The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“SOTOMAYOR NOMINATION” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S8645-S8647 on Aug. 3, 2009.
The publication is reproduced in full below:
SOTOMAYOR NOMINATION
Mr. McCAIN. Mr. President, it is with great respect for Judge Sotomayor's qualifications that I come to the floor today to discuss her nomination to the U.S. Supreme Court. There is no doubt that Judge Sotomayor has the professional background and qualifications that one hopes for in a Supreme Court nominee. As we all know, she is a former prosecutor, served as an attorney in private practice, and spent 12 years as an appellate court judge. She is an immensely qualified candidate. And, obviously, Judge Sotomayor's life story is inspiring and compelling.
As a child of Puerto Rican parents who did not speak English upon their arrival in New York, Judge Sotomayor took it upon herself to learn English and became an outstanding student. She graduated cum laude from Princeton University and later from Yale Law School. Judge Sotomayor herself stated that she is ``an ordinary person who has been blessed with extraordinary opportunities and experiences.''
However, an excellent resume and an inspiring life story are not enough to qualify one for a lifetime of service on the Supreme Court. Those who suggest otherwise need to be reminded of Miguel Estrada. Mr. Estrada also was a supremely qualified candidate, and he, too, has an incredible life story. Miguel Estrada actually emigrated to the United States from Honduras as a teenager, understanding very little English. Yet he managed to graduate from Columbia University and Harvard Law School magna cum laude before serving his country as a prosecutor and a lawyer at the Department of Justice. Later, he found success as a lawyer in private practice. However, Miguel Estrada, in spite of his qualifications and remarkable background, in spite of the fact that millions of Latinos would have taken great pride in his confirmation, was filibustered by the Democrats seven times--most recently in 2003--
because many Democrats disagreed with Mr. Estrada's judicial philosophy. This was the first filibuster ever to be successfully used against a court of appeals nominee.
I supported Mr. Estrada's nomination to the DC Circuit Court of Appeals, not because of his inspiring life story or impeccable qualifications but because his judicial philosophy was one of restraint. He was explicit in his writings and responses to the Senate Judiciary Committee that he would not seek to legislate from the bench.
In 1987, I had my first opportunity to provide ``advice and consent'' on a Supreme Court nominee. At that time, I stated that the qualifications I believed were essential for evaluating a nominee for the bench included integrity, character, legal competence and ability, experience, and philosophy and judicial temperament.
When I spoke of philosophy and judicial temperament, it is specifically how one seeks to interpret the law while serving on the bench. I believe a judge should seek to uphold all actions of Congress and State legislatures, unless they clearly violate a specific section of the Constitution, and refrain from interpreting the law in a manner that creates law. While I believe Judge Sotomayor has many of these qualifications I outlined in 1987, I do not believe she shares my belief in judicial restraint.
When the Senate was considering Judge Sotomayor's nomination to the Second Circuit in 1998, I reviewed her decisions and her academic writings. Her writings demonstrated that she does not subscribe to the philosophy that Federal judges should respect the limited nature of the judicial power under our Constitution. Judges who stray beyond their constitutional role believe judges somehow have a greater insight into the meaning of the broad principles of our Constitution than representatives who are elected by the people. These activist judges assume the Judiciary is a superlegislature of moral philosophers.
I know of no more profoundly antidemocratic attitude than that expressed by those who want judges to discover and enforce the ever-
changing boundaries of a so-called ``living constitution.'' It demonstrates a lack of respect for the popular will that is at fundamental odds of our republican system of government. Regardless of one's success in academics and government service, an individual who does not appreciate the commonsense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench.
Although she attempted to walk back from her long public record of judicial activism during her confirmation hearings, Judge Sotomayor cannot change her record. In a 1996 article in the Suffolk University Law Review, she stated:
A given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.
This is exactly the view I disagree with. As a district court judge, her decisions too often strayed beyond legal norms. Several times this resulted in her decisions being overturned by the Second Circuit. She was reversed due to her reliance on foreign law rather than U.S. law. She was reversed because the Second Circuit found she exceeded her jurisdiction in deciding a case involving a State law claim. She was reversed for trying to impose a settlement in a dispute between businesses, and she was reversed for unnecessarily limiting the intellectual property rights of free-lance authors.
These are but a few examples that led me to vote against her nomination to the Second Circuit in 1998 because of her troubling record of being an activist judge who strayed beyond the rule of law. For this reason, I closely followed her confirmation hearing last month. During the hearing, she clearly stated, ``As a judge, I don't make law.''
While I applaud this statement, it does not reflect her record. As an appellate court judge, Judge Sotomayor has been overturned by the Supreme Court six times. In several of the reversals of Judge Sotomayor's Second Circuit opinions, the Supreme Court strongly criticized her decision and reasoning. In a seventh case, the Supreme Court vacated the ruling, noting that in her written opinion for the majority of the Second Circuit, Judge Sotomayor had ignored two prior Supreme Court decisions.
While I do not believe reversal by the Supreme Court is a disqualifying factor for being considered for the Federal bench, I do believe such cases must be studied in reviewing a nominee's record. Most recently, in 2008, the Supreme Court noted in an opinion overturning Judge Sotomayor that her decision ``flies in the face of the statutory language'' and chided the Second Circuit for extending a remedy that the court had ``consistently and repeatedly recognized for three decades forecloses such an extension here.''
Unfortunately, it appears from this case--Malesko v. Correctional Services Corp.--that Judge Sotomayor does not seek ``fidelity to the law'' as she pledged at her confirmation hearing. As legislators, we must enact laws. The courts must apply the law faithfully. The job of a judge is not to make law or ignore the law.
Further, in Lopez Torres v. N.Y. State Board of Education, the Supreme Court overturned Judge Sotomayor's decision that a State law allowing for the political parties to nominate State judges through a judicial district convention was unconstitutional because it did not give people, in her view, ``a fair shot.'' In overturning her decision, the Supreme Court took aim at her views on providing a ``fair shot'' to all interested persons, stating:
It is hardly a manageable constitutional question for judges--especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a ``fair shot'' at party nomination.
In her most recent and well-known reversal by the Supreme Court, the Court unanimously rejected Judge Sotomayor's reasoning and held that white firefighters who had passed a race neutral exam were eligible for promotion. Ricci v. DeStefano raised the bar considerably on overt discrimination against one racial group simply to undo the unintentionally racially skewed results of otherwise fair and objective employment procedures. Again, this case proves that Judge Sotomayor does not faithfully apply the law we legislators enact.
Again and again, Judge Sotomayor seeks to amend the law to fit the circumstances of the case, thereby substituting herself in the role of a legislator. Our Constitution is very clear in its delineation and disbursement of power. It solely tasks the Congress with creating law. It also clearly defines the appropriate role of the courts to ``extend to all Cases in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties.'' To protect the equal, but separate roles of all three branches of government, I cannot support activist judges that seek to legislate from the bench. I have not supported such nominees in the past, and I cannot support such a nominee to the highest court in the land.
When the people of Arizona sent me to Washington, I took an oath. I swore to uphold the Constitution. For millions of Americans, it is clear what the Constitution means. The Constitution protects an individual's right to keep and bear arms to protect himself, his home, and his family. The Constitution protects our right to protest our government, speak freely and practice our religious beliefs.
The American people will be watching this week when the Senate votes on Judge Sotomayor's nomination. She is a judge who has foresworn judicial activism in her confirmation hearings, but who has a long record of it prior to 2009. And should she engage in activist decisions that overturn the considered constitutional judgments of millions of Americans, if she uses her lifetime appointment on the bench as a perch to remake law in her own image of justice, I expect that Americans will hold us Senators accountable.
Judicial activism demonstrates a lack of respect for the popular will that is at fundamental odds with our republican system of government. And, as I stated earlier, regardless of one's success in academics and in government service, an individual who does not appreciate the common sense limitations on judicial power in our democratic system of government ultimately lacks a key qualification for a lifetime appointment to the bench. For this reason, and no other, I am unable to support Judge Sotomayor's nomination.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Republican leader is recognized.
Mr. McCONNELL. Mr. President, before I address the matter I came to the Senate floor to address today, I congratulate the Senator from Arizona for his thoughtful description of the process by which he has made a decision on the extraordinarily important issue we will have before the Senate later this week; that is, the confirmation of Judge Sotomayor for the Supreme Court. PERSONAL COMPUTER\J\079060-A03AU6-003-
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