of the of civil rights. We discussed the right I have great confidence that Judge role of a judge in deciding a case based to vote, women’s rights, minority Sotomayor understands the impor- on sound legal precedent and the facts, rights, including race and gender tance of civil rights and the impor- giving due deference to congressional issues, the environment, and the im- tance of protecting those rights for the intent. portance of diversity of the courts American people. Over the past few months, our com- throughout society. While difficult I believe Judge Sotomayor will de- mittee has had time to thoroughly re- questions will continue to come before fend Congress’s intent with the passage view Judge Sotomayor’s record. From the Court, for me, it bears repeating of the Clean Water Act, the Clean Air the moment she was nominated by how important it is to have Justices on Act, and many others, based on her de- President Obama, we knew Judge the Supreme Court who will apply es- cision in the Riverkeeper case. In this Sotomayor had a strong background, tablished precedents and are not case, she wrote for a unanimous panel including extensive experience as a tempted to turn back the clock on and held that under the Clean Water prosecutor, trial judge, and appellate landmark court decisions that protect Act, the EPA could not engage in a judge. She grew up in modest cir- individual constitutional rights. cost-benefit analysis. Allowing cost- cumstances, worked hard to attend two I gained great confidence in Judge benefit analysis would undermine con- of our Nation’s most prestigious uni- Sotomayor after listening to her an- gressional protections, when deter- versities, Princeton and Yale Law swers to questions I posed. I wished to mining what constitutes the ‘‘best School, and she excelled at the highest mention a few of the key cases decided technology available for minimizing levels in each institution. Judge by Judge Sotomayor that we discussed the adverse environmental impact.’’ Sotomayor’s lifelong work has been at the hearing. Judge Sotomayor has She concluded, instead, the test for recognized by both Democratic and Re- protected the civil rights of all Ameri- compliance should consider ‘‘what publican Presidents who nominated her cans, advanced equal opportunity, and technology can be reasonably borne by for Senate-confirmed judicial appoint- promoted racial justice. the industry and could engage in cost- ments, and for 17 years she has served In the Gant case, she protected the effectiveness analysis in determining as a distinguished jurist. rights of a young African-American the [best technology available].’’ Judge Sotomayor is an example of a student who was treated differently In addition to her impressive legal highly competent and experienced than his fellow White classmates. In background, Judge Sotomayor is on nominee. She has more Federal judicial the Boyton case, she looked at the the verge of becoming the first Latino experience than any Supreme Court facts presented and reversed and re- and only the third woman to serve on nominee in the last 100 years. She was manded the case because the facts did the Supreme Court. Her story of per- rated ‘‘well qualified’’ by the American present a plausible claim of disparate sonal success is an inspiration for Bar Association, which is the highest treatment in a housing application young Latinos, women, and for all rating given by the ABA. She has been process. Judge Sotomayor has also Americans. She is prepared and ready supported by the National Fraternal shown an understanding of privacy to serve our Nation on the Court, Order of Police, the NAACP, the U.S. rights. While we do not have cases to where I am confident she will continue Chamber of Commerce, the National review that she participated in, her re- to build upon the outstanding record Association of Women Legislators, the sponses to questions gave me great she has already achieved as a distin- Brennan Center for Justice, the Law- confidence that she will respect legal guished jurist. For all these reasons yers Committee for Civil Rights Under precedent while applying privacy pro- and many more, I will vote to confirm Law, and many more. tections to the challenges in the 21st Judge Sotomayor to be the next Asso- The nine Justices of the Supreme century. ciate Justice of the U.S. Supreme Court have a tremendous responsibility I have confidence that Judge Court. I urge my colleagues to join in of safeguarding the Framers’ intent Sotomayor understands the impor- support of her confirmation. and the fundamental values of our Con- tance of protecting the freedom of I ask unanimous consent to have stitution, while ensuring the protec- speech based on the decisions she printed in the RECORD the following tion of rights found in that very Con- reached in the Pappas case, where an letters of support: The Lawyers Com- stitution are applied and are relevant off-duty police officer used speech that mittee for Civil Rights Under Law, a to the issues of the day. It is my belief was repugnant, but her ruling showed joint letter with more than 25 dis- that the Constitution and Bill of an understanding of the importance of ability rights organizations in support Rights were created to be timeless doc- constitutional protections, even when of Judge Sotomayor’s confirmation; uments that stand together as the the speech is unpopular and hateful. and letters of support signed by more foundation for the rule of law in our I have confidence Judge Sotomayor than 80 civil rights and labor organiza- Nation. Were it not possible for the Su- will protect religious freedom based on tions in support of her nomination to preme Court to apply the basic tenets her decision in the Ford case, where be the next Supreme Court Justice. of the Constitution to changing times, she protected the rights of a Muslim There being no objection, the mate- moving beyond popular sentiment, our prison inmate. I was particularly im- rial was ordered to be printed in the Nation would never have made the pressed by Judge Sotomayor’s record RECORD, as follows: progress it has, improving society for on voting rights. In the Hayden case, CONFIRM JUDGE SONIA SOTOMAYOR TO THE the better. When the Constitution was she wrote in a dissent: U.S. SUPREME COURT written, African Americans were con- The duty of a judge is to follow the law, August 4, 2009 sidered property and counted only as not to question its plain terms. I do not be- DEAR SENATOR: On behalf of the under- three-fifths of a person. Non-Whites lieve that Congress wishes us to disregard signed organizations, we write to express our and women were not allowed to vote. the plain language of a statute or to invent support for the confirmation of Judge Sonia Individuals were restricted by race as exceptions in the statutes it has created. Sotomayor as associate justice of the Su- to whom they could marry. Her commitment on voting rights preme Court of the United States. In her 17 Decisions by the Supreme Court un- was reinforced at the hearing when she years of service to date as a federal trial and appellate judge, and throughout the course deniably have moved the country for- responded to a question I posed. She of her entire career, Judge Sotomayor has ward, continuing the progression of acknowledged, unequivocally, that the strongly distinguished herself through her constitutional protections. I believe right to vote is a fundamental right for outstanding intellectual credentials and her Judge Sotomayor’s record and back- all Americans. With current Justices deep respect for the rule of law, establishing

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00047 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.069 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8832 CONGRESSIONAL RECORD — SENATE August 5, 2009 herself beyond question as fully qualified credible evidence whatsoever of having an portance of timely special education services and ready to serve on the Supreme Court. ideological agenda, and certainly not a rac- to students with disabilities and their fami- Judge Sotomayor will be an impartial, ist one. We hope that you will strongly re- lies, She has been vigilant in reviewing ad- thoughtful, and highly respected addition to ject the efforts at character assassination ministrative decisions denying Social Secu- the Supreme Court. Her unique personal that have taken place since her nomination. rity benefits, especially where applicants are background is compelling, and will be both a In short, Judge Sotomayor has an incred- not represented by attorneys. In a notable tremendous asset to her on the Court and a ibly compelling personal story and a deep re- dissent, Judge Sotomayor argued forcefully historic inspiration to others. Her legal ca- spect for the Constitution and the rule of that the appointment of a guardian ad litem reer further demonstrates her qualifications law. Her long and rich experiences as a pros- violated the constitutional rights of a plain- to serve on our nation’s highest court. After ecutor, litigator, and judge match or even tiff who had received psychiatric treatments, graduating from Yale Law School, where she exceed those of any of the justices currently because she was not properly notified that served as an editor of the Yale Law Journal, sitting on the Court. Furthermore, she is she would have no control over her case once Judge Sotomayor spent five years as a crimi- fair-minded and ethical, and delivers the guardian was appointed. nal prosecutor in Manhattan. She then spent thoughtful rulings in cases that are based Given her record of balanced and thought- eight years as a corporate litigator with the upon their merits. For these reasons, the un- ful decisionmaking, we believe that Judge firm of Pavia & Harcourt, where she gained dersigned organizations strongly urge you to Sotomayor understands and appreciates expertise in a wide range of civil law areas vote to confirm Judge Sotomayor. If you Congress’s role in enacting important dis- such as contracts and intellectual property. have any questions, please feel free to con- ability rights protections, in enacting the In 1992, on the bipartisan recommendation of tact Leadership Conference on Civil Rights ADA and other disability rights laws, Con- her home-state senators, President George (LCCR) Counsel Rob Randhava at (202) 466– gress carefully considered the history of peo- H.W. Bush appointed her district judge for 6058, or LCCR Executive Vice President ple with disabilities in the United States, the Southern District of New York. In rec- Nancy Zirkin at (202) 263–2880. and acknowledged that many people with ognition of her outstanding record as a trial Sincerely, disabilities have been ostracized from their judge, President Bill Clinton elevated her to 80 signatures in support of Judge families and communities—that they have the U.S. Court of Appeals in 1998. Sotomayor’s confirmation. been prevented from going to school in their During her long tenure on the federal judi- neighborhood schools, from working at jobs ciary, Judge Sotomayor has participated in AMERICAN ASSOCIATION for which they were qualified, and from par- thousands of cases, and has authored ap- OF PEOPLE WITH DISABILITIES, ticipating fully in all aspects of community proximately 400 opinions at the appellate Washington, DC, July 7, 2009. life. The care that Judge Sotomayor has level. She has demonstrated a thorough un- Hon. PATRICK LEAHY, taken in her disability rights decisions indi- derstanding of a wide range of highly com- Chair, Judiciary Committee, cates a respect for Congress’s intent that plicated legal issues, and has a strong rep- U.S. Senate, Washington, DC. these laws have a broad remedial effect on utation for deciding cases based upon the Hon. JEFF SESSIONS, the relationships between individuals with careful application of the law to the facts of Ranking Member, Judiciary Committee, disabilities and covered entities such as em- cases. Her record and her inspiring personal U.S. Senate, Washington, DC. ployers, schools, state agencies, and public story indicate that she understands the judi- DEAR SENATORS LEAHY AND SESSIONS: On accommodations. For this reason, we expect ciary’s role in protecting the rights of all behalf of the undersigned national advocacy that she would accord Congress appropriate Americans, in ensuring equal justice, and in organizations representing the interests of deference in this area. respecting our constitutional values—all millions of people with disabilities, we write It is our belief that Judge Sotomayor will within the confines of the law. Moreover, her to express our strong support for the con- bring her fair, thorough approach to dis- well-reasoned and pragmatic approach to firmation of Judge Sonia Sotomayor as As- ability rights cases to her work on the Su- cases will allow litigants to feel, regardless sociate Justice of the Supreme Court of the preme Court, Judge Sotomayor understands of the outcome, that they were given a fair United States. We have reviewed hundreds of the language and purpose of the ADA and day in court. Judge Sotomayor’s decisions, including her other disability rights laws. Further, she un- Given her stellar record and her reputation disability rights decisions, from her career derstands that the decisions of judges, in- for fairness, Judge Sotomayor has garnered as a trial judge and appeals court judge, cluding Supreme Court justices, that inter- broad support across partisan and ideological along with her public statements in speeches pret these laws have consequences for people lines, earning glowing praise from colleagues and in interviews. Based on her sterling judi- with disabilities. Admirably, she has been in the judiciary, law enforcement commu- cial record, and on her valuable life experi- unafraid to take strong positions on issues nity, academia, and legal profession who ence, we strongly believe that Judge where she believes her reading of the law and know her best. Her Second Circuit colleague Sotomayor will adequately and fairly pro- facts is correct. Based on her record and her (and also her former law professor) Judge tect the rights of all Americans, including experience—including the fact that she has Guido Calabresi describes her as ‘‘a mar- people with disabilities. As such, we ask that publicly acknowledged her own insulin- velous, powerful, profoundly decent person. you vote to confirm her nomination. treated diabetes—we strongly urge you to Very popular on the court because she lis- Judge Sotomayor’s decisions under our confirm Judge Sotomayor for the Supreme tens, convinces and can be convinced—al- seminal civil rights law, the Americans with Court. ways by good legal argument. She’s changed Disabilities Act (ADA), have demonstrated a Thank you for your important work on my mind, not an insignificant number of good understanding of—and healthy respect Judge Sotomayor’s nomination. Should you times.’’ Judge Calabresi also discredited con- for—the rights of persons with disabilities. have questions about this letter, please feel cerns about Judge Sotomayor’s bench man- In important ADA cases concerning the defi- free to contact Andrew lmparato of the ner, explaining that he compared the sub- nition of ‘‘disability’’—an area of the law American Association of People with Dis- stance and tone of her questions with those subject over the years to many inappropri- abilities, Jim Ward of ADA Watch/National of his male colleagues and his own questions: ately narrowing judicial interpretations, so Coalition for Disability Rights or Jennifer ‘‘And I must say I found no difference at much so that last year Congress amended Mathis or Lewis Bossing of the Judge David all.’’ Judge Sotomayor’s colleague Judge the ADA to restore its broad reach—Judge L Bazelon Center for Mental Health Law. Roger Miner, speaking of her ideology, ar- Sotomayor has often combed through volu- Sincerely, gued that ‘‘I don’t think I’d go as far as to minous or technical testimony to determine Alexander Graham Bell Association for the classify her in one camp or another. I think whether the plaintiff was protected by the Deaf and Hard of Hearing. she just deserves the classification of out- law. Similarly, her understanding of the im- American Association for Affirmative Ac- standing judge.’’ And New York District At- portance of accommodations to help workers tion. torney Robert Morgenthau, her first em- with disabilities maintain employment is re- American Association on Health & Dis- ployer out of law school, hailed her for pos- flected in her thoughtful decisions in work- ability. sessing ‘‘the wisdom, intelligence, place accommodation cases. She has not American Association of People with Dis- collegiality, and good character needed to been afraid to dissent from a decision finding abilities. fill the position for which she has been nomi- that plaintiffs did not have disabilities. Nor American Diabetes Association. nated.’’ has she been afraid to overturn a jury ver- ADA Watch/National Coalition for Dis- The undersigned organizations urge you dict where incorrect instructions to the jury ability Rights. not to be swayed by the efforts of a small impeded a plaintiff’s ability to obtain relief Association of Programs for Rural Inde- number of ideological extremists to tarnish under the ADA. pendent Living. Judge Sotomayor’s outstanding reputation In her ADA decisions, and in other cases, Autism Society of America. Burton Blatt Institute. as a jurist. These efforts have included bla- Judge Sotomayor has demonstrated great Disability Rights Education and Defense tant mischaracterizations of a handful of her sensitivity to the needs of, and challenges Fund. rulings, as well as efforts to smear her as a facing, people with disabilities in this coun- Empowerment for the Arts International. racist based largely on one line in a speech try. For example, her analysis of special edu- Epilepsy Foundation. that critics have taken out of context from cation issues arising under the Individuals Higher Education Consortium for Special the rest of her remarks. The simple fact is with Disabilities Education Act (IDEA) re- Education. that after serving 17 years on the federal ju- flects—and language from her decisions ex- Judge David L. Bazelon Center for Mental diciary to date, she has not exhibited any plicitly states—a keen awareness of the im- Health Law.

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00048 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.031 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8833 MindFreedam International. tions and the demonstrated intent of Con- often we take it for granted. We can, in National Association of the Physically gress. large part, point to this Nation’s inde- Handicapped. REASONABLE ACCOMMODATION pendent judiciary as the reason for this National Association of Social Workers. National Association of State Head Injury Judge Sotomayor has participated in sev- emphasis on individual rights and lib- Administrators. eral cases reversing grants of summary judg- erties. Sure, they are enshrined in the National Center for Environmental Health ment for ADA defendants where there were Constitution, but the independent judi- Strategies, Inc. questions of fact regarding whether plaintiffs ciary, framed in the Constitution, National Center for Learning Disabilities. requested accommodations were reasonable. helps make all that possible. Justice Judge Sotomayor wrote a decision reversing National Council on Independent Living. Sandra Day O’Connor stated, for exam- National Disability Institute. a jury verdict against the plaintiff for failure National Disability Rights Network. to give a jury instruction indicating that, in ple: National Down Syndrome Society. determining whether reassignment to a va- The Framers of the Constitution were so National Spinal Cord Injury Association. cant position is a reasonable accommoda- clear in the Federalist Papers and elsewhere Teacher Education Division of the Council tion, an offer of an inferior position is not that they felt an independent judiciary was for Exceptional Children. reasonable when a comparable, or lateral, critical to the success of the nation. United Church of Christ Disabilities Min- position is available, (See Norville v. Staten istries Board of Directors. Is. Univ. Hosp., 196 F.3d 89 (2d Cir. 1999)). Our Founding Fathers were wise in setting up three separate branches of United Spinal Association. EDUCATION government, including a strong and Judge Sotomayor’s education opinions re- JUNE 30, 2009. flect an appropriate concern for parents’ pro- independent judiciary. The pinnacle of Hon. PATRICK LEAHY, CHAIRMAN, cedural rights, recognizing that, only by en- this system and its independence is the U.S. Senate Judiciary Committee, Washington, suring parents’ rights to hearings and U.S. Supreme Court, the highest Court DC. records can their children’s substantive edu- in the land. Hon. JEFF SESSIONS, cational rights be ensured, while also bal- Ranking Member, U.S. Senate Judiciary Com- Our Constitution embodies this inde- ancing states’ rights under the ‘‘cooperative mittee, Washington, DC. pendence in the separation of powers federalism’’ envisioned by the Individuals DEAR SENATORS LEAHY AND SESSIONS: As and checks and balances throughout with Disabilities Education Act (IDEA). (See professors of Disability Law, Disability Taylor v. Vermont Dep’t of Educ., 313 F.3d this great document. This is the case in Rights Law, and Special Education Law from 768 (2d Cir, 2002). She has also written opin- the structure of appointing our Su- across the country, we write to express our ions recognizing that the IDEA exhaustion preme Court Justices. The Constitu- support for the confirmation of Judge Sonia requirement is not so inflexible as to require tion provides of the President, for ex- Sotomayor for appointment to the United parents to engage in futile efforts. (See Mur- States Supreme Court. ample, that: phy v. Arlington Cent. Sch. Dist. Bd. of A review of Judge Sotomayor’s record on He shall nominate, and by and with the ad- Educ., 297 F.3d 195 (2d Cir. 2002)). disability law issues indicates that she has vice and consent of the Senate, shall . . . ap- an excellent understanding of the various CONSTITUTIONALITY OF FEDERAL CIVIL RIGHTS point judges of the Supreme Court. laws’ application to people with disabilities LEGISLATION in various contexts, including disability civil Judge Sotomayor has resisted judicial at- Let me repeat, the Constitution says: rights, employment, special education, So- tempts to artificially limit federal legisla- the President ‘‘shall nominate, and by cial Security, Medicaid, and guardianship. tive authority to articulate and enforce indi- and with the advice and consent of the Judge Sotomayor’s record shows that she vidual rights. While demonstrating respect Senate, shall appoint . . . judges of the takes a balanced, thoughtful approach to dis- for precedent, she has not interpreted the Supreme Court.’’ ability issues. Her analysis is consistently Constitution to prevent Congress from recog- The Senate’s role is of utmost impor- thorough, practical and respectful of indi- nizing individual and civil rights. (See Hay- tance in defending the independence of vidual rights. In close cases, she does not ap- den v. Pataki, 449 F.3d 305 (2d Cir. 2006) pear to follow any particular ideology or ac- (Sotomayor joining dissent from en bane de- the Supreme Court. The Senate’s ac- tivist agenda. cision); Connecticut v. Cahill, 217 F.3d 93 (2d tive advice and consent role in the con- DEFINITION OF DISABILITY Cir. 2000) (Sotomayor dissenting)). Her opin- firmation of Supreme Court Justices With the passage of the Americans with ions reflect a deference to Congress and to helps to ensure that nominees have the Disabilities Amendments Act of 2008, Con- the plain language of the Constitution. support of a broad political consensus. gress repudiated much of the way that the The Supreme Court is the guardian of our Of the many responsibilities the Con- Supreme Court has interpreted the Ameri- rights and freedoms. As such, we recognize stitution grants to the Senate, few are cans with Disabilities Act’s definition of dis- the importance of each nomination to the Court. Based on her record as a district court more critical than the Senate’s role in ability. Notwithstanding this flux In the law, the confirmation process for Supreme Judge Sotomayor’s opinions in this area judge and as a Judge on the Second Circuit stand out as being careful and reasoned, as Court of Appeals, we believe Judge Court Justice nominees. she has engaged in searching inquiries into Sotomayor has demonstrated appropriate re- I take—and I know each of us in the the nature of plaintiffs’ impairments to de- spect for the rule of law and the importance Senate does—this constitutional re- termine whether they meet the functional of individual rights, Therefore, we urge you sponsibility very seriously. Through- to confirm the nomination of Judge Sonia and legal definition of disability. (See Bart- out my time in the Senate, I have es- lett v. New York State Board of Law Exam- Sotomayor to the U.S. Supreme Court. 23 signatures in support of Judge tablished three criteria I use to exam- iners, 2001 WI 930792 (S.D.N.Y, 2001). ine nominees. These three criteria are: Judge Sotomayor has not been reluctant Sotomayor’s confirmation. to dissent in cases where the law was being Mr. CARDIN. I yield the floor. professional competency, personal in- applied overly narrowly, particularly on the The PRESIDING OFFICER (Mr. BEN- tegrity, and a view of important issues Issue of coverage based on an employer’s per- NET). The Senator from Montana. within the mainstream of contem- ceptions of disability (‘‘regarded as’’). (See Mr. BAUCUS. Mr. President, it is porary judicial thought. Those are the EEOC v. J.B. Hunt Transp., Inc., 321 F.3d 69, with great honor that I rise to express three. They are the criteria I use. I 78 (2d Cir. 2003) (Sotomayor dissenting)). my support for the nomination of have analyzed past Supreme Court After the passage of the ADA Amendments Judge Sonia Sotomayor to be an Asso- nominees using these three criteria, in- Act, Judge Sotomayor’s interpretation of cluding Chief Justice Roberts and Jus- the ‘‘regarded as’’ prong of disability now ciate Justice of the U.S. Supreme has been adopted as consistent with congres- Court. tice Alito. I will review my criteria. sional intent. In the Federalist Papers, explaining First, professional competency. The DISCRIMINATION our great Constitution and the role of Supreme Court must not be the testing Judge Sotomayor has authored decisions the judiciary, Alexander Hamilton ground for the development of a ju- holding, as a matter of first impression in quoted Montesquieu to say: rist’s basic values. We do not have time the Second Circuit, that ‘‘mixed motive’’ There is no liberty, if the power of judging for that. A Justice cannot learn on the analysis (allowing discrimination claims be not separated from the legislative and ex- job, nor should she require further where there are both discriminatory and ecutive power. training. The stakes are simply too non-discriminatory motives for a challenged We Americans should take a moment high. She must be professionally com- action) applies in ADA employment dis- petent on day one. crimination claims (See Parker v. Columbia to recognize that few other nations in Pictures Industries, 204 F.3d 326 (2d Cir, the world possess such a strong empha- Second, personal integrity. Nominees 2000)). Her opinion fully analyzed, and was sis on individual rights and liberties— to our Nation’s highest Court must be consistent with, precedents in other jurisdic- something we cherish greatly. Too of the highest caliber.

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00049 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.039 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8834 CONGRESSIONAL RECORD — SENATE August 5, 2009 And, third, the nominee should fall I strongly believe Judge Sotomayor I wish her the very best. within the mainstream of contem- has met the three criteria I view essen- The PRESIDING OFFICER. The Sen- porary judicial thought. The next Jus- tial to a Supreme Court Justice, and ator from Hawaii. tice must possess the requisite judicial this was even more evident during her Mr. AKAKA. Mr. President, I rise philosophy to be entrusted with the confirmation hearing. today in support of the confirmation of Court’s sweeping constitutional pow- Over the 4 days of hearings on the Judge Sonia Sotomayor to be an Asso- ers. nomination of Judge Sotomayor, what ciate Justice of the U.S. Supreme I believe that in the case of Judge did we see? We saw a composed, intel- Court. She has received support from Sonia Sotomayor, the answer to all ligent, and thoughtful judge, someone many parts of the community. The Ju- three questions is a resounding ‘‘yes.’’ committed to the law, and one with a diciary Committee has received many Judge Sotomayor is the embodiment rich life story and expansive judicial letters of support for Judge of the American dream—rising from a experience, whose perspective will en- Sotomayor’s nomination, from current Bronx public housing project to a place rich the judgments of the U.S. Supreme and former public officials, including among the judicial elite. She attended Court. the National Association of Latino Princeton, where she graduated among In closing, I congratulate our Presi- Elected and Appointed Officials, the the top of her class, and she was editor dent. I congratulate President Obama Congressional Asian Pacific American of the Law Journal at Yale Law on his historic nomination. I am con- Caucus, former President Bill Clinton, School. fident Judge Sotomayor will make an as well as former Judge Advocates Gen- Judge Sotomayor’s work history is outstanding Justice on the U.S. Su- eral. These letters of support continue diverse and rich with experience. Judge preme Court. to come. Sotomayor began her legal career as Mr. President, I suggest the absence Judge Sotomayor is well qualified, assistant district attorney for New of a quorum. with significant judicial experience. York County in 1979. She then worked The PRESIDING OFFICER. The After graduating from Yale Law as a litigator at Pavia & Harcourt, a clerk will call the roll. School, she worked in the New York small firm in Manhattan, where she The legislative clerk proceeded to County District Attorney’s Office pros- handled commercial cases. call the roll. ecuting criminal cases such as homi- Judge Sotomayor’s 17 years on the Mr. REID. Mr. President, I ask unan- cides and robberies, child pornography, bench, first as a district court judge, imous consent that the order for the police misconduct, and fraud cases. She then on the second circuit, have yield- quorum call be rescinded. then spent over 7 years in private prac- ed an enormous yet consistent body of The PRESIDING OFFICER. Without tice working with large corporations work. Her opinions show thorough and objection, it is so ordered. on international business issues. thoughtful analysis, an eye for detail, Mr. REID. Mr. President, for the ben- In 1992, Judge Sotomayor was ap- and, in her own words, fidelity to the efit of Members, we will have no more pointed by President George H.W. Bush law. votes tonight. I just completed a meet- to the Southern District Court of New I have no doubt that Judge ing with Senator MCCONNELL, and we Sotomayor has the professional com- York. Six years later she was ap- are trying to work through when we petency that the American people re- pointed by President Clinton to the are going to have a final vote on the quire of Supreme Court Justices. Second Circuit Court of Appeals where Judge Sotomayor’s life experiences Supreme Court nomination, what we she has served for more than 10 years. also convey the personal integrity es- are going to do on travel promotion, Throughout her career, Judge sential to a Supreme Court Justice. and what we are going to do for cash Sotomayor has displayed a keen intel- She has given back her time, energy, for clunkers. We are trying to work lect and an understanding of the world and expertise to the community that through that. We hope we will have around her. She knows the law and helped shape who she is. She has something worked out tonight, but knows firsthand how it affects Ameri- worked hard throughout her career, in- knowing how things work around here, cans’ daily lives. spiring students across the country to we probably will not be able to get in- If confirmed, Judge Sotomayor will pursue study of the law. formation to Members until tomorrow. be the first Hispanic Justice and the For her service, Judge Sotomayor But there will be no more votes to- third female Justice to sit on the Su- has received many honorary degrees— night. preme Court. Her confirmation would many—countless awards, and accolades I have indicated the number of things make the Supreme Court more reflec- from her colleagues, clerks, and the we have to complete before we leave tive of our great and diverse Nation. academic community. Judge here, and that is all dependent on the She brings a rich background and a Sotomayor has also made personal sac- amount of cooperation we get from the wealth of experience and understanding rifices. She recognizes the personal minority whether we finish tomorrow, of American life that will have an im- sacrifices she must make in order to Friday, or Saturday, or Sunday. There pact on the cases before the Court. As serve as a Justice on the Supreme is no reason we can’t put in a modestly other Justices have noted, the unique Court. long day tomorrow and complete ev- personal story of each Supreme Court My third criteria—that is, a nominee erything, but we will have to see. We Justice allows them to better under- who falls within the mainstream of will do our best to try to get notice to stand the parties before them and to contemporary judicial thought—is met, Members as quickly as we can. better apply the law to the facts at again, by reviewing Judge Sotomayor’s Mr. INOUYE. Mr. President. I sup- hand. She has a deep understanding of lengthy judicial record. Some of my port the nomination of Judge Sonia the real lives of Americans—how her colleagues want to paint her as a judi- Sotomayor to the Supreme Court. decisions can affect not only the par- cial activist with leftwing leanings. Some of my colleagues have criti- ties before her but society at large. In fact, in constitutional cases that cized Judge Sotomayor for her views. I In June, I had the pleasure to meet came before the second circuit, Judge welcome an independent thinker. with Judge Sotomayor. During our Sotomayor voted with the majority 98 Some have criticized her for being a meeting we talked about Hawaii, its percent of the time—hardly a leftwing ‘‘liberal’’ in certain cases. What is history, and its culture. We talked activist. In the rare cases where she wrong with being a liberal? Do all Su- about how being an island State forces held a government action unconstitu- preme Court Justices have to qualify us to work together to resolve chal- tional, the decision was so clear that it as being conservatives? lenges and how our diverse culture was unanimous. Judges appointed by I welcome the nomination of Judge helps us find unique solutions. Judge Republican Presidents have agreed Sotomayor to the Court because she, Sotomayor understands that. She with Judge Sotomayor 90 percent of unlike most members of the Supreme knows our diversity ultimately makes the time—hardly a leftwing activist. Court, has lived through the experi- America stronger. This is not the actions of an activist ences of many of our citizens. She Her commonsense approach to the judge. In fact, this is a judge who can knows what it is to be poor. She knows law gives Americans reason to believe be relied on to produce a decision that what it is to have grown up in public that she will be an unbiased and fair- most people can agree with. housing. minded Supreme Court Justice. In fact,

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00050 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.071 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8835 Judge Sotomayor’s record dem- Judge’s professional accomplishments, and and breadth of experience that will inform onstrates her realistic approach to de- her opinions and rulings that affect equal ac- her work on our nation’s highest court. In ciding cases and her fair treatment of cess to civic and economic opportunities. fact, she has a wider range of federal legal the parties before her. She has a long The Board also reviewed the Judge’s record experience than any Justice sitting on to- of service to the legal profession, the judici- day’s Court. record of judicial restraint and respect ary, and the public. CAPAC extends its endorsement with for our constitutional freedoms, estab- We believe that the confirmation of Judge pride. Members of our caucus look forward to lished precedent, and the other Sotomayor is particularly important, be- working with you to ensure a fair and branches of the government, including cause it will help enhance the diversity of smooth confirmation process. the lawmaking role of Congress. the nation’s highest court, where no Latino Sincerely, Last month we watched as she han- has yet served. In order for our judicial sys- MICHAEL M. HONDA, dled her confirmation hearing with tem to carry out justice effectively and in- Chair. poise and composure. She addressed the terpret our laws fairly, our judges must un- JULY 14, 2009. committee members’ questions with derstand how laws affect the daily realities of the life of our nation’s diverse residents. Hon. PATRICK J. LEAHY, thoughtfulness and respect. She dem- Latinos are the nation’s second largest and Chairman, U.S. Senate Judiciary Committee, onstrated that she is up to the chal- fastest growing population group, and Judge Washington, DC. lenge and the great responsibility of Sotomayor will bring a deep understanding DEAR MR. CHAIRMAN: I write respectfully serving on the Supreme Court. I am of the issues facing Latinos and all Ameri- to urge the Senate’s speedy confirmation of confident, based on her experience and cans to the Supreme Court. Thus, her service the Honorable Sonia Sotomayor as Associate background, that she will make an ex- as an Associate Justice will greatly enrich Justice of the Supreme Court of the United cellent addition to the U.S. Supreme the administration of justice in our nation. States. I had the privilege to name Judge Court. NALEO believes Judge Sotomayor will be an invaluable asset to our nation’s highest Sotomayor to a position in the Federal Judi- I urge my colleagues to focus on her court because she possesses exceptional judi- ciary. On that occasion, she was a trailblazer qualifications, her life experience, and cial expertise and a firm dedication to our as the first Latina nominated to a U.S. Cir- her judgment and join me in sup- laws and Constitution. The full Senate must cuit Court. As the first Hispanic nominee to porting Judge Sotomayor’s confirma- confirm the Judge’s nomination by the Au- the U.S. Supreme Court, Judge Sotomayor tion. gust Congressional recess in order for Judge once again breaks new ground. If confirmed, Mr. President, I ask unanimous con- Sotomayor to participate in September when Justice Sotomayor will be the second jurist sent that the letters I mentioned at the the Court confers, and to be seated on the in history nominated to three judgeships by beginning of my remarks be printed in first Monday in October, when the court pub- three different Presidents. I am very proud licly convenes. We urge the Senate Judiciary of our nation at this auspicious moment. the RECORD. Committee to help meet this schedule by ad- It is my hope that Judge Sotomayor will There being no objection, the mate- vancing Judge Sotomayor’s nomination to join the Supreme Court, where she can make rial was ordered to be printed in the the full Senate as expeditiously as possible. a unique contribution through her experi- RECORD, as follows: Thank you for attention to this matter. ence as a state prosecutor and a trial judge. NATIONAL ASSOCIATION OF LATINO Should you have any questions, please con- Her compelling life story, being raised by a ELECTED AND APPOINTED OFFICIALS, tact me. single mother of modest means who instilled Los Angeles, CA, July 10, 2009. Sincerely, in her the values of hard work and edu- Hon. PATRICK J. LEAHY, ARTURO VARGAS, cational achievement, is the true embodi- Chairman, Senate Committee on the Judiciary, Executive Director. ment of the American Dream. Washington, DC. I congratulate President Obama for select- Hon. JESS SESSIONS, CONGRESSIONAL ing an eminently qualified nominee and en- Ranking Member, Senate Committee on the Ju- ASIAN PACIFIC AMERICAN CAUCUS, courage the Senate to recognize Judge diciary, Washington, DC. Washington, DC, July 13, 2009. Sotomayor’s outstanding qualifications and DEAR SENATOR LEAHY AND SENATOR SES- Hon. PATRICK J. LEAHY, experiences, which make her worthy of the SIONS: On behalf of the National Association Chairman, Committee on the Judiciary, U.S. honored role of Associate Justice of the Su- of Latino Elected and Appointed Officials Senate, Washington, DC. preme Court of the United States. (NALEO), I am writing to express our strong Hon. JEFF SESSIONS, Sincerely, support for the swift confirmation of Judge Ranking Member, Committee on the Judiciary, BILL CLINTON. Sonia Sotomayor to serve as Association U.S. Senate, Washington, DC. DEAR CHAIRMAN LEAHY AND RANKING MEM- Justice of the U.S. Supreme Court. NALEO Hon. PATRICK J. LEAHY, is the leadership organization of the nation’s BER SESSIONS: On behalf of the Congressional Chairman, U.S. Senate Committee on the Judici- more than 6,000 Latino elected and appointed Asian Pacific American Caucus (CAPAC), I ary, Washington, DC. officials. am writing to inform you of CAPAC’s en- Hon. JEFFERSON B. SESSIONS, Judge Sotomayor is an exceptionally ac- dorsement of the nomination of Judge Sonia Ranking Member, U.S. Senate Committee on the complished jurist who has demonstrated a Sotomayor to be an Associate Justice of the Judiciary, Washington, DC. deep commitment to equal justice for all U.S. Supreme Court. Hon. LINDSEY GRAHAM, Americans. She has excelled as a prosecutor, CAPAC applauds President Obama’s deci- Member, U.S. Senate Committee on the Judici- a corporate litigator, a federal judge, and an sion to choose Judge Sonia Sotomayor as his ary, Washinton, DC. appellate judge on the Second Circuit Court Supreme Court nominee A brilliant legal DEAR CHAIRMAN LEAHY, RANKING MEMBER of Appeals. Judge Sotomayor has more expe- mind, Judge Sotomayor has already served SESSIONS, AND SENATOR GRAHAM: We, former rience in the federal judiciary than any our country with great distinction. Over the Judge Advocates General and a general in other person nominated to the United States course of her distinguished career, Judge the Judge Advocate General’s Corps, respect- Supreme Court in a hundred years. Sotomayor has been a fearless guardian of fully write to support the confirmation of In addition, during her distinguished ca- the rule of law and demonstrated integrity of Judge Sonia Sotomayor as an Associate Jus- reer, Judge Sotomayor has combined a pro- the highest class, earning her the respect of tice of the United States Supreme Court. found respect for the rule of law with careful the legal community. Judge Sotomayor is well-qualified for the and thoughtful analysis of the law’s impact Despite humble beginnings from the South Supreme Court and should be confirmed. She on the day-to-day realities of our diverse na- Bronx, Judge Sotomayor went on to become has earned a reputation for careful, nar- tion. Through her extensive public service the valedictorian of her high school, the top rowly-tailored decisions in seventeen years efforts, she has promoted equal opportunity undergraduate student in her class at as a federal judge, applying the law impar- in employment and housing, and expanded Princeton, and an editor of the Yale Law tially, and faithfully honoring precedent and access to the electoral process. Journal. Her legal career has been as daz- the rule of law. Earlier in her career, she im- NALEO’s Board reached the decision to zling as her life story, and she is unquestion- pressed her colleagues as a focused and hard- support Judge Sotomayor’s nomination after ably qualified to serve as a Supreme Court working prosecutor and corporate litigator. a thorough review of her qualifications con- Justice. She has distinguished herself in each role, ducted in accordance with the Board’s prin- She would bring to the Supreme Court her displaying rigorous thinking and careful at- ciples governing the assessment of federal experience in nearly every level of our judi- tention to the facts before her. Judge judiciary nominees. This assessment in- cial system as a prosecutor, litigator, trial Sotomayor would serve the Court, and the volved a comprehensive evaluation of the court and appellate judge—offering a depth nation, well.

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00051 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.074 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8836 CONGRESSIONAL RECORD — SENATE August 5, 2009 We urge your speedy confirmation of this Yorker, as a child of Spanish-speaking What this body of work shows, more qualified nominee. immigrants from Puerto Rico, and as a than anything else, is that Judge Sincerely, longtime judge in New York might Sotomayor is diligent and prudent in JAMES P. CULLEN, identify with Justice Cardozo. I am her approach to hearing and deciding Brigadier General, sure Judge Sotomayor would love to cases. She thoroughly weighs the facts USA (Ret.). DONALD J. GUTER, extend the parallel to Cardozo’s unani- and carefully adapts the principles ex- Rear Admiral, USN mous Senate confirmation vote. But pounded by previous courts to reach a (Ret.). Judge Sotomayor cited none of these just result in each new set of cir- JOHN D. HUTSON, reasons. Rather, she pointed to his par- cumstances. In fact, the reason many Rear Admiral, USN ticular approach to judging—the care- find it difficult to pin a label on her— (Ret.). ful, fact-intensive approach that was be it conservative or liberal—is be- Mr. AKAKA. Mr. President, I yield Cardozo’s hallmark. cause her decisions do not follow ideo- the floor, and I suggest the absence of Let me put that observation in con- logical lines. Rather, they emerge from a quorum. text. Cardozo served as a judge during close readings of previous cases and The PRESIDING OFFICER. The the industrializing early 20th century. careful thought about the implications clerk will call the roll. Because of the rapidly changing times of the particular facts. Clearly, the The legislative clerk proceeded to in which he lived, he was faced with a judge’s respect for Justice Cardozo call the roll. wide range of cases that raised new and isn’t just an off-the-cuff remark. Hers Mr. MERKLEY. Mr. President, I ask difficult issues. His opinions became is record a judicial record that Ben- unanimous consent that the order for recognized for drawing deeply on the jamin Cardozo would be proud of. the quorum call be rescinded. facts of individual cases and relied Just as Cardozo faced the challenge The PRESIDING OFFICER. Without heavily on the development of the law of interpreting the Constitution in a objection, it is so ordered. that came before him. He was inno- newly industrialized state, so, too, do Mr. MERKLEY. Mr. President, over vating and forward-looking but also we face the challenge of interpreting the past few weeks of meetings and deeply respectful of careful develop- the Constitution in a high-tech, glob- hearings, both the Senate and the ment of the law. He described his style ally interconnected world. The answers American people have witnessed the in- as one of steady, hard work. Justice to tomorrow’s constitutional questions telligence, the legal understanding, Cardozo and Judge Sotomayor share a will not be easy. But if we follow Judge and dedication to the law that makes love for steady, hard work—the steady, Sotomayor’s approach, our constitu- Judge Sonia Sotomayor well qualified careful development of law that comes tional interpretations will be built on to be our next Supreme Court Justice. from fact-intensive, careful judging. the wise interpretations of the past. We Today, I rise to support her nomina- These are approaches to law that will will, with this approach, have con- tion and share a few thoughts on why I serve the judge well as our next Su- fidence that our Supreme Court will think Judge Sotomayor should be con- preme Court Justice. stay true to the body of principles of firmed as the next U.S. Supreme Court Interpreting the Constitution is, of justice and freedom that are at the Justice. course, a challenge. Our Constitution is heart of our constitutional tradition. When I was in college I took a fresh- mostly written in broad, general direc- Let me summarize. Judge Sotomayor man seminar on the Bill of Rights. tives. For example, our first amend- has a stellar academic background. She Each week, our professor would give us ment says Congress shall pass no law brings diverse and valuable life experi- the facts of a Supreme Court case with- ‘‘abridging the freedom of speech.’’ Our ences. She has a distinguished record out the opinions and would ask us to fourth amendment ensures persons on the bench, and she will bring a care- shall be free in their homes from ‘‘un- draft our opinion of a situation. After fully measured judicial approach and reasonable searches and seizures.’’ The we had prepared our opinion, we would valuable insights to our Supreme fourteenth amendment declares that share them the next week, and then Court. no State shall ‘‘deny to any person and only then read the official major- Moreover, the value of the diversity within its jurisdiction the equal pro- ity and minority opinions of the Jus- that Sotomayor would bring to the tection of the laws.’’ tices. It was quite an education in the Court, as a woman, as an American of Those broad phrases do not provide Puerto Rican descent, cannot be over- Bill of Rights. easy answers to complicated cases. stated. We often talk about govern- Over the course of the semester, When is a search or seizure unreason- many of us came to identify with the ment by and for the people. That is a able? When does a practice or law cherished part of our tradition. We approach and viewpoints of one Justice abridge freedom of speech? When does a often talk about it in terms of the di- or another. It was very helpful in gain- practice or law abridge equal protec- versity of those who serve in the execu- ing insight into my own thinking and tion under the law? tive branch. We often talk about it that of our Supreme Court. So when I Our first Chief Justice, John Mar- being important in the diversity of met Judge Sotomayor, I posed a ques- shall, correctly noted it is the responsi- those who serve in the legislature, so tion to her: Which judge do you most bility of the judicial branch to provide we can bring valuable insights to bear. identify with? Her answer was Justice answers. How should a Supreme Court But government by and for the people Benjamin Cardozo. Justice go about providing these an- extends to the judicial branch as well. Let me tell my colleagues a little bit swers? We need to have the insights that flow about Benjamin Cardozo. A native of Judge Sotomayor’s background and from having judges with many dif- New York, he served on the New York record offer a model for how it should ferent life experiences. Court of Appeals, the highest State be done. First, she brings to her work I am confident Sonia Sotomayor will court in New York, from 1914 to 1932, extraordinary academic and experien- be a wise guardian of our Constitution. and then on the U.S. Supreme Court tial qualifications. She graduated at Therefore, I urge my colleagues to join from 1932 to 1938. Cardozo was de- the top of her class from Princeton me in casting their votes to confirm scended from Portuguese Jewish immi- University and from Yale Law School. Judge Sonia Sotomayor as an Asso- grants who long ago had fled the Span- She brings valuable life experience ciate Justice of the U.S. Supreme ish Inquisition, and Cardozo was the from growing up in public housing in Court. first Jewish person to serve on the New the Bronx, from serving as a prosecutor I yield the floor. York Court of Appeals. His careful, in New York City, and from working as Mr. FEINGOLD. Mr. President, I brilliant opinions on New York law an attorney in private practice. In 1992, want to say a few words about Judge earned him wide recognition as one of she was appointed to the Federal bench Sotomayor and about the hearing proc- our Nation’s most outstanding judges. by President George Herbert Walker ess we have just been through. When he was nominated to the Su- Bush. During the following 17 years, in- First, I commend Chairman LEAHY preme Court in 1932, he was confirmed cluding 11 on the U.S. Court of Appeals and his staff for a remarkably well-run by the Senate by a unanimous voice for the Second Circuit, she weighed in proceeding in the Judiciary Com- vote. I can see many reasons why on over 3,000 panel decisions and au- mittee. I think anyone who saw the 4 Judge Sotomayor, as a native New thored about 400 published opinions. days of hearings would agree that the

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00052 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.054 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8837 process was scrupulously fair. Every- time of war. She sat on a Second Cir- start with these hearings or this nomi- one got a chance to ask all the ques- cuit panel that struck down portions of nee, but perhaps it is inevitable. The tions they wanted to ask. They had the the National Security Letter statute chances of the Senate rejecting a nomi- time they needed for follow up ques- that was so dramatically expanded by nee who adopts this strategy are very tions, and for follow ups to those follow the Patriot Act. And when I asked her remote, based on the recent history of ups. No stone was left unturned, even if how September 11 changed her view of nominations. Nonetheless, I do not the answers the Judge gave weren’t al- the law, she gave the following answer: think it makes for meaningful advice ways what the questioner hoped to The Constitution is a timeless document. and consent. hear. It was intended to guide us through decades, So I cannot say that I learned every- What the public doesn’t see is the generation after generation, to everything thing about Judge Sonia Sotomayor work that is done behind the scenes to that would develop in our country. It has that I would have liked to learn. But get us to that point. Not just the setup protected us as a nation. It has inspired our what I did learn makes me believe that of the room and all the complex prep- survival. That doesn’t change. she will serve with distinction on the arations that go into the smooth run- Later, when we discussed the Court, and that I should vote in favor ning of the hearing itself, but also the Korematsu case, she said: of her confirmation. enormous effort to make all of the A judge should never rule from fear. A The PRESIDING OFFICER. The Sen- background information that came to judge should rule from law and the Constitu- ator from Connecticut is recognized. the Judiciary Committee available on- tion. Mr. LIEBERMAN. Mr. President, it is line virtually immediately—all of Those words give me hope that she a privilege to rise to speak on behalf of Judge Sotomayor’s speeches and arti- will have the courage to defend the lib- President Obama’s nomination of cles, over 100 letters and reports from erties of the American people from an Judge Sonia Sotomayor to be an Asso- people who know her, or organizations overreaching executive or legislative ciate Justice of the U.S. Supreme that wished to express their views on branch. Court. her nomination, as well as all of the At the same time, she appreciates This takes me back to a time, short- materials received from the PRLDEF the deference the judiciary must give ly after I was privileged to be elected organization in response to the Judici- to the legislature as it seeks to solve to the Senate, when President George ary Committee’s request. Chairman the problems facing the American peo- H.W. Bush nominated David Souter to LEAHY has set a new standard for ple. I don’t see in her record or in her be an Associate Justice of the Supreme transparency and public access to Su- public statements a burning desire to Court of the United States. David preme Court nomination proceedings, overturn precedent or to remake con- Souter had, by that time, been in law and I truly commend him for that, and stitutional law in the image of her own enforcement as an attorney general of I also thank him and his staff for the personal preference, and I certainly New Hampshire. As a former attorney tremendous work they have done over don’t see bias of any kind. I was also general, I felt an instant kinship with the last several weeks. impressed with her record and state- him. He had also been a trial judge in The scrutiny to be applied to a Presi- ments during the hearing on judicial New Hampshire, a member of the New dent’s nominee to the Supreme Court ethics. Judge Sotomayor seems to un- Hampshire Supreme Court and, ulti- is the highest of any nomination. The derstand that the extraordinary power mately, he sat on the Federal First Cir- Supreme Court, alone among our she will wield as a Justice must be ac- cuit Court of Appeals. He was proposed courts, has the power to revisit and re- companied by extraordinary care to to President Bush 41 by our former col- verse its precedents, and so I believe guard against any apparent conflict of league, Warren Rudman, a Senator that anyone who sits on that Court interest. from New Hampshire, a great Senator must not have a pre-set agenda to re- All that being said, I do want to ex- and a great friend. verse precedents with which he or she press a note of dissatisfaction. Not I remember when Senator Rudman disagrees, and must recognize and ap- with Chairman LEAHY, or with my col- brought David Souter around and in- preciate the awesome power and re- leagues on the Judiciary Committee, troduced him after President Bush sponsibility of the Court to do justice and certainly not with Judge nominated him. It has been my privi- when other branches of government in- Sotomayor, but with a nominations lege to have had a friendship with fringe on or ignore the freedoms and process that I think fails to educate David Souter in the company of former rights of our citizens. This is the same the Senate or the public about the attorneys general, particularly those standard I applied to the nominations views of potential Justices on the Su- who gather periodically to speak of of both Chief Justice Roberts and Jus- preme Court. I have said before that I matters past, present, and future. I tice Alito during the last administra- do not understand why the only person wanted to speak of Justice Souter be- tion. who cannot express an opinion on vir- cause, of course, it is his announce- What we saw over 4 days of hearings tually anything the Supreme Court has ment of retirement that opens the va- on the nomination of Judge Sotomayor done in recent years is the person from cancy that President Obama has asked was a thoughtful, intelligent, and care- whom the American public most needs us to fill with Judge Sonia Sotomayor. ful judge, a person committed to her to hear. It makes no sense to me that In the case of now-Justice Souter, I craft and to the law, someone whose re- the current Justices can hear future was privileged in one of my early votes markable life story and varied experi- cases notwithstanding the fact that we here to join 89 of my Senate colleagues ence will add diversity and perspective, know their views on a legal issue be- in voting to confirm Justice Souter. which the Court sorely needs. Not only cause they wrote or joined an opinion With his retirement this summer, after will Judge Sotomayor become the first in a previous case that raised a similar two decades on the Court, he has be- Latina Justice, and only the third issue, but nominees for the Court can come the first Justice to retire of the woman, to serve on the Court, but she refuse to tell us what they think about six Supreme Court Justices on whose will be the only Justice who has served that previous case under the theory nominations I have had the privilege as a trial court judge, and she will have that doing so would compromise their and responsibility of voting. more judicial experience at the outset independence or their ability to keep I wish to first thank and commend of her service on the Court than any of an open mind in a future case. Justice Souter for his decades of public her colleagues did. There is no doubt I remain unconvinced that the dodge service, generally, and, specifically, for she is highly qualified, and I think we that all nominees now use—‘‘I can’t an- his thoughtful, distinguished service to saw during those 4 days of hearings swer that question because the issue the highest Court of our land. I know that she has an admirable judicial tem- might come before me on the Court’’— Justice Souter is a very honorable, perament and demeanor that will serve is justified. Nomination hearings have straightforward man. He is—if I may her well on the Court. become little more than theater, where say so as a New Englander—a quin- Judge Sotomayor’s record and testi- Senators try to ask clever questions tessential New Englander. He carries mony satisfied me that she under- and nominees try to come up with with him all the great constitutional stands the important role of the Court cleverer ways to respond without an- traditions of the part of our country in protecting civil liberties, even in a swering. This problem certainly did not from which I am proud to hail. He

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00053 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.015 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8838 CONGRESSIONAL RECORD — SENATE August 5, 2009 brings with him some characteristics Judge Sotomayor’s 17-year record as tice Under Law,’’ carries an immense that are best associated with a New a Federal judge speaks volumes about amount of weight and responsibility. Englander. He is straightforward. He is her qualifications to serve on the As a Senator tasked with the monu- not one for flowery rhetoric. He is one Court, and that is why I feel she more mental responsibility of confirming a who is committed to integrity in his than passes the threshold for this life- Supreme Court nominee, it is with personal life, as well as his public life. time appointment. During 6 years as a these four words in mind that I care- He has a great New England sense of trial judge on the U.S. district court fully studied this Supreme Court nomi- humor—probably not often seen in his and 11 years as a judge on the court of nee. There is no denying that Judge decisions, but I bear personal testi- appeals, Sonia Sotomayor has shown Sotomayor is impressive. Her quali- mony here, though I am not under oath she possesses a superior intellect, a fications, diverse experience, and per- at the moment, to that great quality commendable judicial temperament, sonal disposition make her a worthy he has. and an admirable respect for the role of candidate for this nomination. The fact I know there are some who have be- established precedent in our legal sys- that this is a proud moment for our Na- come critics of Justice Souter, who tem. tion has not been lost on me. This year, have said he isn’t what they thought he It is usually and quite naturally true America has certainly filled the his- would be when he was nominated. But that those who know people best are tory books. On the tails of his historic when he was nominated, what he pre- those with whom they have worked election, President Obama has chosen sented himself as was a man of the law most closely. Those who have worked to nominate the Nation’s first Hispanic who believed in our Constitution, be- most closely with Judge Sotomayor woman to the Supreme Court. Presi- lieved in the values that underlie it, are consistent, even effusive, in their dent Obama and Judge Sotomayor have and one who would always do what he praise for her personal attributes, her made history, but the impact they will thought was right. He has done that in professional qualifications, and her have on future generations is so much his years on the U.S. Supreme Court. I fairness. Chief Judge Dennis Jacobs of greater. haven’t agreed with every opinion Jus- Although, as a child, Judge tice Souter has ever written, but this I the Second Circuit Court of Appeals, said: Sotomayor could do little more than know: Every time he sat to write an dream. She was born in the Bronx, opinion or to join an opinion, he did so Sonia Sotomayor is a well-loved colleague raised by a single mother after her fa- after the most careful consideration. on our court—everybody from every point of view knows that she is fair and decent in all ther passed away when she was 9 years He is an extraordinarily hard-working, her dealings. of age. Her mother instilled in her a disciplined individual and, ultimately, deep value for education and a strong he reached a judgment that he felt was Another colleague on the Second Cir- right, according to the requirements of cuit, Senior Judge Roger Miner, said: work ethic, which paid off with a full our Constitution. I salute this great I don’t think I’d go so far as to classify her scholarship to Princeton University. American, this quiet American, but in one camp or another. I think she just de- She graduated summa cum laude from this profoundly patriotic American, serves the classification of outstanding Princeton and went on to attend Yale judge. and wish him well in the years he has Law School, where she earned her juris ahead of him as he returns now, by his While the most significant facts doctorate. She is truly an inspiration own choice, to his beloved New Hamp- about Judge Sotomayor are her per- for people across our great country. shire. sonal qualifications and her judicial Judge Sotomayor’s humble upbring- The life tenure of Supreme Court record, I also note that women are ing is reminiscent of another recent ju- Justices—a lifetime appointment for underrepresented on the Supreme dicial nominee, also of Hispanic herit- those who choose not to step down—de- Court of the United States. I say that age, who rose above his meager means fines, in many ways, the importance of not just as a matter of numbers but as in New York to attend and graduate the Senate’s role in providing advice a matter of qualification. with honors from Ivy League schools. and consent to the President on Su- I thank the President for this his- And the similarities do not stop there. preme Court nominees. I have always toric nomination of the first American I am referring to the American success felt, from the time I first came in—and of Hispanic descent to the Supreme story of Miguel Estrada, an individual the first vote I cast was on a controver- Court. This nomination was clearly equally deserving of our respect. sial nomination for Secretary of De- made on the basis of merit, not eth- Miguel Estrada came to America as a fense. It was in 1989. I spent a lot of nicity or gender. I think it is con- Honduran immigrant at the age of 17. time looking back at the history of the sistent with her merit. But acknowl- With very little English in his vocabu- advice and consent clause. To make a edging her ethnicity, her selection rep- lary, he rose to the top of the legal pro- long story short, I felt it wasn’t for me resents another barrier that has been fession after graduating with honors to vote for a nominee of the President, broken in American life. When that from Columbia University and Harvard to advise and consent. I did not have to happens in American life, the doors Law School. He clerked for Supreme feel that nominee was the person I open wider for every other American. Court Justice Anthony Kennedy and would have chosen but just that that I will be proud to vote yes to confirm was a former Assistant Solicitor Gen- nominee was within the range of being Sonia Sotomayor, of New York, to be eral of the United States. Miguel acceptable and was prepared and quali- Associate Justice of the U.S. Supreme Estrada served in the administrations fied for that job. There is a slightly Court. of both President Bill Clinton and higher standard for Supreme Court I thank the Chair and yield the floor. President George W. Bush. nominees because they do serve life- The PRESIDING OFFICER (Mr. WAR- In 2001, President George W. Bush time appointments. NER). The Senator from Nevada. recognized his talent and nominated It is with that in mind that I ap- Mr. ENSIGN. Mr. President, I ask him to the U.S. Court of Appeals for proach this nomination of Sonia unanimous consent that the Repub- the DC Circuit. Unfortunately, par- Sotomayor. I have met with Judge lican time for the next hour be allo- tisan politics came into play, and Sotomayor and have reviewed her judi- cated as follows: Senator ENSIGN, 30 Estrada’s record was not judged purely cial record. I followed her confirmation minutes; Senator MURKOWSKI, 20 min- on its merits. He did not receive the hearing before the Judiciary Com- utes; and Senator SESSIONS, 10 min- fair consideration that has been given mittee and, based on all that, I con- utes. to Judge Sotomayor. He never even clude, without question, that she pos- The PRESIDING OFFICER. Without made it as far as a confirmation vote. sesses remarkable intellectual and objection, it is so ordered. Miguel Estrada’s nomination and ex- legal credentials, has a distinguished Mr. ENSIGN. Mr. President, I rise to pected ascension to the Supreme Court record of experience in the public and speak about Supreme Court nominee, was cut short by a Democrat fili- private sector, and a deep commitment Judge Sonia Sotomayor. buster—as a matter of fact, seven Dem- to our country and our Constitution. I The words ‘‘Equal Justice Under ocrat filibusters that helped create a will, therefore, vote affirmatively to Law’’ are engraved in the stone above new standard for judicial nominees and consent to her nomination to the Su- the entrance to the U.S. Supreme the Senate’s constitutional role of ‘‘ad- preme Court. Court. This simple phrase, ‘‘Equal Jus- vise and consent.’’ Had he been given

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00054 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.077 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8839 the fair consideration he deserved, the ment applies only to the Federal Gov- moral, or political views to influence Hispanic community would have an- ernment and not to the States. To me, the outcome of cases. I worry about her other great role model in our judicial the Maloney ruling is an indication prior dismissal of the goal of judicial system. that Judge Sotomayor does not view impartiality as an unattainable ‘‘aspi- As I have previously stated, I am im- the Second Amendment as protecting a ration.’’ And I disagree that embracing pressed by Judge Sotomayor. In our fundamental right. her biases is a good thing. meeting, I found her very personable This is further supported by a 2004 de- Judge Sotomayor’s views on inter- and easy to talk with. Unfortunately, cision in U.S. v. Sanchez-Villar in national law are also troubling. While our discussions during that meeting which she also joined a decision that the use or consideration of foreign and did little to alleviate the concerns I flatly denied gun possession as a funda- international law in judicial decision- had upon reviewing her record and her mental right. While that decision pre- making is not new and remains a sub- public statements, including her testi- dated Heller, the Maloney decision oc- ject of controversy, Judge Sotomayor mony before the Judiciary Committee. curred more than six months after the appears to embrace using international Judge Sotomayor’s record and testi- Heller decision, and yet Sotomayor standards or laws to decide U.S. con- mony have left me with more uncer- again dismissed the possibility that the stitutional questions. tainty and doubt instead of the assur- second amendment protects a ‘‘funda- I asked Judge Sotomayor about her ance that she has the ability to rule mental right.’’ Once again in the deci- thoughts on the use of foreign law. Her with a fair and impartial adherence to sion, no analysis was given as to why. answers on this worrisome issue only the rule of law. I fear that Judge Her conclusion was that, one, the Sec- confirm a contradictory position re- Sotomayor, when seated on the Su- ond Amendment does not apply to the flected in many of her public state- preme Court bench, will not be a zeal- States and, two, the Second Amend- ments and an apparent endorsement of ous advocate for ‘‘Equal Justice Under ment does not protect a fundamental using foreign law as a source of cre- Law.’’ Many of her responses to me and right. ative ideas. to my colleagues on the Judiciary Had Judge Sotomayor looked to the During the confirmation hearings, Committee were troubling, not nec- history of the Fourteenth Amendment, Judge Sotomayor was asked if she essarily because of substance, but more the Civil Rights Act, and the Freedman agreed that ‘‘there is no authority for a due to the lack of it. Bureau’s Act, she would have recog- Supreme Court justice to utilize for- I remain concerned that we just do nized—or at least she should have rec- eign law in terms of making decisions not know who we will be getting on the ognized—that they were enacted to en- based on the Constitution or statutes.’’ Supreme Court. The inconsistencies in sure that the constitutional rights of This was her response: Judge Sotomayor’s testimony, judicial freedmen were protected against State Unless the statute requires you or directs record, and writings make it impos- infringement. This is especially true as you to look at foreign law . . . the answer is sible to fully understand her commit- it relates to the Second Amendment no. Foreign law cannot be used as a holding ment to how she will interpret and up- and the practice by States and local- or a precedent or to bind or to influence the hold the Constitution. ities that were outlawing the owner- outcome of a legal decision interpreting the This especially concerns me because Constitution or American law that doesn’t ship of firearms by newly freed slaves. direct you to that law. a lifetime appointment to the Supreme Given this information, coupled with Court comes without the barriers of ad- Judge Sotomayor’s record, I believe it She went on to say: ditional judicial review that someone is reasonable to conclude that she has I will not use foreign law to interpret the has in a lower court. The restraints of a bias against firearms and our con- Constitution or American statutes. I will use American law, constitutional law to inter- precedent that she was under as a dis- stitutional right to ‘‘keep and bear pret those laws, except in the situations trict court and circuit court judge will arms.’’ Should we expect her to rule where American law directs a court. not apply. differently when the Supreme Court This seems fairly straightforward. Even if I was to solely consider her takes up the Maloney case or the Ninth But her answers to written questions judicial record, I cannot in good con- or Seventh Circuit cases that deal with are contradictory, saying: science dismiss her cursory treatment the question of whether the Second In limited circumstances, decisions of for- of cases dealing with serious and im- Amendment applies to the States? eign courts can be a source of ideas inform- portant constitutional questions. Some Judge Sotomayor appears to believe ing our understanding of our own constitu- of her decisions have run contrary to that the Second Amendment is not an tional rights. the Constitution, were decided in opin- individual, fundamental right. It is, in To the extent that the decisions of foreign ions lacking analysis, and are con- fact, a fundamental right granted to all courts contain ideas that are helpful to that sistent with liberal political thought. Americans and enshrined in our Con- task, American courts may wish to consider For example, there was her 2006 pri- stitution. The Second Amendment is those ideas. vate property decision that permitted the cornerstone of our Bill of Rights. If This was not the only time she of- the government to take property from it is chipped away or infringed upon in fered support for utilizing foreign law. one developer and give it to another. any way, our freedom and liberties will On April 28, 2009, Judge Sotomayor And we have heard a lot about her be compromised. It is my fear that gave a speech to the ACLU of Puerto 2008 Ricci decision, recently overturned Judge Sotomayor will threaten Second Rico entitled ‘‘How Federal Judges by the U.S. Supreme Court, which Amendment rights for all Americans. Look to International and Foreign Law would have effectively allowed employ- This was not the first time her bias Under Article VI of the U.S. Constitu- ers to engage in reverse discrimination, and propensity to rule with purpose- tion.’’ Article VI makes the Constitu- so long as their claims of their actions driven results impacted her judicial de- tion and subsequent laws the ‘‘supreme were motivated by a desire to avoid cision making. Unfortunately, Judge law of the land.’’ In her April speech, conflicts with favored minority groups. Sotomayor’s record and testimony pro- she gave a broad defense of the practice A majority of Justices found that vides more uncertainty and doubt than by some American judges of looking to Judge Sotomayor misapplied the law. a declaration to her ability to rule foreign and international law as a Then there was her 2009 second with a fair and impartial adherence to source of ‘‘good ideas’’ in deciding amendment decision in Maloney v. the rule of law. questions of American law. She stated Cuomo that would give States the Presidents, Senators, judges, and Su- that U.S. courts can use foreign law to power to ban firearms. The unsigned preme Court Justices alike take an ‘‘help us understand whether our un- decision, joined by Judge Sotomayor, oath to preserve, to protect, and to de- derstanding of our own constitutional held that New York’s state statute fend the Constitution. It is our most rights f[a]ll[s] into the mainstream of does not interfere with a fundamental solemn duty. Judges are expected to be human thinking.’’ right. The opinion also dismissed the tethered to the Constitution and im- Apparently, the sentiments Judge argument that a complete ban violates partially apply the law to the facts. Sotomayor expressed this past April the Second Amendment by citing Su- The American people overwhelmingly are not new. In 2007, she wrote a for- preme Court cases from the 19th cen- reject the notion that unelected judges ward to a book on international judges, tury holding that the Second Amend- should set policy or allow their social, titled ‘‘The International Judge,’’

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00055 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.078 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8840 CONGRESSIONAL RECORD — SENATE August 5, 2009 where she assumed there is value to tion and more inclined to embrace ju- Justices of the Supreme Court enjoy ‘‘learn[ing] from foreign law and the dicial activism. Throughout her hear- life tenure. They are not accountable international community when inter- ing, Judge Sotomayor insisted her judi- to the President who appointed them preting our Constitution.’’ cial philosophy was, ‘‘fidelity to the or to the Senators who voted to con- I believe, and Justices Roberts, rule of law,’’ and that judges are re- firm them. They are not directly ac- Scalia, and Thomas agree, it is illegit- quired to defer to the policy choices countable to the American people. Yet imate for judges to look to foreign made by Congress. Unfortunately, she it is undeniable today, as it has been sources for guidance in interpreting declined to explain how she would since the founding of our Republic, the Constitution and laws ratified and apply that principle in practical terms. that the Supreme Court is relied upon enacted by ‘‘We the People, of the When asked how her commitment to as the last line of defense against the United States.’’ Judge Sotomayor has the ‘‘rule of law’’ would guide her judg- loss of our liberties. also specifically criticized Justices ment on whether the Second Amend- It is critical that the American peo- Scalia and Thomas for their opposition ment protected a fundamental con- ple have the highest confidence in the to relying on foreign law to interpret stitutional right against encroach- Supreme Court and its objectivity. In a the Constitution. She has even sug- ments from States and local govern- Democratic society, the credibility of gested that we will lose our influence ments, Judge Sotomayor declined to any institution relies on the consent of globally if we are not open to foreign answer other than to vaguely commit the governed. Those who seek nomina- and international law. to look at the Supreme Court’s prior tion to the Supreme Court must be While Judge Sotomayor acknowl- decisions. And when asked whether she ever vigilant in their words and in edges that judges are prohibited from views the Constitution as a ‘‘living, their deeds that they do nothing to un- treating foreign statutes or foreign breathing, evolving document,’’ Judge dermine that credibility. court judgments as binding, she has Sotomayor professed that the Con- Mr. President, after lengthy, lengthy publicly embraced their use in formu- stitution ‘‘is immutable’’ and ‘‘has not introspection, I rise this evening to in- lating decisions. Judge Sotomayor at- changed except by amendment.’’ form my colleagues that I am unable to tempted to distinguish the ‘‘use’’ of Yet, once again, her own responses to support the nomination of Judge foreign law to decide American legal Senators’ questions adopt a strikingly Sotomayor to serve on the Supreme questions from the act of ‘‘consid- different tone. When asked to distin- Court. This is a difficult result for me ering’’ foreign law by ‘‘us[ing] the ideas guish between judicial decisions that because I like Judge Sotomayor on a of foreign courts in some of our deci- apply a broadly-written statute to spe- personal level. I visited with the judge sion-making.’’ cific circumstances based on a judge’s for nearly an hour when she came According to Sotomayor, any effort view of ‘‘common sense’’ and a legisla- through to meet with Senators. She is to ‘‘outlaw the use of foreign or inter- tive act that endorses and codifies a absolutely an engaging individual, and national law . . . would be asking court’s decisions, Judge Sotomayor ar- I left thoroughly impressed with her American judges to . . . close their gued that a court’s action—with pre- intellect and certainly with her re- minds to good ideas.’’ She further stat- cisely the same practical effect as the solve. She was open to my invitation to ed, ‘‘How can you ask a person to close action of the legislature—does not visit Alaska, and that invitation still their ears? Ideas have no boundaries. amount to ‘‘making law’’ solely be- stands. Ideas are what set our creative juices cause it is a judicial act. The nomination of Judge Sotomayor, If, as her written answers argue, flowing.’’ who would be the first woman of Puer- Judge Sotomayor believes judges can- I agree, good ideas are important. to Rican descent to serve on the Su- not make law solely because they are Aren’t we fortunate that our Constitu- preme Court, is indeed a historic one. judges, her repeated disavowals of judi- tion is full of them? And our Constitu- Many were disappointed that President cial law-making while sitting before tion will always be the supreme law of Bush did not nominate a woman to fill TV cameras are essentially meaning- our land. Justice Sandra Day O’Connor’s seat on less. Unfortunately, we have already expe- In conclusion, when thinking back on the Supreme Court. Justice O’Connor rienced the negative impact of so- the phrasing engraved in marble above herself underscored the importance of called good ideas from foreign law and the entrance to the U.S. Supreme placing women on the bench and in how some on the Supreme Court may Court, ‘‘Equal Justice Under Law,’’ other high governmental positions in be using them to erode our constitu- Judge Sotomayor’s record and testi- an interview with the National Law tionally protected rights. Let’s take a mony provide uncertainty and doubt Journal that was published on May 26, look at the controversial 2005 Supreme that she will rule with a fair and im- 2009. So I am pleased that President Court decision of Kelo v. New London. partial adherence to the rule of law. Obama has nominated a woman to suc- It appears the global ‘‘good idea’’ of Therefore, I respectfully oppose her ceed Justice Souter. ‘‘Sustainable Development’’ from a nomination because she has given no Judge Sotomayor’s education and ex- U.N. Earth Summit may have influ- assurances that the Second Amend- perience certainly qualify her for the enced the majority decision to widely ment is an individual, fundamental position for which she was nominated— expand the definition of the ‘‘Takings right; she has demonstrated a propen- experience as a prosecutor and in the Clause’’ and eminent domain from its sity to rule with purpose-driven re- private practice of law, 17 years service original purpose—‘‘public use’’ for sults; she has indicated a particular in- on the Federal trial and appellate bridges, roads, or traditional govern- terest in considering international bench, a gifted and inspiring law pro- ment uses. standards or laws to decide U.S. con- fessor. In Kelo, I believe the Court incor- stitutional questions; and her televised Judge Sotomayor’s rise from the rectly ruled against the private prop- testimony contradicted much of her South Bronx to Princeton and Yale erty owners, allowing the City of New public record and professed judicial Law School is truly an American suc- London, CT, to transfer the private philosophy. cess story. Her excellence in practice property from long-time homeowners Mr. President, I yield the floor. as a prosecutor and private practice at- to a private developer for what the city The PRESIDING OFFICER. The Sen- torney is also an American success considered a greater ‘‘public purpose,’’ ator from Alaska. story. Her rise through the ranks of the instead of public use to increase the Ms. MURKOWSKI. Mr. President, a Federal Court system is an American city’s tax base. decision as to whether to confirm a success story. And here in America, we Again, I believe this is a troubling in- President’s nominee to the Supreme celebrate success stories such as Judge terpretation of the Constitution, and Court is one of the most significant de- Sotomayor’s. the Kelo decision suggests the danger cisions any of us will make during our But as much as I like Judge of allowing international or foreign Senate careers. The precedents that Sotomayor and am impressed with the good ideas to impact interpretation of are established by the U.S. Supreme obstacles she has clearly overcome, U.S. constitutional questions. Court do not merely affect the liti- there are aspects of Judge Sotomayor’s I further fear that she may be less re- gants but the entire fabric of American record that make me uncomfortable. I strained by the text of the Constitu- society, often for centuries. have heard from about 1,400 Alaskans

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One’s diverse back- second amendment is incorporated into has rightly engaged their attention. So ground does not and should not dimin- the 14th amendment and applies with let’s begin with the speeches. ish the value of another’s experiences. equal vigor to the States. To the Ninth In the National Law Journal inter- All of this leads me to question Circuit panel this was not a question of view I referred to a moment ago, Jus- whether Judge Sotomayor will con- ideology or judicial activism. It was tice O’Connor reasserted her viewpoint sider the pleas of those with experi- the undeniable outcome of Heller’s rea- that ‘‘a wise old woman and a wise old ences different from her own with the soning. man, at the end of the day, can reach objectivity that is demanded of a Su- But if Judge Sotomayor and her col- the same conclusion.’’ I agree with preme Court Justice. My constituents leagues really believed that courts of that conclusion. But this is a viewpoint are also troubled by the speech in appeals must await additional guidance that Judge Sotomayor has challenged which Judge Sotomayor expresses her from the Supreme Court before deter- in one form or another on some eight notion that the appellate courts are mining whether the second amendment different occasions. where policy is made. Judge constrains State action they could During the confirmation hearings I Sotomayor has subsequently explained have stopped there. Instead, the was looking for a simple, straight- that the point she was trying to make Sotomayor panel went on to conclude forward statement that Judge is that the courts of appeal establish that the rights secured under the sec- Sotomayor had come to appreciate precedent and the district courts do ond amendment are not fundamental that perhaps her remarks were ill-con- not. But there is a difference between rights. It was not necessary to reach ceived; that she would not use those policy and precedent, and my constitu- any conclusion on this issue because words if she were delivering those ents don’t believe Judge Sotomayor the panel had already decided that the speeches today. During the confirma- would have used the words ‘‘make pol- second amendment doesn’t apply to the tion hearings Judge Sotomayor used icy’’ to mean ‘‘establish precedent.’’ States. So why did Judge Sotomayor’s many words to justify and to explain They believe that she really did mean panel go out of its way to make this her statements. She argued vigorously ‘‘make policy.’’ Alaskans get nervous point? that she was misunderstood. But I am when courts make policy decisions. I am also disappointed that Judge still not clear she understands the im- Particularly those policy decisions Sotomayor did not write a separate pact the plain meaning of her words that infringe upon our constitutional opinion in Maloney. On a question as had upon the American people or the rights, as Alaskans understand them. significant as whether the second impact they potentially could have on And no constitutional issue concerns amendment is a fundamental right, I the credibility of the Court. my constituents in Alaska more than would have expected that Judge Many of my constituents in the State the second amendment. They question Sotomayor would have written a of Alaska are not impressed with this whether Judge Sotomayor’s experi- thoughtful and scholarly opinion. In- talk. Alaskans champion diversity. In ences enable her to fully understand stead she signed on to an analysis of the Anchorage school district where why people in the West fear the creep the second amendment that is widely my children attended elementary and of government regulation on their sec- regarded as superficial. middle school, more than 90 different ond amendment right to bear arms. Unfortunately, this is not the first languages are spoken. About 20 percent Judge Sotomayor has dealt with sec- time that Judge Sotomayor failed to of Alaskans are of Alaska Native an- ond amendment issues on two occa- write a substantial opinion on a signifi- cestry. Yet we reject the notion that sions. Neither inspires confidence. cant constitutional issue. Some of my coming from a particular background Let me focus on the 2009 Maloney de- colleagues have discussed their con- makes you wiser than one who has a cision. Maloney presented the question cerns with Judge Sotomayor’s handling different background. Alaskans judge whether the second amendment pro- of the New Haven firefighters’ case. each person as an individual. tects citizens from State interference I would like to take a moment to dis- Alaskans respect those who respect with their right to keep and bear arms. cuss the Didden case which involves our lifestyle and our values—hunting It was heard by a three judge panel in property rights and constitutional lim- and fishing and sustaining one’s self the Second Circuit. Judge Sotomayor its on the scope of eminent domain. from the land, responsible development served on that panel. Maloney was one The reasoning of Didden is particu- of our natural resources, and a govern- of the first cases to construe the sec- larly perplexing. The panel on which ment that restrains itself from intrud- ond amendment following the Supreme Judge Sotomayor sat concluded that ing on the lawful choices of American Court’s landmark 2008 decision in Hell- Didden’s constitutional challenge to citizens. er. the taking of his property was time About 63 percent of our State is Judge Sotomayor’s panel held that barred. If a suit is time barred there is owned by the Federal Government. the second amendment did not protect no reason for judges to reach the mer- Alaska is constantly in Federal court citizens from state interference. It rea- its of the case. defending attacks to our ability to ac- soned that it was constrained by the Yet for reasons I cannot fathom, cess Alaska’s lands and develop our U.S. Supreme Court’s 1866 decision in Judge Sotomayor’s panel went on to do economy, and often these issues end up Presser v. Illinois. just that. They performed a superficial before the Supreme Court. Many Alas- But as the Supreme Court explained analysis of whether the taking of a kans were disappointed recently with in Heller, the Presser case said nothing piece of private property by a munici- the outcome of the Exxon Valdez puni- about the second amendment’s mean- pality for a drugstore is a constitu- tive damages case. This may explain ing or scope, beyond the fact that it tionally permissible public purpose. why so many Alaskans are so attuned does not prevent the prohibition of pri- The Supreme Court invited lower to the objectivity of those nominated vate paramilitary organizations. courts to scrutinize a claim of public to serve on our Supreme Court. Maloney had nothing to do with pri- purpose to determine whether it is We are initially suspicious of those vate paramilitary organizations. The pretextual. Judge Sotomayor’s panel who are educated at Ivy League schools sole question in Maloney was whether never analyzed this question. and spend their entire careers in the the State of New York could ban the They simply concluded that Didden’s Boston-Washington corridor. Alaskans possession of a particular kind of weap- constitutional rights were not violated. wonder whether those with this back- on. This analysis was dicta. Not necessary ground truly understand the slice of A three judge panel in the Ninth Cir- to the outcome of the case. But it is a the American experience that we live cuit, a circuit which is often regarded most troubling piece of dicta because it

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00057 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.079 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8842 CONGRESSIONAL RECORD — SENATE August 5, 2009 undermines the constitutional protec- of individual rights that they as Amer- is a critical thing we are dealing with tion for private property. It could be ican citizens would possess no matter here, the next appointment to the U.S. used to limit the rights of litigants in what the Federal Government or any- Supreme Court. other cases. one else wanted to do about it. So they In a year after the Heller case was My professional training is no dif- passed the right not to establish a reli- decided that the right to keep and bear ferent than that of the other lawyers in gion, free speech, free press, the right arms is a personal or individual right this body. In law school you spend 3 to jury trial and other matters of that and it cannot be abridged by the Fed- years reading appellate decisions day kind in the first 10 amendments, as eral Government, the case came before in and day out. Hundreds of appellate adopted. her as to whether the second amend- decisions—over a 3-year period. We are The second amendment was one of ment applied to States and cities. taught that the measure of a judge is those, of course. It says: What if other cities were to declare in the quality of her analysis. A well regulated militia being essential to that you couldn’t have a gun in the The strength of a judge’s reasoning is the security of a free State, the right of the city, or a State were to declare you as important, if not more important, people to keep and bear arms shall not be in- couldn’t have a firearm, or if a State than who wins and who loses. It is im- fringed. were to place massive restrictions on portant because that reasoning is part The right of the people to keep and the use of personal weapons? She took and parcel of the precedent that is used bear arms shall not be infringed. that case, the first major case after in deciding future cases. Over the years, laws have been passed Heller to deal with this issue. Anyone In three separate cases of significant that caused difficulties and that began who is familiar with the appellate constitutional import, Judge to overreach with respect to the second courts in America, as this judge would Sotomayor’s panel failed to provide the amendment right. The American peo- be, would know this was a big, big, big rigorous analysis we commonly expect ple have gotten their back up, as the case, a case of great importance com- of future Supreme Court Justices. That Senator from Alaska told us, Senator ing on the heels of the widely discussed troubles me deeply. MURKOWSKI. People in Alaska, people Heller decision. In it, she rendered an I appreciate that the decision of who in Alabama, people all over America exceedingly short opinion. In it, she to nominate to the Supreme Court be- are concerned about this. It is a con- found it was ‘‘settled law’’ that the sec- longs to the President. However, if ad- stitutional right. It has been there ond amendment does not apply to indi- vice and consent is to be meaningful since the founding of the Republic. vidual Americans in States or cities. the Senate cannot be a mere I think most scholars have believed The city or State could completely bar rubberstamp on the President’s deci- for some time that it is, in fact, an in- them from having any kind of gun. sion. dividual right, that the first clause re- In the Heller case, to be fair with her, My decision to oppose Judge garding the well-regulated militia did this is what the circumstances were. Sotomayor’s nomination is not based not undermine the final declaratory There was an old 1800s case that basi- upon partisanship, ideology or the rec- clause which said: cally held this way. It basically held ommendations of any outside interest The right of the people to keep and bear that the second amendment did not group. It is the product of reservations arms shall not be infringed. apply to the States. I think the judge I have about the positions that Judge But no Supreme Court case had ruled could rightly conclude that she may Sotomayor has taken in speeches on on that squarely until last year when have been bound by that case. How- multiple occasions over a period of the Supreme Court took up the Heller ever, in the Supreme Court decision, years. It is based on the brief and su- case, which was in the Federal city we they put a footnote in it and said: we perficial treatment she has given to are in today, DC. The Supreme Court are not deciding the question of wheth- important constitutional questions. in the Heller case said it was an indi- er the second amendment applies to Equally troubling is the fact that vidual right and it prohibited the city the States because we are deciding a about 1,400 Alaskans have arrived at of Washington, DC, from effectively case in the District of Columbia, and the same conclusion. barring any citizen in the District from the law in the District of Columbia is This is not the conclusion I would having a gun. not city law. The law in the District of have preferred to announce but it is It was an exceedingly broad ban on Columbia is U.S. Government law. one that is compelled by Judge guns. But I would note something that They put a footnote and indicated that Sotomayor’s record. ought to be remembered: It was a 5-to- the incorporation doctrine was out I yield the floor. 4 decision—four members of the Su- there, but that they would review that I suggest the absence of a quorum. preme Court did not agree. Some peo- in the future. The PRESIDING OFFICER. The ple do not agree. My first point is this: I don’t believe clerk will call the roll. One of our Democratic colleagues it would be appropriate to say it is set- The assistant legislative clerk pro- yesterday said of the result in Heller, tled law that the second amendment ceeded to call the roll. that it was ‘‘a newly minted and nar- does not apply to the States after the Mr. SESSIONS. Mr. President, I ask rowly enacted constitutional right.’’ Heller case. That troubled me that she unanimous consent the order for the That is cause for concern. The Con- said that. quorum call be rescinded. stitution, I don’t think, is newly mint- Judge Sotomayor made a decision in The PRESIDING OFFICER. Without ed. I don’t think the Court created a the Maloney case, the first major case objection, it is so ordered. right. I think the Court simply de- after Heller. It was only eight para- Mr. SESSIONS. Mr. President, we clared a right that was plainly in the graphs in a case that everyone knew had a number of Members discuss the Constitution. So this is part of our con- was of great importance. And only one second amendment issue that was dealt cern. paragraph dealt with the question of with by Judge Sotomayor in two dif- I would suggest that it is a fragile whether the second amendment would ferent cases. It is an important ques- right, however, based on the way some apply to the States. Those who have tion and I think her nomination raises of the courts have been ruling and supported Judge Sotomayor have cor- very serious concerns about it. I would based on how Judge Sotomayor ruled. rectly noted that the seventh circuit like to try as fairly as I can to analyze Somebody had raised the point sev- heard the same kind of case some the circumstances in her dealing with eral times that it is somehow not right months later and they agreed with the these issues and why I think it is a that the National Rifle Association Maloney case and Judge Sotomayor. problem that Senators rightly have ob- here, at the end, after the hearings, de- They spent, however, a number of jections to. clared that they think that Judge pages on it. They spent 21⁄2 pages on the The second amendment is in the Con- Sotomayor should not be confirmed. question of whether it was incor- stitution. It is the second of the first 10 Certainly they were reluctant to be en- porated against the States. But they amendments. It is part of the Bill of gaged in this debate. But for the rea- concluded that even with the footnote Rights. If you remember, the people sons I would note—and Senator MUR- in the Heller case, they concluded that were not so happy with the Constitu- KOWSKI and others have noted—I don’t the more clear authority was still this tion. They wanted to have a guarantee think they had much choice, because it old case that is out there in the 1800s.

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00058 Fmt 0637 Sfmt 0634 E:\CR\FM\A05AU6.033 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8843 They did not say, however, that it was doctrine has developed great strength had altered the plan for promotion. It settled law. and power over the last 100 years. Few was basically done because of their The ninth circuit took up the very people would want to go back. I think race. same case just a few months after most people would be awfully surprised The equal protection clause of the Judge Sotomayor’s Maloney decision. to learn that the second amendment Constitution says that all American In a 19-page opinion that discussed in would not be one of those applied to citizens are entitled to equal protec- great depth the important constitu- the States. It certainly, in my opinion, tion of the laws, regardless of race. tional issues, the panel said, when you is not settled law. That is what their complaint was, one read the Heller decision, when you con- This case was dealt with in a most of the complaints. I would note that sider the footnote of the Supreme cursory manner. It dealt with a matter this was not even an opinion. It was ba- Court’s opinion where they said they of huge national importance. It is the sically a line or two summarily dis- didn’t explicitly decide whether it ap- kind of case that legal scholars watch missing this. plied to the States, they found dif- closely. It was an exceedingly short Then one of the other judges on the ferently. They found the second amend- opinion, a few paragraphs. It showed court apparently found out this opin- ment does apply to the States and cit- little respect for the seriousness of the ion had been rendered in a case that ies, and the States and cities must issue. It didn’t discuss it in any depth. struck him, apparently, as a matter of comply with it, and they can’t ban all It incorrectly stated it was settled law real importance, a case that ought not guns. They found not only that it was that the second amendment would not to be disposed of by a summary order, not settled law. To the contrary, they apply to the States. These are the that the firefighters were at least enti- found that the footnote in the Supreme problems we have with it. tled to an opinion. And by the way, Court opinion ‘‘explicitly left open this Judge Sotomayor now seeks to be on they never got a trial. Basically it was question.’’ And because they found the the Supreme Court. And with regard to dismissed prior to trial on motions. So question was left open by the Supreme the 5-to-4 decision in Heller and to the after great debate within the circuit, a Court, they felt they were authorized question of whether she should recuse little bit of a dust-up within the cir- to consider the constitutional laws and herself, as asked by Senator KYL, she cuit, by a 7-to-6 margin, Judge questions that are important and indicated that if her case came up, she Sotomayor casting the decisive sev- render a decision that they thought would recuse herself. It could come be- enth vote, they decided not to rehear was the right constitutional decision. fore the Supreme Court. It is that im- the case and any precedent that may That is why they went forward in that portant. But if one of the other cases exist in the circuit. But at that point, fashion. raising exactly the same issue came up, I guess as part of the process of con- At the hearing, the judge was asked a she refused to say she would recuse frontation that arose there, the panel number of questions about this. I herself. Of course, if her case comes up, issued an opinion that adopted the didn’t find those questions answered it is a matter of ethics that she would lower court opinion, a procuring opin- very persuasive, frankly. In some in- have to recuse herself. I thought that ion. They didn’t write their own opin- stances, I found them confusing. There since having already clearly decided ion but basically adopted the lower was no retreat that I heard from this precisely the same issue the Supreme court’s opinion. It was from that decision, as a result untenable position. In answering ques- Court would have to deal with, she of by chance another judge heard about tions from Senator HATCH, the judge ought to have indicated to us that it, not through the normal processes said that: since she expressed her opinion on it, she wouldn’t sit on the case. But that but, according to Stuart Taylor’s arti- The Supreme Court didn’t consider [the cle, from seeing it on television, that second amendment] fundamental [in the did not happen. Heller case] so as to be incorporated against I will share likewise another concern the case got some attention. And the the state. . . . Well, it not only didn’t decide we have about the firefighters case and Supreme Court agreed to hear it and it, but I understood Justice Scalia to be rec- how that was handled in such a short reversed the case and rendered a judg- ognizing that the [C]ourt’s precedent held manner. The firefighters contended ment in favor of the firefighters. I that it was not fundamental. that they had studied hard. They had think that was not responsible. That In the course of her decision she also passed a promotion exam. They were was a huge case of major constitu- found a critical question, that the sec- on the road to being promoted. The tional import. It should have been written in detail. Any person, any ond amendment is not a fundamental city, because of political complaints judge should have done that, particu- question. The judge was just wrong on about the fact that certain groups did larly one who would be considered for that in a big, big case. It is the kind of not pass the test in a way that raised thing you shouldn’t make a mistake the Supreme Court. concerns, decided they would give up So I will say those two opinions to on. In the majority’s footnote on this and not have the test and wipe out the issue, the Court expressly reserved the me are troubling in that I think they test and not follow through with the were wrong, No. 1. And No. 2, they were question of whether the second amend- test. The firefighters felt they had done ment applies to the States. The foot- exceedingly short, too short, when you everything possible, and they chal- consider the seriousness of those note said this: lenged that. Indeed, later the Supreme With respect to Cruikshank’s issues. Court held that no evidence was ever I yield the floor. one of the old cases presented that the test was not a fair Mr. ENZI. Mr. President, I rise today —continuing validity on incorporation, a and good test. Indeed, they had taken to discuss the nomination of Judge question not presented in this case . . . great care to get good people to help Sonia Sotomayor to serve as an Asso- So they explicitly said that they write the test in a way that would be ciate Justice of the U.S. Supreme didn’t were addressing this issue. But neutral and fair to all groups of people Court. Judge Sotomayor has a long ca- it is pretty clear that the doctrine that and would not have any kind of unfair reer as a jurist with many cases for allows the Bill of Rights, the first 10 advantage. Senators to review and determine how amendments, to apply to the States. When that case came before the she may address cases brought before That doctrine has developed dramati- judge, I was very disappointed that she the Supreme Court. Judge Sotomayor cally in the 20th century, over the last and her panel treated it as a summary is clearly an accomplished attorney 100 years. Virtually every one of the 10 order. A summary order is reserved for and intelligent person who overcame amendments has been incorporated cases that present no real legal ques- many obstacles and came from a hum- against the States. But the Second tion. Summary orders are not even cir- ble beginning to rise to this nomina- Amendment has not yet been applied culated among the other judges in the tion. However, in that long record I to the States. To me, that is an odd circuit. Here, it was a summary order have found a tendency to at times thing in light of the doctrine of the in- that did not even adopt the opinion of place more emphasis on personal expe- corporating of the first 10 amendments the lower courts that had ruled in this rience than the most fundamental as protections for individual Americans fashion. It just summarily dismissed parts of our Constitution. against both the Federal Government the firefighters’ claim and rendered I must oppose Judge Sotomayor’s and State and local governments. That judgment in favor of the city which nomination.

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00059 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.082 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8844 CONGRESSIONAL RECORD — SENATE August 5, 2009 I am concerned about Judge tainly troublesome. These statements mother was a nurse, her dad was a fac- Sotomayor’s past rulings and state- have been vetted in the Judiciary Com- tory worker, and she, unfortunately, ments during the Senate Judiciary mittee and certainly through the lost him at a very young age. I think Committee hearings about the second media. The statements warrant further she was just 9 years old when her fa- amendment as a fundamental right. discussion, however. As public figures, ther died—a very difficult cir- The Supreme Court’s ruling in 2008 in I, and the rest of my colleagues, may cumstance for anyone to overcome, es- the Heller case confirmed that the sec- be faced with situations where a com- pecially a young girl. ond amendment’s right to keep and ment can be taken out of context. A When we look at her record as a stu- bear arms includes the right of Amer- comment that is repeatedly used in dent, it is also a great American story ican citizens to have weapons for per- prepared remarks, however, should be of academic excellence, and I believe sonal self-defense. The Supreme Court interpreted as showing the true that is an understatement. Her record has not yet reviewed an incorporation thoughts and beliefs of the speaker. as a student through high school and case involving the second amendment, I believe the United States is a great then going on to Princeton and grad- but its second amendment opinion last nation because of the foundation of our uating with honors and going to Yale year noted that a due process analysis government, one element of which is Law School and serving on the Law Re- is now required. Earlier this year, when an independent judicial branch where view and being such a leader and a stu- Judge Sotomayor and the Second Cir- we believe that justice is blind. This is dent in both college and law school— cuit Court of Appeals ruled on Maloney a critical element of our system and a not only being a leader but also achiev- v. Cuomo determining that the second part of the judicial oath. I can agree ing academic excellence—is a record we amendment is not a fundamental right, that our personal backgrounds lead us would hope every member of the U.S. they relied on rulings from the 1800s to look at situations differently, but I Supreme Court could bring to their rather than following the 2008 Supreme cannot agree that judges should allow nomination debate. I was reflecting the last couple of Court ruling. their backgrounds to determine a case. days about my remarks tonight, and I The second amendment of our Con- Judicial decisions must be based on remembered that when our President, stitution guarantees the fundamental facts. When the facts or the Constitu- President Obama, was campaigning, I right of an individual to keep and bear tion comes into conflict with Judge had the chance to introduce him a arms. This is clear to me and a clear Sotomayor’s feelings and past experi- number of times. One of the times I in- legal precedent set by the Supreme ences, I am not confident which side troduced him, I was trying to convey Court. she will ultimately take. the reality of what he had overcome, As a father and grandfather, who I voted against Judge Sotomayor’s and it is very difficult to put that in a strongly believes in the rights of the nomination in 1998 to the Second Cir- few words. But I said at the time, in unborn, I am also troubled by Judge cuit Court of Appeals. At that time, I one particular place in northeastern Sotomayor’s past affiliation and lead- shared the concern of many of my col- Pennsylvania, that then-Senator ership of an organization, the Puerto leagues about Judge Sotomayor’s posi- Obama did not have a path cleared for Rican Defense and Education Fund, tions and her view of the role of the Ju- him, that he had to overcome barriers which has taken positions on abortion diciary. While I hold Judge Sotomayor that I find unsettling. Judge and obstacles in his life growing up, as in the highest respect, I believe my a public official, and all the way to the Sotomayor’s case record does not in- concerns then are borne out by her clude direct rulings on abortion issues, Presidency. record now. I have no reason to believe The same can be said of Judge so we must look at her history with anything will change in the future. Sotomayor. She had not, in her life— this organization. The fund, while I understand that Judge Sotomayor and has not to this day—ever had a Judge Sotomayor served in a leader- has support from many of my col- path cleared for her. She has had to ship capacity, filed briefs with the Su- leagues, and I hope they will listen to work and struggle and achieve to get preme Court not only supporting abor- the concerns I and others are raising. I where she is today, to the point of tion rights but in support of Federal hope they will take the time to fully being on the verge of being confirmed funds for abortion services. I could not consider the impact of Judge to serve on the Supreme Court. disagree more with these positions, and Sotomayor’s positions on future deci- So I think it is very important to I cannot help but wonder how Judge sions of the Supreme Court as the point out her life story, her remarkable Sotomayor would use her experiences Court’s decisions will affect our entire life story, her achievements, but also with the fund to rule on a possible case Nation. to speak, as we must, and as we should, before the Supreme Court. Unfortu- The PRESIDING OFFICER. The Sen- of her judicial expedience. nately, she would not provide a satis- ator from Pennsylvania. We hear all kinds of comparisons, factory answer or position when my Mr. CASEY. Mr. President, I rise to- when someone is nominated to the Su- colleague from Oklahoma, Senator night, as so many have, in the last sev- preme Court, about how many years COBURN, asked her direct questions eral days, especially to speak about the they have served as a judge, how many during the Judiciary Committee proc- nomination of Judge Sonia Sotomayor years they have served as a lawyer or ess. to be on the U.S. Supreme Court. as an advocate or as a public official— The issue of international law is an- As we all know, she is a distinguished whatever their background is. But it other area of concern. Judge Federal jurist who has been nominated just so happens this particular nomi- Sotomayor has stated that ideas have to serve as an Associate Justice on the nee, Judge Sotomayor, has more judi- no boundaries, but we must remember U.S. Supreme Court—a critically im- cial experience, I am told, than anyone that nations do have boundaries as well portant decision that the Senate is currently sitting on the U.S. Supreme as laws that govern actions within charged with making to advise and Court—all distinguished in their own those boundaries. The U.S. Constitu- consent on such nominations. way. But if you add up the years, I tion is the highest law of our land and Sonia Sotomayor’s life story is an guess it is 17—first on the district the basis of our Nation’s sovereignty. authentically American story. It is a court, the trial court in New York, for It may be good and well for academics story with which so many people in the Southern District of New York— to discuss international laws, or even this capital and across the country can nominated and confirmed by the Sen- domestic laws of other countries, as identify. It is a story of hard work and ate—and the same when she was con- they compare to the United States, but sacrifice. It is a story of struggle and firmed and served as a judge on the when making a ruling, a member of the triumph, overcoming barriers in her U.S. Court of Appeals for the Second U.S. judicial branch must rely on the life that, candidly, many in this Cham- Circuit at the appellate level. In both laws of this Nation. ber have not had to overcome. of those appointments, she gained Finally, I would like to address the It is a story, like so many authen- enormous experience on the very mat- issue of judicial impartiality. Judge tically and compelling American sto- ters that will come before the U.S. Su- Sotomayor’s statements about her ries, that starts with her family and, in preme Court. ability to judge cases better than oth- particular, her parents, not people of First, she was on the district court ers based on her background are cer- tremendous means or wealth. Her where you have litigants coming before

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I would judge, even lawyers, but especially hearing—sometimes a criminal matter hope we nominate people to the Su- someone who becomes a U.S. Supreme that involves someone’s liberty, in- preme Court who have a broad life ex- Court Justice; that they would have volves law enforcement issues, and all perience, who have not just been in one that philosophy in every case, but also the complexities of our human condi- area of a profession, but also have had the reality that precept entails, that tion in the context of a criminal case. challenges in their lives they have had they would approach every case, every Also coming before that court are very to overcome because the people who litigant, every party with the same ap- complex civil matters, and I know the come before the Supreme Court may be proach, dispensing equal justice under record is replete with references to her a little bit distant, but often arrive the law—not equal justice under my rulings in various cases involving civil, there after months or years or longer law or equal justice under a philosophy criminal, and other matters. of struggle. of, in this case, Judge Sotomayor as a Then she went to the appeals court, I think Judge Sotomayor has a life Supreme Court Justice, not her defini- working in a different court, with a dif- story that indicates she not only un- tion of what the law is, but what the ferent set of issues and, candidly, a dif- derstands struggle and understands law is, in fact, that she is required to ferent procedure, where someone is ap- how difficult life can be, but also has apply. pealing to the Federal appeals court, in an appreciation for the complexities of That equal justice under law is not this case, in the U.S. Court of Appeals life as well. She has been described, as just something inscribed above that for the Second Circuit—all the com- a judge and as a prosecutor, as both building. I believe, based upon her plexities that involves, where you are tough and fair—tough and fair. That is record, based upon her experience, and not taking testimony as you do in a a good description that you would based upon her character, she believes trial, not making determinations of want, when you are evaluating the role that and will be governed by that as a fact, you are deciding the law, what and the record of a Supreme Court Jus- member of the U.S. Supreme Court. the law should be, how to apply the law tice—someone who asks difficult ques- I conclude with this thought. When to the facts in the record, which is al- tions and probing questions as a mem- President Lincoln was speaking at Get- ready established. ber of the Court, but also someone who tysburg, PA—a place we all learned Both are very different judicial re- is fair, who does not seek to gain an ad- about as children and learned about sponsibilities, but both are very impor- vantage over a lawyer in the course of the Gettysburg Address and the mean- tant to serve on the ultimate appellate an argument but is both tough and fair. ing of it and the enduring value of that court, the top court in the land, that I believe integrity is a central con- speech—in one of the lines Lincoln being the Supreme Court. sideration that Senators should weigh used in that speech, he was talking So she has had broad and unprece- when we are deciding who serves on the about the Nation being tested at a time dented experience as a Federal judge Supreme Court after a President nomi- of war, and, unfortunately, at that for 17 years. That is very important in nates. We want someone with broad life time, a time of civil war, the worst of this debate. experiences. We want someone with ex- all wars. He was posing the question She also served as a prosecutor deal- perience in the law and often as a about this Nation that had been con- ing with all of the complexities and all judge. But we also want someone who ceived not too long before he gave that of the difficulties that any prosecutor has character. speech. He said that one of the ques- encounters, dealing with victims and I got a sense of that when I met with tions he posed was whether a nation so the impact of a crime on a victim and her. I also got a better sense by reading conceived can ‘‘long endure,’’ whether his or her family, dealing with the im- the long list, which I will not read to- our Nation could long endure, that we pact of crime on a community and in a night, of all the organizations that were being tested at a time of war. jurisdiction, dealing with judges and have endorsed her. They did not just I believe our Nation has been tested witnesses and law enforcement with endorse a set of cases. They did not at other times as well, not only in whom often you work so closely—the just endorse a resume. They endorse something as grave as a war, but we prosecutor—to develop your case, to and give their support to a human are tested in other ways as well. We marshal the evidence that a prosecutor being, a person who has had tremen- were tested in the Great Depression, has to put before a judge and jury. dous experience. And part of that, of whether we could endure the misery That experience is particularly rel- course, is integrity. and the difficulty, the joblessness of evant because a number of the cases I think we saw both her integrity and that, and all of the problems the De- the Supreme Court will hear—and they her temperament, which is another pression brought to America. We have do not hear every case; they take a very serious consideration. But we saw been tested in other wars. We were number of cases per year—some of both of them tested in the course of her tested in the battle for civil rights. We those cases will involve the rights of hearings, where she was asked a lot of have been tested as a nation very one party versus the other, will involve tough questions by members of the often—maybe not every day, maybe the rights of a criminal defendant Senate Judiciary Committee on both not every week, but at some period of versus the State. There are very com- sides of the aisle, Democratic Senators time in our lifetimes, we can see how plex matters that a Supreme Court and Republican Senators—hour after our Nation was tested. In some ways, Justice has to decide. hour after hour, day after day, under we are tested when debates occur in So whether you look at her experi- very difficult circumstances, on live the Senate. We are tested in terms of ence as a prosecutor, as a Federal dis- television, with all of the pressure that appointments that a President makes. trict court judge, a trial judge, or her every word, every response is weighed In this case, President Obama has experience on the appellate court— and scrutinized and criticized often and nominated someone to the U.S. Su- hearing appeals at the Federal level— examined. I think both her integrity preme Court who I believe will allow us all are very relevant to and I think pre- and her temperament were on display, to be able to say that as long as we are pare her well for her service on the and, in my judgement, she passed both nominating people with the experience, U.S. Supreme Court. of those tests in considerations we the character, and the integrity of Two more sets of experiences—one as have to weigh, that she passed them so Judge Sonia Sotomayor, this Nation a lawyer. I think it helps when you easily and so effectively. will long endure. I have no doubt about have been an advocate, a lawyer, to I would make two more points. In- that. I say that with as much con- have that as part of your experience scribed over the building that houses fidence as anyone could because her serving on the Supreme Court, where the courtroom where the U.S. Supreme record demonstrates that. Her experi- you have had to take on a battle for a Court meets—that historic room where ence demonstrates that if we have peo- client, to be their advocate, sometimes so many great cases have been de- ple such as Judge Sotomayor in the in very complicated matters, some- cided—inscribed over the building, U.S. Supreme Court, this Nation will times matters that will affect their above it, is the phrase we all know not only long endure, it will indeed lives in ways that will alter the course well: ‘‘Equal Justice Under Law.’’ thrive under that kind of judicial ex- their life is taking when they have a ‘‘Equal Justice Under Law.’’ That is cellence and that kind of experience matter before a court. what we expect certainly of every she will bring to the bench. So I have

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00061 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.088 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8846 CONGRESSIONAL RECORD — SENATE August 5, 2009 no hesitation at all in saying that I The PRESIDING OFFICER. The Sen- standing rule that the ADEA must be will vote for her confirmation to be an ator from Minnesota. interpreted the same as title VII of the Associate Justice of the Supreme Mr. FRANKEN. Mr. President, before Civil Rights Act which protects women Court. We can be proud of her record I discuss the nomination of Judge and minorities against discrimination and her experience but also her re- Sotomayor, I wish to take a moment to in the workplace. Because of the Gross markable and authentically American thank all of my colleagues here in the case, Minnesota’s older workers have story. Senate for their very warm welcome fewer rights in the workplace precisely Before I conclude my remarks, I ask and hospitality. I joined this body a lit- when they need them the most. unanimous consent to have printed in tle less than a month ago, but I have This was the same Court that 2 years the RECORD a letter of endorsement for been humbled by this institution, by ago barred a title VII suit by Lilly Judge Sotomayor that the Judiciary the work that goes on here, and, most Ledbetter, a woman who was paid less Committee received on July 15 from importantly, by my colleagues. It is an the National Hispanic Christian Lead- honor to represent the people of Min- than her male colleagues for the same ership Conference, serving approxi- nesota, and it is a special privilege to work for two decades. Minnesota mately 16 million Hispanic American do so here in the Senate. women are paid 74 cents for every dol- born-again Christians and 25,434 mem- One of my first responsibilities on lar earned by men. Until Congress fixed ber churches across the country. joining the Senate was to participate this ruling last year through the Lilly There being no objection, the mate- in the nomination hearings for Judge Ledbetter Fair Pay Act, this was yet rial was ordered to be printed in the Sotomayor. I said at the start of the another ruling that limited Minneso- RECORD, as follows: hearings that I wanted to be a voice for tans’ rights in the workplace. Hon. PATRICK J. LEAHY, the overwhelming majority of Ameri- This Supreme Court has put Min- Chairman, Committee on the Judiciary, U.S. cans who aren’t lawyers. The actions of nesota’s small business owners in a Senate, Washington, DC. the Supreme Court directly affect the similar position. Like entrepreneurs Hon. JEFF SESSIONS, everyday lives of all Americans. Whom around the country, Minnesota busi- Committee on the Judiciary, U.S. Senate, Wash- we choose to place on the Supreme ness owners are struggling. Business ington, DC. DEAR CHAIRMAN LEAHY AND RANKING MEM- Court affects every one of us. That is bankruptcies in our State increased 40 BER SESSIONS: what I want to do this evening. I want percent between 2006 and 2008, and it America’s largest Hispanic Christian Orga- to put the nomination of Judge will likely be worse in 2009. If there nization, The National Hispanic Christian Sotomayor in context. I want to put it were ever a time small business owners Leadership Conference (NHCLC), serving ap- in the context of what the Supreme in Minnesota needed a leg up, it is proximately 16 million Hispanic American Court has done these past 5 years and right now. But 2 years ago, this Su- Born Again Believers via 25,434 member churches, hereby endorses Judge Sonia how that has affected the lives of Min- preme Court overturned one of the Sotomayor’s nomination to the Supreme nesotans and of all Americans. strongest protections small business Court. Our country is going through some owners have under the Sherman Act, We commend President Obama’s selection tough times. We are experiencing the our main antitrust law. For over 100 of Sotomayor as a brilliant exercise in prag- highest unemployment in decades. years, it has been illegal for manufac- matism and moderation. First, as Hispanic Businesses are failing. Investors are turers to price-fix—to force retailers to Americans, we celebrate her nomination. Her seeing their investments shrink, even sell their goods at a certain price. journey is our collective journey. Sotomayor disappear. Yet, despite all of this, de- stands as a model to all our Hispanic young Today, thanks to this Court’s ruling in people throughout America that faith, fam- spite our faltering economy, in the the Leegin case, price fixing is now ily and education can overcome the most dif- past 5 years this Supreme Court has re- permitted. In fact, the burden is now ficult of environments and economic cir- stricted the rights of Americans as em- on consumers and small business own- cumstances. ployees, as small business owners, and ers to show, through a complex eco- More importantly, as Americans concerned as investors, and they have done this nomic analysis, that the price fixing with judicial activism and defacto legisla- by overturning longstanding prece- hurts them. tion from many sectors of our judiciary, dents. Sotomayor reflects, via her career on the Let me put this in the context of This Court has been no kinder to in- bench, the type of tempered restraint and Minnesota. Ten years ago, Minnesota vestors. Like almost all American in- moderation necessary for appropriate appli- vestors, Minnesota investors are reel- cation of the rule of law. Without a doubt, had an unemployment rate of 2.8 per- cent. Let me repeat that. Ten years ing from the trillions of dollars in Judge Sotomayor serves with a moderate losses in the stock market. These voice without displays of bias towards any ago, Minnesota had an unemployment losses were partly caused by structural party based on affiliation, background, sex, rate of 2.8 percent. Today, it is 8.4 per- color or religion. Judge Sotomayor’s over 700 cent. In certain counties, it hovers be- deficiencies in our finance system, but decisions stand as testimony of a commit- tween 13 and 14 percent. At the same they were also caused by speculation ment and respect for the rule of law, particu- time, Minnesota has an older work- and by fraud, by people such as Bernie larly the importance of stare decisis. force. The Twin Cities are fourth in the Madoff and Tom Petters, a Minnesota As an organization serving America’s larg- financier who is in prison right now est minority group and the fastest growing Nation in the percentage of seniors working past the age of 65. When busi- charged with a $3.5 billion scheme that religious demographic, we seek to reconcile bilked stockholders in a number of both the vertical and horizontal planes of nesses are making tough personnel de- the Christian message. As we serve both cisions, you can bet they are taking a Minnesota companies. Yet, last year, matters of the soul and community, reli- good hard look at older workers who the Supreme Court handed down a deci- gious liberties stand as an issue of utmost have higher pension and health care sion that severely limited investors’ concern for our constituents. Judge costs. ability to defend themselves against Sotomayor’s rulings affirm Constitutional securities fraud. In the Stoneridge safeguards for those liberties. But just last month, the Supreme Court eviscerated the one law designed case, the Supreme Court said that an In conclusion, even moderate and conserv- investor cannot sue an outside ac- ative evangelicals within our ranks find no to prevent discrimination against older reason to conclude that the nomination and workers: the Age Discrimination in countant or a lawyer who worked with confirmation of Judge Sonia Sotomayor Employment Act, or ADEA, as it is a company to fraudulently alter its fi- would diminish the collective application of called. Because of this case, the Gross nancial records to deliberately cook its Constitutional rights and freedoms to a reli- case, it is not enough for a worker books unless that third party some- gious community committed to Life, Liberty suing for age discrimination to show he how, for some reason, publicly an- and the Pursuit of Happiness. For that mat- nounced its involvement. ter, we encourage the support of this nomi- or she was fired improperly because of nee from both sides of the political aisle. their age. Under this new standard, an Together, the Age Discrimination in JESSE MIRANDA, older worker must now show that age Employment Act, title VII of the Civil CEO, NHCLC, President of was the single determinative reason for Rights Act, the Sherman Act, and the Miranda Center for Hispanic Leadership. the firing. This is a difficult, if not Securities Exchange Act are some of Mr. CASEY. Mr. President, I yield practically impossible, standard to the strongest protections employees, the floor. meet. This also breaks with the long- small business owners, and investors

VerDate Nov 24 2008 04:31 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00062 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.083 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8847 have under American law. These laws cent second amendment case. In both Judge Sotomayor is one of the lead- help to level the playing field for the of these cases, Judge Sotomayor sim- ing jurists of our Nation. If confirmed, less powerful in our society. Yet, in ply followed the Supreme Court’s own she will be the only judge on the Su- each of these cases, for each of these maxim that it is the Court’s—the Su- preme Court with trial court experi- laws, this Supreme Court has ignored preme Court’s—prerogative alone to ence. She would be one of the only ones longstanding precedent and original overrule one of its precedents. When a with experience as a prosecutor. As congressional intent to limit the rights three-judge panel in Ricci affirmed the many have commented, she would be these laws afford precisely when they district court’s decision, it was simply the appointee with the most Federal are needed the most. following existing title VII law. When court experience in a century. The Supreme Court’s willingness to the three-judge panel in the Maloney We have, right now, a chance to ignore longstanding precedent to re- case said that the second amendment make history. Thankfully, unlike a lot strict individual rights is not limited does not apply to the States, it was of the important decisions we have to to our economy. This same Supreme simply following a 120-year-old Su- make that come before this body, this Court recently overturned a 30-year preme Court precedent that said ex- is an easy one to make. rule that requires that a woman’s actly that. Moreover, a three-judge Judge Sotomayor will not only be health be taken into account in any panel on the Seventh Circuit that in- the first Latina on the Supreme Court; law regulating her right to choose. cluded two of the most prominent neg- she will be the first person of Hispanic The Court is also poised to overturn ligent conservative judges in the coun- descent to reach the pinnacle of any critical protections to voters. This Su- try, Frank Easterbrook and Richard one of the three branches of the Fed- preme Court has questioned the con- Posner, reached the same exact conclu- eral Government. She could not be stitutionality of section 5 of the Voting sion unanimously. more qualified for this position. Her Rights Act, even though the 15th Judge Sonia Sotomayor is a judge appointment will help protect the indi- amendment expressly grants Congress who follows and respects precedent. vidual rights and liberties that are so She is a judge who does not make new the power to regulate elections and necessary for Minnesotans and for all law. even though Congress recently voted to Americans—and that this Supreme In fact, it seems that Judge reauthorize those provisions for the Sotomayor’s worst sin in this whole Court has steadily, and substantially, fourth time by a vote of 98 to 0. Talk process is her straightforward observa- eroded. about judicial activism. This is judicial I am honored to cast my vote in tion that our life experiences shape activism. This is the Supreme Court who we are and what we do. This is not favor of Judge Sonia Sotomayor, and I questioning the constitutionality of a a new idea. Mr. President, 175 years hope my colleagues on both sides of the law passed by Congress under an ex- ago, on the first page and at the most aisle will join me. plicit and exclusive grant of power famous treatise in American law, Oli- I yield the floor. The PRESIDING OFFICER. The Sen- granted in the Constitution of the ver Wendell Holmes wrote: United States. ator from Oregon is recognized. The life of the law has not been logic; it If she is confirmed, the first case Jus- has been experience. Mr. WYDEN. Mr. President, while tice Sotomayor will hear will recon- this is my first opportunity to vote for This isn’t just an old idea either. Jus- sider the constitutionality of sections a Supreme Court nominee named by a tices Alito, Scalia, and Thomas each of McCain-Feingold that the Supreme Democratic President, I don’t view the acknowledged in their own confirma- Court upheld just 6 years ago. The un- confirmation of judges through a par- tion hearings that their own life expe- derlying principle in question goes tisan lens. Instead of partisanship, I riences—being born into an immigrant back over 100 years to the Tillman Act have developed several criteria for as- family, an exposure to discrimination, of 1907. For 100 years, Congress has said sessing Supreme Court nominations. I a childhood in poverty—shaped their with increasing force that corporations believe these criteria are straight- own approach to judging. should not be spending money on Fed- But Judge Sotomayor went beyond forward, and they are easy to under- eral election campaigns. Yet this Court Justices Alito, Scalia, and Thomas by stand: is poised to contravene that 100-year- also recognizing that judges must be Does the nominee have extensive ex- old rule and its own ruling on the iden- aware of these prejudices, and they perience with the law and a judicial tical provision just 6 years ago. Again, must not allow these prejudices to im- temperament? I think this is judicial activism. In pact their approach to a case. Has the nominee demonstrated sharp fact, I think it is judicial activism in Since this is a body that values its legal intelligence and sound judgment? one direction: away from longstanding history, I thought it would be appro- Does the individual display a judicial protections for the individual and to- priate to close by mentioning the last philosophy that falls within the main- ward a more friendly law for the power- nominee to the Supreme Court with a stream of American legal thought? ful. comparable amount of experience to Is he or she able and willing to sepa- As I said last week, I firmly believe Judge Sotomayor. That person is Ben- rate their personal beliefs from their that in this context, with this Supreme jamin Cardozo. constitutional obligations? Court, a vote for Judge Sotomayor is a Judge Cardozo was nominated to the On each count, I rule in favor of vote against judicial activism. In a Supreme Court in 1932, after spending Judge Sotomayor. careful review of her opinions as an ap- 18 years on his State’s highest court. My colleagues and I have all been lis- pellate judge, the nonpartisan Congres- Like Judge Sotomayor, Judge Cardozo tening carefully to Judge Sotomayor’s sional Research Service recently con- was from New York. Like Judge testimony, and we have reviewed her cluded that: Sotomayor, he had a tough childhood, record. In that record, everything I [p]erhaps the most consistent char- losing a parent when he was 9 years have been able to ascertain indicates acteristic of Judge Sotomayor’s approach as old. He had a tough childhood like her. that Justice Sotomayor will look a lot an appellate judge has been an adherence to Like Judge Sotomayor, Cardozo was like Judge Sotomayor—an exemplary the doctrine of stare decisis— from an ethnic minority—he was a Se- arbiter of the law, firm but practical, The upholding of past judicial prece- phardic Jew, a descendent of Por- tough but fair. dents. Of the 230 majority opinions tuguese immigrants. Like Judge For these reasons, I will cast my vote Judge Sotomayor wrote as an appellate Sotomayor, Cardozo was rightly proud to confirm her as the next Associate judge, the Supreme Court has reversed of his heritage. Like Judge Sotomayor, Justice of the Supreme Court. only 3. That is 3 reversals out of 230 Cardozo was the most experienced I speak from, perhaps, a unique posi- majority opinions. nominee to the Supreme Court in his tion among Senators. I may be the But the best examples of Judge generation. shortest serving Senator in the history Sotomayor’s inherent judicial restraint Yet, unlike Judge Sotomayor, Judge on our Senate Judiciary Committee. At are the two cases for which she has Cardozo did not attract so much con- the beginning of the 111th Congress, ironically received the most criti- troversy. In fact, he was unanimously Senator REID asked me to serve on this cism—the Ricci case and Maloney v. confirmed to the Supreme Court in a extraordinarily important committee. Cuomo, the Second Circuit’s most re- voice vote that lasted all of 10 seconds. Senator REID told me it would be a

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00063 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.084 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8848 CONGRESSIONAL RECORD — SENATE August 5, 2009 temporary assignment, but I was still the judge’s impressive background. I do family members; and she certainly in- on the committee when Judge want to spend some time talking about dicated she was going to spend a lot of Sotomayor was nominated to the Su- the issues that Judge Sotomayor and I time trying to learn about the history preme Court. I very much enjoyed my discussed in my office most exten- of cases in this area and the Court’s meeting with Judge Sotomayor, and I sively—Presidential power and end of judgments on end-of-life care. told her I wasn’t sure how long I would life. I have been very interested particu- be serving on the committee. I said I Serving on the Senate Select Com- larly in Justice Brandeis’s dissent in felt a little bit like a snowflake with mittee on Intelligence, I have followed the Olmstead case. This was a 1928 the prospect of an Oregon rain coming the history with respect to a Presi- case. The Supreme Court later adopted in the afternoon. In fact, the rain came dent’s Commander in Chief authority. Justice Brandeis’s view in the Katz just a few days before the Judiciary Disagreements about this authority case which essentially made it clear Committee began the confirmation and how it is applied are certainly there is a right to be left alone, a right hearing for Judge Sotomayor. I did get nothing new. There have been vigorous to be respected in these very delicate a chance to talk with her and discuss, debates about this issue since our questions. at some length, her views with respect country was founded. But over the past What concerned me so much about to the key issues surrounding how a several years, there has been especially the Terry Schiavo case—and again, Senator evaluates a nominee to the Su- heated debate around these questions Judge Sotomayor gave no inkling preme Court. and, in particular, the issue of whether, about how she would rule on an end-of- On the basis of that discussion and a during times of war, the President has life case—I think she understood my review of her record, while I wasn’t the authority to ignore laws passed by concern, and would follow up on it, able to cast a vote for her in com- the Congress. As a result, there have that we cannot have elected officials, mittee, it is going to be, later this been several occasions, over the past and particularly the Senate, become week, an honor for me to vote for her few years, where the Supreme Court something of a medical court of ap- on the Senate floor. has had to rule on major national secu- peals where the Senate essentially ap- When I met with Judge Sotomayor, rity issues and address this question di- points itself the arbiter of these very we discussed a number of important rectly. difficult tragedies. issues—particularly matters relating Our Court has frequently been sharp- Judge Sotomayor did not commit to national security, the power of the ly divided on this issue. At the same herself to any specific position on end- Commander in Chief, and we also spent time, it has consistently ruled that—in of-life issues or any of the other issues. some time on a matter that I know the Justice Sandra Day O’Connor’s words— And, in fact, the judge said that com- occupant of the chair is most inter- ‘‘a state of war is not a blank check for ing from New York where they have a ested in and that is end-of-life health very sophisticated set of laws and legal the President.’’ I believe this is a prin- care. What struck me the most about protections to empower the individual ciple that has to be upheld. Judge Sotomayor was her openness, When I raised these issues with Judge to make their own choices—not gov- her intellectual curiosity, and her de- Sotomayor, I was impressed with her ernment—empower the individual to sire to make sure she had all the facts, thoughtfulness, her knowledge, and the make these very difficult questions, all the information, all the views and experience she discussed about dealing the judge said because New York had background and the reading material those statutes empowering individuals with these thorny issues. Her answers that you have to have when you are that she would spend time looking at made me believe that, as a Supreme going to make a call not on the basis of the laws and the decisions of the Su- Court Justice, she would apply the your predisposition but on the basis of preme Court in this area, reflecting, Constitution in a way that struck a the law and the law as it is applied to again, her commitment to follow the balance—a very careful balance—be- the facts. facts, follow the law, and not bring any tween protecting our collective secu- In a number of areas we discussed predisposition of one sort or another to rity and protecting our individual lib- with respect to end of life, Judge a very difficult and contentious area of erty. Sotomayor acknowledged that these the law, one that is as sure as night We have always had, in the national were issues she hadn’t personally con- follows the day is going to be before security area, something of a constitu- sidered. The occupant of the chair and the Supreme Court again—the matter tional teeter-totter, where the Found- I have talked at some length about the of end-of-life health care. politicized case of the late Terri ing Fathers always sought to try to en- Let me also mention one of our col- Schiavo. I objected on the floor of the sure that there was an appropriate bal- leagues talked about her respect for Senate to the Senate considering that ance between protecting our Nation precedent. I asked her about a woman’s matter. and securing our individual liberties; right to choose. She said that is an Of course, Judge Sotomayor could and maintaining that balance is what area of the law that has been settled not go into how she would rule on end- the Founding Fathers saw as para- for decades. of-life cases. But we talked at some mount. On the second amendment, she indi- length about those issues, and I am While Judge Sotomayor certainly cated she would not try to eliminate going to discuss them later in this gave no inkling to me in our discussion the right to own guns for hunting or statement tonight. about national security how she might for personal protection, again, what I wish to start my comments by say- rule in a particular case, I felt very amounts to a recognition of existing ing I believe, with the young people at strongly that she would be able to de- law. home in Oregon, this nomination by fine the reach of the Commander in On foreign law, she said she would President Obama is regarded as an in- Chief’s power so as to strike that ap- not rely on international legal deci- spiration and a remarkable personal propriate balance between collective sions to interpret the Constitution. story. Oregonians have told me they security and individual liberty. This is a nominee who is going to be look at her journey as the realization I must say, I don’t want judges who very sensitive to following precedent, of the American dream. Oregonians will defer to any one President. I want following the facts, and ensuring that have followed her testimony before the judges who are going to defer to the those principles are what guide her Senate Judiciary Committee. They be- Constitution. I believe Judge service on the U.S. Supreme Court. lieve she is qualified for this job. They Sotomayor will do that in her service Before I close, I wish to submit a let- are very excited about the fact that on the U.S. Supreme Court. ter the Senate Judiciary Committee this nomination makes history, and I As I mentioned, I discussed with the received in support of Judge commend the President for dem- judge the matter of end-of-life health Sotomayor from the Federal Bar Asso- onstrating with this nomination how it care. This is a very sensitive issue for ciation. They passed a resolution in is possible to increase the diversity, millions of Americans. What was strik- support of the judge’s nomination. The talent, and experience on the Supreme ing about this in our discussions, when Senate Judiciary Committee has also Court with one very capable individual. she and I met, is she recognized it was received statements of support from Chairman LEAHY and others have a contentious area of the law—one that the Hispanic National Bar Association, done an excellent job of going through deals with the rights of individuals and from the past presidents of NHBA.

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00064 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.085 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8849 I ask unanimous consent to have 2. To exhort the United States Senate and scent in the United States, its territories printed in the RECORD the letter and Its Committee on the Judiciary to expedi- and Puerto Rico. For more information resolution and statement of support. tiously consider and favorably act on Judge about the HNBA, please visit www.hnba.com. There being no objection, the mate- Sonia Sotomayor’s nomination, so that the United States Supreme Court may have a HNBA PRESIDENTS’ STATEMENT rial was ordered to be printed in the full complement of Justices by the time the RECORD, as follows: Supreme Court reconvenes on October 5, We the undersigned past presidents of the JUNE 1, 2009. 2009. Hispanic National Bar Association whole- Re Nomination of Judge Sonia Sotomayor to In San Juan, Puerto Rico, this 29th day of heartedly support the nomination of Judge the United States Supreme Court. May, 2009. Sonia Sotomayor to serve as an Associate Justice on the United States Supreme Court. Hon. PATRICK J. LEAHY, HISPANIC NATIONAL BAR ASSOCIATION, Judge Sotomayor has exceptional academic Chairman, Committee on the Judiciary, U.S. JULY 8, 2009. and professional credentials. She is a summa Senate, Washington DC. HNBA ANNOUNCES ENDORSEMENT OF THE cum laude graduate of Princeton University DEAR CHAIRMAN LEAHY: On May 26, 2009, HONORABLE SONIA SOTOMAYOR and graduated from Yale Law School, where President Barack Obama nominated Judge WASHINGTON, DC.—The Hispanic National she served as an editor of the Yale Law Jour- Sonia Sotomayor to fill the vacancy left by Bar Association (HNBA) announced today nal. Before her appointment to the federal Justice David H. Souter in the United States that it has formally endorsed The Honorable bench, Judge Sotomayor was a prosecutor Supreme Court. Sonia M. Sotomayor to serve as Associate for five years in the Manhattan District At- The Hon. Raymond L. Acosta Puerto Rico Justice of the Supreme Court of the United torney’s Office and then a commercial liti- Chapter of the Federal Bar Association has States. The HNBA’s Special Committee on gator in a private law firm. Judge issued the enclosed resolution supporting the U.S. Supreme Court has concluded its Sotomayor has been a federal judge for 17 Judge Sotomayors nomination and endorsing most recent review of Judge Sotomayor’s years, serving with distinction on both the her as qualified in every respect to fill this qualifications and overall record, and found U.S. District Court for the Southern District important position. her to be ‘extraordinarily well-qualified’ to of New York and the Second Circuit Court of In sharing our background, please, note serve on the Nation’s highest court. Accord- Appeals. that the Federal Bar Association is a profes- ing to Ramona E. Romero, HNBA National sional organization for private and govern- We have all long been troubled by the fact President, ‘‘the HNBA unanimously endorsed that no person of Hispanic heritage has ever ment lawyers and judges that has been es- Judge Sotomayor after reviewing her judi- tablished for over 80 years with a member- served on our nation’s highest court. During cial record, professional competence, intel- our terms as HNBA President, each and ship of about 16,000 federal practitioners and lect, character, reputation for integrity, over 900 members of the bench. The FBA is every one of us engaged in bipartisan efforts temperament, commitment to equal justice to diversify the federal bench and to build a dedicated to the advancement of the science and record of service to the American public of jurisprudence and to promoting the wel- pipeline of qualified Latino lawyers, jurists and the Hispanic community.’’ Carlos Ortiz, and legal scholars who would be prepared to fare, interests, education and professional who co-chairs the HNBA’s Supreme Court development of all attorneys involved in fed- serve on the U.S. Supreme Court with dis- Committee, added that ‘‘based on our review, tinction. We have always been convinced eral practice. The Hon, Raymond L. Acosta we are certain that she is extraordinary Puerto Rico Chapter is one of the largest and that greater diversity on the Supreme Court well-equipped to serve on our country’s high would broaden and strengthen the perspec- most distinguished chapters of the Federal court. We believe that she embodies all the Bar Association. tive of its jurisprudence and enhance the ad- qualities required for service as a Justice, ministration of justice for all Americans. We greatly appreciate your consideration and are confident that, when confirmed, she of our resolution, and respectfully request Words cannot adequately express the delight will render fair and impartial justice for all in our hearts that our time has finally ar- that you include it in the candidate’s Senate Americans. We recommend her without any Judiciary Committee evaluation file. rived. We urge the U.S. Senate to confirm an reservation.’’ exceptional jurist with extraordinary federal Respectfully, This is the HNBA’s fourth review of Judge judicial and legal experience, Judge Sonia KATHERINE GONZA´ LEZ-VALENTIIN, Sotomayor’s record. The HNBA conducted Sotomayor. President. due diligence before including Judge Mario G. Obledo, John R. Castillo, Sotomayor on a short list of potential His- Lorenzo Arredondo, Gilbert F. Casellas, RESOLUTION OF THE BOARD OF DIRECTORS ON panic American nominees for the U.S. Su- William Mendez, Jr., Mark S. Gallegos, PRESIDENT BARACK OBAMA’S NOMINEE FOR preme Court released in 2005. Her credentials Robert J. Ruiz, Carlos G. Ortiz, Ben- THE CURRENT JUDICIAL VACANCY IN THE were also reviewed by the HNBA prior to her jamin Aranda III, Robert M. Maes, UNITED STATES SUPREME COURT elevation to the Second Circuit in 1998, and Mari Carmen Aponte, Robert G. Whereas on May 26, 2009, President Barack when she was nominated for the U.S. District Mendez, Michael N. Martinez, Jimmy Obama nominated Judge Sonia Sotomayor Court. ‘‘In each instance, we have been im- Gurule, Dolores Atencio, Wilfredo to fill the vacancy left by Justice David H. pressed by her intellect, her commitment to Caraballo, Mary T. Hernandez, Hugo Souter in the United States Supreme Court; the rule of law and equal justice, her experi- Chaviano, Lillian G. Apodaca, Rafael Whereas Judge Sotomayor has received ence, and her respect for all who interact A. Santiago, Duard M. Bradshaw, Alan widespread support, and in view of this Chap- with the legal system,’’ said Ms. Romero. Varela, Jimmie V. Reyna, Jose Gaitan, ter, is an exceptionally qualified federal ju- Since the nomination of Judge Sotomayor to Gregory A. Vega, Alice Velazquez, rist with a stellar record of professional the U.S. Supreme Court in late May, the Angel G. Gomez, Carlos Singh, Nelson achievement; HNBA has met with members of the Senate A. Castillo, Victor Marquez. Whereas the Board of Directors of this Judiciary Committee and their staff to advo- Chapter is convinced that the nominee will cate for a fair and expeditious confirmation Mr. WYDEN. Mr. President, this or- administer justice fairly and impartially, hearing. The HNBA looks forward to the op- ganization, the Hispanic National Bar and will faithfully and impartially discharge portunity to reiterate its strong support for Association is not for profit, a national and perform all the duties incumbent upon Judge Sotomayor during the confirmation membership association that rep- her under the Constitution and laws of the process. resents the interests of more than United States; and further, will support and The HNBA Supreme Court Committee is defend the Constitution of the United States co-chaired by Robert Raben, founder and 100,000 attorneys, judges, law profes- against all enemies, foreign and domestic, President of The Raben Group. Its members sors, legal assistants, and law students and will bear true allegiance to our Constitu- are Michael A. Olivas, Houston, TX; HNBA of Hispanic descent in United States, tion and laws; Law Professor Sect Chair Emeritus, 1987– its territories, and Puerto Rico. Whereas this Board of Directors is fully 2009; Gilbert F. Casellas, Round Rock, TX; After a review of her qualifications satisfied that Judge Sotomayor possesses the HNBA Past President, 1984–1985; Mark S. and overall record, the Hispanic Na- necessary professional skills, temperament, Gallegos, Miami, FL; HNBA Past President, tional Bar Association’s Special Com- and other qualifications that are required to 1988–1989; Dolores S. Atencio, Denver, CO; perform this important judicial role with HNBA Past President, 1991–1992; Mary T. mittee on the U.S. Supreme Court con- distinction; Hernandez, San Jose, CA; HNBA Past Presi- cluded that Judge Sotomayor is ex- Now, therefore, the Board of Directors of dent, 1994–1995; Gregory A. Vega, San Diego, traordinarily well qualified to serve on the Federal Bar Association, Hon. Raymond CA; HNBA Past President, 1997–1998; Lillian the Nation’s highest Court. L. Acosta Puerto Rico Chapter, hereby R. Apodaca, Albuquerque, NM; HNBA Past Let me close simply by saying that unanimously resolves: President, 1998–1999. when we have to review a nominee for 1. To express its unconditional satisfaction The Hispanic National Bar Association this extraordinarily important posi- with the qualifications of Judge Sonia (HNBA) is an incorporated, not-for-profit, Sotomayor to fill the vacancy in the United national membership Association that rep- tion, one of the most important meas- States Supreme Court, and the Chapters un- resents the interests of the more than 100,000 ures for me is to know that the nomi- conditional support of this important nomi- attorneys, judges, law professors, legal as- nee’s views are squarely in the main- nation; sistants, and law students of Hispanic de- stream of American jurisprudence.

VerDate Nov 24 2008 05:23 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00065 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.086 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE S8850 CONGRESSIONAL RECORD — SENATE August 5, 2009 I came away believing that, but I Sotomayor presided over roughly 450 Court, I fully expect that school-age hope that the Senate will not take my cases. As a member of the Second Cir- girls, such as my three daughters, will word for it or any other colleague’s cuit Court of Appeals, Judge have an important role model of suc- word for it. I think we ought to reflect Sotomayor has participated in over cess to follow in their own lives. on what the American Bar Association 3,000 panel decisions and authored over These intangible factors make her said. They gave her their highest rat- 400 published opinions. nomination an important statement ing. Or listen to former FBI Director Seldom does the Senate have a record for millions of young Americans set- Louis Freeh who called her an ‘‘out- as long as Judge Sotomayor’s. There is ting out on their own paths. standing judge.’’ Or read the dozens of no mystery here about what kind of I have the utmost faith in Sonia endorsements for her, including those Justice she will be. Sotomayor. The President made an ex- from the American Hunters & Shooters Since joining the second circuit, she cellent nomination. Through sheer per- Association, the Chamber of Com- has participated in 434 published panel sistence, hard work, intelligence, and merce, and the National Association of decisions where the panel included at integrity, she has become an inspira- Women Lawyers. least one judge appointed by a Repub- tion to the American people, and she is I started my statement tonight by lican President. In these cases, Judge a compelling reminder that in this Na- laying out the criteria that I believe Sotomayor agreed with the result fa- tion, everything is possible. ought to be used in evaluating a Su- vored by the Republican appointee 95 I am proud to commit my vote in preme Court nominee. In terms of percent of the time. She has ruled for favor of this nominee. those criteria, Judge Sotomayor is an the government in 83 percent of immi- Mr. LEAHY. Mr. Presdient, many individual who will bring great credit gration cases, and 92 percent of crimi- independent studies that have closely to the Supreme Court. She will be a nal cases. She has hewed closely to sec- examined Judge Sotomayor’s record role model for millions and millions of ond circuit precedent. On employment have concluded that hers is a record of young people in our country. I hope our cases, she has split her decisions even- applying the law, not bias. For exam- colleagues will vote in a resounding ly. By all accounts, she is a main- ple, the American Bar Association’s fashion in favor of her nomination to stream moderate nominee. Standing Committee on the Federal serve on the U.S. Supreme Court. The American Bar Association unani- Judiciary unanimously found Judge Mr. President, I yield the floor. mously found her well qualified. She is Sotomayor to be ‘‘well qualified’’—its The PRESIDING OFFICER. The Sen- someone with a long record of modera- highest rating—after conducting a ator from Colorado. tion and humility toward the law. Her thorough evaluation that included an Mr. BENNET. Mr. President, I, too, work is driven by a thorough applica- examination of her integrity and free- rise in strong support of the Presi- tion of the law to the facts of each dom from bias. The Chair of the Stand- dent’s historic nomination of Judge case. Our focus and the basis for sup- ing Committee testified, ‘‘the com- Sonia Sotomayor to be Associate Jus- port or opposition should be on her mittee unanimously found an absence tice of the U.S. Supreme Court. of any bias in the nominee’s extensive The Senate has no more important qualifications and record. And on this work,’’ and described Judge responsibility than to advise and con- point, she clearly should be confirmed. Sotomayor’s opinions as ‘‘show[ing] an sent on nominations to our Nation’s This week, we have a historic oppor- adherence to precedent and an absence highest Court. It will be an honor, on tunity to add a mainstream, moderate of attempts to set policy based on the behalf of the people of my State, to judge to our Nation’s highest Court. cast my vote to confirm Sonia President George H. W. Bush saw this judge’s personal views.’’ Numerous other studies from groups Sotomayor. kind of potential in her when he nomi- Judge Sotomayor is a distinguished nated her to the Federal district court, such as the Congressional Research lawyer with a lifetime of experience in and she has fully realized his faith in Service, the New York City Bar Asso- and out of the courtroom, as a liti- her, so much so that she stands on the ciation, the Transactional Records Ac- gator, a prosecutor, a trial judge, and brink of history after being nominated cess Clearinghouse, the National Asso- an appellate judge on one of the most by President Obama. ciation of Women Lawyers, and the prestigious courts in the Nation. Judge Sotomayor has all the profes- nonpartisan Brennan Center for Jus- At an early point in her career, she sional ingredients to make a great Su- tice, have reached similar conclusions. showed a dedication to public service, preme Court Justice. It is on that basis These studies were entered into the serving 5 years as an assistant district she should be confirmed by this body record during Judge Sotomayor’s con- attorney in New York City. As a pros- by an overwhelming vote. firmation hearings. Nothing in these ecutor, she focused on murder and rob- But there is more to Judge studies or in her 17 year record on the bery cases at a time when violence was Sotomayor than this impressive legal bench raises a concern that Judge high in New York and law and order career. Judge Sotomayor has also lived Sotomayor would substitute feelings was essential. And she has chosen in a truly American story. The daughter for the command of the law. recent years to share her knowledge of Puerto Rican parents, Judge Judge Sotomayor’s critics attack her and experience with young legal schol- Sotomayor lost her father at the age of by pretending that President Obama ars as an adjunct professor at local law 9 and was raised in a housing project in does not respect the Constitution and schools. the Bronx. Through strong-willed par- the rule of law. They are wrong. They Three Presidents from both parties enting by her mother, she rose from attack him for using the word empathy have also agreed she merits a pres- difficult circumstances to receive the to describe one of the qualities he is tigious lifetime judicial appointment. very highest honor that Princeton looking for in a judicial nominee. He That is impressive bipartisan support awards to an undergrad. She also went has never said that empathy is in- at our Nation’s highest levels. to Yale Law School where she had a tended to override the rule of law. It is, The question before the Senate is much more distinguished career than nonetheless, ironic that the Senate Re- whether the nominee meets the high my own. publican leader has criticized Judge standards we rightfully expect of our When she is confirmed as the first Sotomayor for not being more empa- Supreme Court Justices. It is our role Hispanic and third woman ever to be thetic and ruling for Frank Ricci, Ben to advise and consent on whether a nominated to the Supreme Court, Vargas, and the other plaintiffs despite President’s nominee seeks to apply the Judge Sotomayor will be an inspira- the well-settled law in the Second Cir- law and not to make or remake it. On tional example to all children all cuit which she applied in that case. both of these fronts, Judge Sotomayor across the country, telling us that re- They attack her by misconstruing meets and far exceeds the mark. She is gardless of where you come from, re- what empathy means. Empathy is un- clearly a judicial moderate and has gardless of your economic cir- derstanding and awareness. That is demonstrated this through a Federal cumstances, nothing is beyond your what Justice Alito was testifying judicial record longer than any nomi- reach in America. about at his confirmation hearing. nee in the last 100 years. Judge Sotomayor will be a role That is what Justice Thomas was testi- As Federal district court judge in the model for young Coloradans in all of fying about when he said that what he Southern District of New York, Judge our schools, and with her on the high would bring to the Supreme Court ‘‘is

VerDate Nov 24 2008 03:02 Aug 06, 2009 Jkt 079060 PO 00000 Frm 00066 Fmt 0637 Sfmt 0634 E:\CR\FM\G05AU6.087 S05AUPT1 jbell on DSKDVH8Z91PROD with SENATE August 5, 2009 CONGRESSIONAL RECORD — SENATE S8851 an understanding and the ability to that while all judges seek to set aside basis of race. This does not mean that stand in the shoes of other people their personal views, they do not al- our courts have the power to remedy across a broad spectrum of this coun- ways succeed, and we can be on guard every problem in America. They do try.’’ Justice Alito and Justice Thomas against those views influencing judi- not. In addition, they can abuse their were not testifying that they would be cial outcomes. power, as I think the Supreme Court biased. What the partisan critics do not Judge Sotomayor has described her- did when it intervened in the Presi- appreciate is that the opposite of em- self as ‘‘an ordinary person who has dential election in 2000 and determined pathy is indifference and a lack of un- been blessed with extraordinary oppor- its outcome. But, we should never for- derstanding. Empathy does not mean tunities and experiences.’’ In her open- get that it is through its equitable biased or mean picking one side over ing statement at her Supreme Court powers that the Supreme Court and another, it means understanding both confirmation hearing she spoke about most other courts in this country are sides. witnessing the ‘‘human consequences’’ able to do justice and to ensure fair- When she was designated by the of judicial decisions. She testified that ness and equity. In that regard, I be- President, Judge Sotomayor said: ‘‘The her judicial decisions ‘‘have not been lieve that the experience and wisdom wealth of experiences, personal and made to serve the interests of any one Judge Sotomayor has gained from an professional, have helped me appre- litigant, but always to serve the large extraordinary life will benefit all ciate the variety of perspectives that interest of impartial justice.’’ Americans. present themselves in every case that I We have a long and important tradi- Mr. President, I yield the floor and hear. It has helped me to understand, tion in the law of seeking justice and suggest the absence of a quorum. respect, and respond to the concerns fairness and equity. Judge Sotomayor The PRESIDING OFFICER. The and arguments of all litigants who ap- spoke about the meaning of the word clerk will call the roll. pear before me, as well as to the views ‘‘justice’’ a decade ago and said: ‘‘Al- The legislative clerk proceeded to of my colleagues on the bench. I strive most every person in our society is call the roll. never to forget the real-world con- moved by that one word. It is a word Mr. REID. Mr. President, I ask unan- sequences of my decisions on individ- embodied with a spirit that rings in the imous consent that the order for the uals, businesses, and government.’’ hearts of people. It is an elegant and quorum call be rescinded. It took a Supreme Court that under- beautiful word that moves people to be- The PRESIDING OFFICER (Mr. stood the real world to see that the lieve that the law is something spe- BEGICH). Without objection, it is so or- seeming fair-sounding doctrine of ‘‘sep- cial.’’ dered. arate but equal’’ was a straightjacket In this country, the law is special, of inequality. We do not need more and it is special because of what it pro- f conservative activists second guessing tects and what it can do. In England MORNING BUSINESS there were separate law courts and Congress and who through judicial ex- Mr. REID. Mr. President, I ask unan- chancery courts. But, in the United tremism override congressional judg- imous consent to proceed to a period of States we have combined these func- ments intended to protect Americans’ morning business with Senators al- tions to be performed by all of our Fed- voting rights, privacy rights and access lowed to speak for up to 10 minutes eral judges. to health care and education. each. In her widely misconstrued speech at We all talk about the importance of The PRESIDING OFFICER. Without the University of California at Berke- judges following the law. Yet we should objection, it is so ordered. ley, Judge Sotomayor said: ‘‘[J]udges remember that the law that judges must transcend their personal sym- must follow includes the reconstruc- f pathies and prejudices and aspire to tion amendments and particularly the (At the request of Mr. REID, the fol- achieve a greater degree of fairness and 14th amendment, which transformed lowing statement was ordered to be integrity based on the reason of law.’’ the rule of law and the role of judges printed in the RECORD.) That parallels what Chief Justice Rob- and Congress in the United States. In COMMENDING DR. RICHARD BAKER erts said at his confirmation hearing the aftermath of the bloody, tragic when he testified about ‘‘the ideal in Civil War, the 14th amendment was ∑ Mr. BYRD. Mr. President, the U.S. the American justice system’’ and passed to give the courts and the Con- Senate is an institution that reveres judges ‘‘doing their best to interpret gress a more active role in defining and precedent, continuity, and tradition. the law, to interpret the Constitution, protecting civil rights. The complete Ours is an institution that prides itself according to the rule of law’’ and not abolition of slavery was only a part of on the great men and women who pre- substituting their own personal agen- its grand purpose. It was driven by a ceded us in this Chamber, and the role da. profound desire to arm the newly freed this institution has played in pro- Those who spent days asking Judge slaves—and all Americans—with the tecting our Nation, and in making our Sotomayor to explain what she meant rule of law—set forth in the grand Nation a better place in which to live, in a partial quotation from that speech phrasing of the equal protection, due work, and raise families. This is an in- about the decisions reached by a ‘‘wise process, and privileges or immunities stitution that prides itself on its his- Latina woman with the richness of her clauses—to guarantee their equal tory. experiences’’ miss that she begins that rights against invidious governmental Therefore, it is important that the statement with the words, ‘‘I would discrimination. Senate have an official historian, along hope.’’ They miss that her statement is The 14th amendment does not sup- with an Historical Office to document aspirational. She would ‘‘hope’’ that plant but reinforces the historical equi- our history, and supervise the manage- she and the other Hispanic women table powers of our courts to redress ment of the records of the Senate as an judges would be ‘‘wise’’ in their deci- problems. It is not just the statutes institution, of Senate committees, and sionmaking and that their experiences Congress writes, but also the precedent of individual Senators. would help inform them and help pro- and interpretations of the courts that For the past 34 years, the Senate has vide that wisdom. Judge Sotomayor’s make up the law. We have a strong been fortunate, perhaps I should say we critics have ignored her modesty in not common law tradition in that regard. have been blessed, to have Dr. Richard claiming to be perfect, but rather in as- And we have a powerful equitable tra- Baker as the Senate Historian. Unfor- piring to the greatest wisdom and fair- dition that ensures that fairness and tunately for us, he is now leaving his ness she can achieve. justice are done. position as Senate Historian, so I must These critics also miss that Judge We need judges who appreciate when say farewell. Sotomayor was pointing out a path to and how to use their equitable powers. This is a most reluctant and sad fare- greater fairness and fidelity to law by Judges who follow the law are empow- well. While I am pleased that Dr. Baker acknowledging that despite the aspira- ered to enjoin illegal behavior, as the will now have the time and oppor- tion she shares with other judges, there Supreme Court did in its historic series tunity to pursue other endeavors, such are imperfections of human judging. By of orders enjoining the States and oth- as spending more time with his wife acknowledging rather than ignoring ers from segregating schools on the and other family members, as well as

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