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.