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“SOTOMAYOR NOMINATION” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S6907-S6911 on June 23, 2009.
The publication is reproduced in full below:
SOTOMAYOR NOMINATION
Mr. McCONNELL. Madam President, this morning I would like to turn my attention to the nomination of Judge Sonia Sotomayor to the Supreme Court and more specifically to the so-called empathy standard that President Obama employed in selecting her for the highest Court in the land.
The President has said repeatedly that his criterion for Federal judges is their ability to empathize with specific groups. He said it as a Senator, as a candidate for President, and again as President. I think we can take the President at his word about wanting a judge who exhibits this trait on the bench. Based on a review of Judge Sotomayor's record, it is becoming clear to many that this is a trait he has found in this particular nominee.
Judge Sotomayor's writings offer a window into what she believes having empathy for certain groups means when it comes to judging, and I believe once Americans come to appreciate the real-world consequences of this view, they will find the empathy standard extremely troubling as a criterion for selecting men and women for the Federal bench.
A review of Judge Sotomayor's writings and rulings illustrates the point. Judge Sotomayor's 2002 article in the Berkeley La Raza Law Journal has received a good deal of attention already for her troubling assertion that her gender and ethnicity would enable her to reach a better result than a man of different ethnicity. Her advocates say her assertion was inartful, that it was taken out of context. We have since learned, however, that she has repeatedly made this or similar assertions.
Other comments Judge Sotomayor made in the same Law Review article underscore rather than alleviate concerns with this particular approach to judging. She questioned the principle that judges should be neutral, and she said the principle of impartiality is a mere aspiration that she is skeptical judges can achieve in all or even in most cases--or even in most cases. I find it extremely troubling that Judge Sotomayor would question whether judges have the capacity to be neutral ``even in most cases.''
There is more. A few years after the publication of this particular Law Review article, Judge Sotomayor said the ``Court of Appeals is where policy is made.'' Some might excuse this comment as an off-the-
cuff remark. Yet it is also arguable that it reflects a deeply held view about the role of a judge--a view I believe most Americans would find very worrisome.
I would like to talk today about one of Judge Sotomayor's cases that the Supreme Court is currently reviewing. In looking at how she handled it, I am concerned that some of her own personal preferences and beliefs about policy may have influenced her decision.
For more than a decade, Judge Sotomayor was a leader in the Puerto Rican Legal Defense and Education Fund. In this capacity, she was an advocate for many causes, such as eliminating the death penalty. She was responsible for monitoring all litigation the group filed and was described as an ardent supporter of its legal efforts. It has been reported that her involvement in these projects stood out and that she frequently met with the legal staff to review the status of cases.
One of the group's most important projects was filing lawsuits against the city of New York based on its use of civil service exams. Judge Sotomayor, in fact, has been credited with helping develop the group's policy of challenging those exams.
In one of these cases, the group sued the New York City Police Department on the grounds that its test for promotion discriminated against certain groups. The suit alleged that too many Caucasian officers were doing well on the exam and not enough Hispanic and African-American officers were performing as well. The city settled a lawsuit by promoting some African Americans and Hispanics who had not passed the test, while passing over some White officers who had.
Some of these White officers turned around and sued the city. They alleged that even though they performed well on the exam, the city discriminated against them based on race under the settlement agreement and refused to promote them because of quotas. Their case reached the Supreme Court with the High Court splitting 4 to 4, which allowed the settlement to stand.
More recently, another group of public safety officers made a similar claim. A group of mostly White New Haven, CT, firefighters performed well on a standardized test which denied promotions for lieutenant and for captain. Other racial and ethnic groups passed the test, too, but their scores were not as high as this group of mostly White firefighters. So under this standardized test, individuals from these other groups would not have been promoted. To avoid this result, the city threw out the test and announced that no one who took it would be eligible for promotion, regardless of how well they performed. The firefighters who scored highly sued the city under Federal law on the grounds of employment discrimination. The trial court ruled against them on summary judgment. When their case reached the Second Circuit, Judge Sotomayor sat on the panel that decided it.
It was, and is, a major case. As I mentioned, the Supreme Court has taken that case, and its decision is expected soon. The Second Circuit recognized it was a major case too. Amicus briefs were submitted. The court allotted extra time for oral argument. But unlike the trial judge who rendered a 48-page opinion, Judge Sotomayor's panel dismissed the firefighters' appeal in just a few sentences. So not only did Judge Sotomayor's panel dismiss the firefighters' claims, thereby depriving them of a trial on the merits, it didn't even explain why they shouldn't have their day in court on their very significant claims.
I don't believe a judge should rule based on empathy, personal preferences, or political beliefs, but if any case cried out for empathy--if any case cried out for empathy--it would be this one. The plaintiff in that case, Frank Ricci, has dyslexia. As a result, he had to study extra hard for the test--up to 13 hours each day. To do so, he had to give up his second job, while at the same time spending $1,000 to buy textbooks and to pay someone to record those textbooks on tape so he could overcome his disability. His hard work paid off. Of 77 applicants for 8 slots, he had the sixth best score. But despite his hard work and high performance, the city deprived him of a promotion he had clearly earned.
Is this what the President means by ``empathy''--where he says he wants judges to empathize with certain groups but, implicitly, not with others? If so, what if you are not in one of those groups? What if you are Frank Ricci?
This is not a partisan issue. It is not just conservatives or Republicans who have criticized Judge Sotomayor's handling of the Ricci case. Self-described Democrats and political independents have done so as well.
President Clinton's appointee to the Second Circuit and Judge Sotomayor's colleague, Jose Cabranes, has criticized the handling of the case. He wrote a stinging dissent, terming the handling of the case
``perfunctory'' and saying that the way her panel handled the case did a disservice to the weighty issues involved.
Washington Post columnist Richard Cohen was similarly offended by the way the matter was handled. Last month, before the President made his nomination, Mr. Cohen concluded his piece on the subject as follows:
Ricci is not just a legal case but a man who has been deprived of the pursuit of happiness on account of his race. Obama's Supreme Court nominee ought to be able to look the New Haven fireman in the eye and tell him whether he has been treated fairly or not. There's a litmus test for you.
Legal journalist Stuart Taylor, with the National Journal, has been highly critical of how the case was handled, calling it peculiar.
Even the Obama Justice Department has weighed in. It filed a brief in the Supreme Court arguing that Judge Sotomayor's panel was wrong to simply dismiss the case.
So it is an admirable quality to be a zealous advocate for your clients and the causes in which you believe. But judges are supposed to be passionate advocates for the evenhanded reading and fair application of the law, not their own policies and preferences. In reviewing the Ricci case, I am concerned Judge Sotomayor may have lost sight of that.
As we consider this nomination, I will continue to examine her record to see if personal or political views have influenced her judgment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SESSIONS. Madam President, I thank Senator McConnell for his thoughtful comments. He is a former member of the Judiciary Committee, a lawyer who has studied these issues and cares about them deeply, and I value his comments. I do think that, as Senator McConnell knows, and while he is here, once a nominee achieves the Supreme Court, they do have a lifetime appointment and these values and preferences and principles on which they operate go with them. So it is up to us, I think my colleague would agree, to make sure the values and principles they bring to the Supreme Court would be consistent with the rule of law. So I appreciate the Senator's comments.
Mr. McCONNELL. If the Senator from Alabama will yield.
Mr. SESSIONS. I will yield.
Mr. McCONNELL. I commend Senator Sessions for his outstanding leadership on this nomination and his insistence that we be able to have enough time to do the job--to read the cases, read the Law Review articles, and to get ready for a meaningful hearing for one of the most important jobs in America. I think he has done a superb job, and I thank him for his efforts.
Mr. SESSIONS. I thank the Senator. I would note that there are only nine legislative days between now and the time the hearing starts, so we are definitely in a position where it is going to be difficult to be as prepared as we would like to be when this hearing starts. We still don't have some of the materials we need.
My staff and I have been working hard to survey the writings and records of Judge Sotomayor.
Certainly, the constitutional duty of the Senate to consent to the President's nomination is a very serious one. In recent years, we have seen judicial opinions that seem more attuned to the judge's personal preferences than to the law, and it has caused quite a bit of heartburn throughout the country. We have seen judges who have failed to understand that their role, while very important, is a limited one. The judge's role is not policy, politics, ethnicity, feelings, religion, or personal preference because whatever those things are, they are not law, and first and foremost a judge personifies law. That is why lawyers and judges, during court sessions--and I practiced hard in Federal court for all of 15 years, so I have been in court a lot--when they go to court, they do not say even the judge's name and usually don't even say ``judge.'' They refer to the judge as ``the Court.'' They say, ``If the Court please, I would like to show the witness a statement,'' or a judge may write, ``This Court has held,'' and it may be what he has written himself, or she. All of this is to depersonalize, to objectify the process, to clearly establish that the deciding entity has put on a robe--a blindfold, according to our image--and is objective, honest, fair, and will not allow personal feelings or biases to enter into the process.
So the confirmation process rightly should require careful evaluation to ensure that a nominee--even one who has as fine a career of experience as Judge Sotomayor--meets all the qualities required of one who would be situated on the highest Court. As this process unfolds, it is important that the Senate conduct its evaluation in a way that is honest and fair and remember that a nominee often is limited in his or her ability to answer complaints against them.
So the time is rapidly approaching for the hearings--only nine legislative days between now and July 13--and there are still many records, documents, and videos not produced that are important to this process.
My colleagues and friends are asking: What have you found? What evaluations have you formed? What are your preliminary thoughts? And I have been somewhat reluctant to discuss these matters at this point in time, as we continue to review the record. In truth, the confirmation process certainly must be conducted with integrity and care, but it is not a judicial process, it is a political process. The Senate is a political, legislative body, not a judicial body, and it works its will. Its Members must decide issues based on what each Member may conclude is the right standard or the right beliefs.
I have certainly not formed hard opinions on this nominee, but I have developed some observations and have found some relevant facts and have some questions and concerns. It is clear to me that several matters and cases must be carefully examined because they could reveal an approach to judging that is not acceptable for a nominee, in my opinion. I see no need not to raise those concerns now. Discussing them openly can help our Senate colleagues get a better idea of what the issues are, and the public, and the nominee can see what the questions are now, before the hearings start. Unfortunately, the record we have is incomplete in key respects, and it makes it difficult for us to prepare.
As I review the record, I am looking to try to find out whether this nominee understands the proper role of a judge, one who is not looking to impose personal preferences from the bench. Frankly, I have to say--
to follow up on Senator McConnell's remarks--I don't think I look for the same qualities in a judge that the person who nominated her does--
President Obama. He says he wants someone who will use empathy--empathy to certain groups to decide cases. That may sound nice, but empathy toward one is prejudice toward the other, is it not? There are always litigants on the other side, and they deserve to have their cases decided on the law. And whatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath. This is what a judge declares when they take the office:
I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.
So I think that is the impartial ideal. That is the ideal of the lady of justice with the scales and the blindfold, which we have always believed in in this country and which has been the cornerstone of American jurisprudence.
So what I have seen thus far in Judge Sotomayor's record--and presumably some of her views are the reason President Obama selected her--cause me concern that the nominee will look outside the law and the evidence in judging and that her policy preferences could influence her decisionmaking. Her speeches and writings outside the court are certainly of concern, some of which Senator McConnell mentioned.
I wish to discuss some other areas that I think are significant also. She has had extensive work with the Puerto Rican Legal Defense and Education Fund and been a supporter, presumably, of what it stands for. So that is one of the matters I will discuss a bit here. Also, I will discuss her decision to allow felons, even those convicted and in jail, the right to vote, overruling a long-established State law. Some other matters I will discuss include the New Haven firefighters case.
Looking at the long association the nominee has had with the Puerto Rican Legal Defense and Education Fund--an organization that I have to say, I believe, is clearly outside the mainstream of the American approach to matters--this is a group that has taken some very shocking positions with respect to terrorism. When New York Mayor David Dinkins criticized members of the radical Puerto Rican nationalist group and called them ``assassins'' because they had shot at Members of Congress and been involved in, I guess, other violence, the fund, of which judge Sotomayor was a part, criticized the mayor and said they were not assassins and said that the comments were ``insensitive.''
The President of the organization continued, explaining that for many people in Puerto Rico, these men were fighters for freedom and justice.
I wonder if she agreed with that statement and that the statements of the mayor of New York were insensitive. These Puerto Rican nationalists reconstituted into groups such as the FALN, which we have recently had occasion to discuss in depth. The FALN itself was responsible for more than 100 violent attacks resulting in at least 6 deaths. I find it ironic that once again we find ourselves discussing these murderous members of FALN, when not long ago we were considering whether to confirm Attorney General Eric Holder, who was advocating pardoning them and President Clinton did. Now we find ourselves wondering about this nominee to the Court and what her views are on these matters and how her mind works as she thinks about these kinds of issues.
We do not have enough information, unfortunately, to assess these concerns effectively. We requested information relating to Judge Sotomayor's involvement with the fund, a typical question of all nominees but critically important for a Supreme Court nominee. But we have not received information. Indeed, we have received 9 documents totaling fewer than 30 pages relating to her 12 years with the organization. So it is not possible for us to make an informed decision at this point on her relationship with an organization that seems to be outside the mainstream.
What we know, basically, is from publicly available information, and what has been provided this committee, is that this is a group that has, time and again, taken extreme positions on vitally important issues such as abortion. In one brief, which was in support of a rehearing petition in the U.S. Supreme Court, a brief to the Supreme Court, the Fund criticized the Supreme Court's decision in two cases that both the State and Federal Government should restrict the use of public funds for abortion--the question of public funding of abortion.
Incredibly, the Fund joined other groups in comparing these types of funding restrictions to slavery, stating:
Just as Dred Scott v. Sanford refused citizenship to Black people, these opinions strip the poor of meaningful citizenship under the fundamental law.
In their view, the equal protection clause of the U.S. Constitution prohibited restrictions on either Federal or State Government provision of funding abortions.
I think this is an indefensible position. We do not know how much Judge Sotomayor had to do with developing these positions of the Fund--
but certainly she was an officer of it, involved in the litigation committee during most of this time--because we do not have the information we requested.
We do know the Fund and Judge Sotomayor opposed reinstatement of the death penalty in New York based not on the law but on what they found to be the inhuman psychological burden it places on criminals, based on world opinion, and based on evident racism in our society. What does this mean about how Judge Sotomayor would approach death penalty cases? I think she has affirmed death penalty cases, but on the Supreme Court, there is a different ability to redefine cases. These personal views of hers could very well affect that.
Recently, five Justices of the Supreme Court decided, based in part on their review of rulings of courts of foreign countries, that the Constitution says the United States cannot execute a violent criminal if he is 17 years and 364 days old when he willfully, premeditatedly kills someone. They say the Constitution says the State that has a law to that effect cannot do it.
Looking to ``evolving standards of decency that mark the progress of a maturing society''--this is what the Court said, as they set about their duty to define the U.S. Constitution; this is five Members of the Supreme Court, with four strong dissents: looking to ``evolving standards of decency that mark the progress of a maturing society,'' we conclude the death penalty in this case violated the eighth amendment.
There are at least six or eight references in the Constitution to a death penalty. If States don't believe 18-year-olds should be executed, or 17, they should prohibit it and many States do. But it is not answered by the Constitution. But five judges did not like it. They consulted with world opinion and what they considered to be evolving standards of decency and said the Constitution prohibited the imposition of a death penalty in this case, when it had never been considered to be so since the founding of our Republic. I don't think that is a principled approach to jurisprudence. That is the kind of thing I am worried about if we had another judge who will think like that on the bench.
I will ask about some other cases, too, that give me pause. For centuries States and colonies, even before we became a nation, have concluded that individuals who commit serious crimes, felonies, forfeit their right to vote, particularly while they are in jail. It is a choice that States can make and have made between 1776 and 1821. Eleven State constitutions contemplated preventing felons from voting. New York passed its first felon disenfranchisement law in 1821. When the 14th amendment was adopted in 1868, 29 States had such provisions. By 2002, all States except Maine and Vermont disenfranchised felons. For years, these types of laws have been upheld by the courts against a range of challenges. But in Hayden v. Pataki, in 2006, Justice Sotomayor stated her belief that these types of laws violate the Voting Rights Act of 1965, even though that act makes no reference to these longstanding and common State laws and even though they are specifically referenced in the fourteenth amendment to the Constitution itself.
In her view, with analysis of a few short paragraphs only, the New York law was found--or she found--she concluded that the New York law was ``on account of race,'' and therefore it violated the Voting Rights Act.
It was ``on account of race'' because of its impact and nothing more. Statistically, it seems that in New York, as a percentage of the population, more minorities are in jail than nonminorities. Therefore, it was concluded that this act was unconstitutional. I think this is a bridge too far. It would mean that State laws setting a voting age of 18 would also violate Federal law because, within the society or in most of our country, minorities would have more children under 18 so that would have a disparate impact on them.
I do not think this can be the law, as a majority of the colleagues on that Court explained, and did not accept her logic. Actually, her opinion was not upheld.
I look forward to asking her about that. I am aware that Judge Sotomayor would say she is acting as a strict constructionist by simply applying literally the 40-year-old Voting Rights Act of 1965. I do not think so. I remember when Miguel Estrada, that brilliant Hispanic lawyer whom President Bush nominated to the appellate courts and who was defeated after we had seven attempts to shut off a filibuster on the floor of the Senate but could never do so, said during his hearings that he didn't like the term ``strict construction.'' He preferred the term ``fair construction.''
He was correct. So the question is, Is this a fair construction of the Voting Rights Act, that it would overturn these long-established laws when no such thing was considered in the debate on the legislation? That historic laws, which limit felons voting, are to be wiped out, even allowing felons still in jail to vote? I do not think so and neither did most of the judges who have heard these cases.
With regard to the New Haven firefighters case, I will say we will be looking into that case in some length. Stuart Taylor did a very fine analysis of it when he was writing, I believe, at the National Journal. He recognized that no one ever found that the examination these firefighters took was invalid or unfair. As he has explained, if the
``belated, weak, and speculative criticisms--obviously tailored to impugn the outcome of the tests--are sufficient to disprove an exam's validity or fairness, no test will ever withstand a disparate-impact lawsuit. That may or may not be Judge Sotomayor's objective. But it cannot be the law,'' says Mr. Stuart Taylor in his thoughtful piece. The firefighters, you see, were told there was going to be a test that would determine promotion, that it would determine eligibility for promotion. The tests were given at the time stated and the rules had been set forth. But the rules were changed and promotions did not occur because the Sotomayor court, in a perfunctory decision, concluded that too many minorities did not pass the test, and no finding was made that the test was unfair. We will be looking at that and quite a number of other matters as we go forward.
I will be talking about the question of foreign law and the question of this nominee's commitment to the second amendment, the right to keep and bear arms. The Constitution says the right to keep and bear arms shall not be infringed. We will talk about that and some other matters because, once on the Court, each Justice has one vote. It only takes five votes to declare what the Constitution says. That is an awesome power and the judges must show restraint, they must respect the legislative body, they must understand that world opinion has no role in how to define the U.S. Constitution, for heaven's sake. Neither does foreign law. How can that help us interpret the meaning of words passed by an American legislature?
Oftentimes, world opinion is defined in no objective way, just how the judge might feel world opinion is. I am not sure they conduct a world poll, or what court's law do they examine around the world to help that influence their opinion on an American case?
This is a dangerous philosophy is all I am saying. It is a very serious debate. There are many in law schools who have a different view: there is an intellectual case out there for an activist judiciary or a judiciary that should not be tethered to dictionary definitions of words. Judges should be willing and bold and take steps to advance the law they would set and to protect this or that group that is favored at this or that time.
I think that is dangerous. I think it is contrary to our heritage of law. I am not in favor of that approach to it.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. MENENDEZ. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MENENDEZ. Madam President, today on the floor some of my colleagues have begun their attacks on President Obama's historic and incredibly qualified nominee to the Supreme Court, Judge Sonia Sotomayor. They clearly decided, for ideological reasons, that they were going to oppose whoever President Obama appointed before the hearings even started. We have heard people try to attach a lot of labels to Judge Sotomayor over the past few weeks, but it has become clearer and clearer as we look hard at Judge Sotomayor's record and vast experience that attacking this nominee is like throwing rocks at a library. It is uncalled for and it doesn't accomplish anything. Her opponents are grasping at straws, because it turns out we have before us one of the most qualified, exceptional nominees to come before this Senate in recent history.
Let there be no doubt: Sonia Sotomayor's nomination to be a Justice to the Supreme Court is a proud moment for America. It is proof that the American dream is in reach for everyone willing to work hard, play by the rules, and give back to their communities, regardless of their ethnicity, gender, or socioeconomic background. It is further proof of the deep roots the Hispanic community has in this country.
But let's be clear: We get to be proud of this nominee because she is exceptionally qualified. We get to be proud because of her vast knowledge of the law, her practical experience fighting crime, and her proven record of dedication to equal justice under the law. Those are the reasons we are proud. Those are the reasons she should be confirmed without delay.
We should not be hearing any suggestions that we need infinitely more time to discuss this nomination. It should move as promptly as the nomination of John Roberts, and that is exactly what we are going to do.
A little while ago at a press conference, we heard from prominent legal and law enforcement organizations that explained how the people who have actually seen her work know her best: as an exemplary, fair, and highly qualified judge. They came from across our country, from Florida to Texas, Nebraska, and my home State of New Jersey. They shed light on how important her work has been in the fight against crime, how her work as a prosecutor put the ``Tarzan murderer'' behind bars, how as a judge she upheld the convictions of drug dealers, sexual predators, and other violent criminals. And they made it clear how much they admire her strong respect for the liberties and protections granted by our Constitution, including the first amendment rights of people she strongly disagreed with.
Judge Sotomayor's credentials are undeniable. After graduating at the top of her class at Princeton, she became an editor of the law journal at Yale Law School, which many consider to be the Nation's best. She went to work in the Manhattan district attorney's office, prosecuting crimes from murder to child abuse to fraud, winning convictions all along the way.
A Republican President, George H.W. Bush, appointed her to the U.S. District Court in New York, and a Democrat, Bill Clinton, appointed her to the U.S. Court of Appeals. She was confirmed by a Democratic majority Senate and then a Republican majority Senate. Her record as a judge is as clear and publicly accessible as any recent nominee and clearly shows modesty and restraint on the bench.
She would bring more judicial experience to the Supreme Court than any Justice in 70 years, and more Federal judicial experience than anyone in the past century. Her record and her adherence to precedent leave no doubt whatsoever that she respects the Constitution and the rule of law.
Judge Sotomayor's record has made it clear that she believes what determines a case is not her personal preferences but the law. Her hundreds of decisions prove very conclusively that she looks at what the law says, she looks at what Congress has said, and she looks above all at what precedent says. She is meticulous about looking at the facts and then decides the outcome in accordance with the Constitution.
On top of that, Judge Sotomayor's personal background is rich with the joys and hardships that millions of American families share. Her record is proof that someone can be both an impartial arbiter of the law and still recognize how her decisions will affect people's everyday lives.
I think it says something that the worst her ideological opponents can accuse her of is being able to understand the perspective of a wide range of people whose cases will come before her.
Judge Sotomayor deserves nothing less than a prompt hearing and a prompt confirmation. As the process moves forward, I plan to come back to the floor as often as is necessary to rebut any baseless attacks leveled at this judge.
It fills me with pride to have the opportunity to support President Obama's groundbreaking nominee, someone who is clearly the right person for a seat on the highest Court of the land.
It is an enormous joy to be reminded once again that in the United States of America, if you work hard, play by the rules, and give back to your community, anything is possible.
Madam President, with that, I yield the floor.
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