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“JUDICIAL CONFIRMATIONS” mentioning the U.S. Dept. of Justice was published in the Senate section on pages S6673-S6677 on June 17, 2009.
The publication is reproduced in full below:
JUDICIAL CONFIRMATIONS
Mr. SPECTER. Mr. President, I sought recognition to comment on the forthcoming proceedings on the confirmation of Judge Sotomayor for the Supreme Court of the United States.
Judge Sotomayor comes to this position with an extraordinary record. Her academic standing at Princeton was summa cum laude, a graduate of the Yale Law School where she was a member of the Yale Law Journal Board of Editors.
Then in her practice, she was an assistant district attorney in Manhattan, a position which gives very extensive experience in many facets of the law, something I know in my own experience years ago as an assistant district attorney.
She was in private practice with a very prestigious New York law firm, then served on the U.S. District Court, and more recently on the Court of Appeals for the Second Circuit.
The hearings will give Judge Sotomayor an opportunity to respond to a number of issues which have been raised about her background. I think Chairman Leahy was correct in moving the hearing dates so that the confirmation process could be concluded in time for Judge Sotomayor, if confirmed, to sit with the Court during September when the Court will decide what cases it will hear.
A great deal of the important work of the Supreme Court of the United States is decided on what cases they decide not to hear. And perhaps that in some ways is as important as the cases they do hear, the cases they do decide. It is during that period of time when the decision is made of a grant of certiorari with four Justices deciding which cases to hear where the presence of a new Justice could be very important.
Confirmation hearings at an early stage will give Judge Sotomayor an opportunity to respond to many questions which are highly publicized. It is a very noteworthy matter when a nominee is being considered for the Supreme Court. There is a lot of publicity, and some of it is controversial.
As a matter of fairness, the earlier a nominee can have an opportunity to respond to those issues--a question has been raised about her decision on the New Haven firefighters case. Well, the nuances of disparate impact do not lend themselves too well to brief newspaper articles nor sound bites on the talk shows. They are made for Supreme Court hearings.
Her decision on property rights following the Kelo decision has been subjected to certain comment. There again, the nuances require a hearing. Or her statement about ``a wise Latina woman'' has been widely commented upon. And there again, she ought to have an opportunity to speak to those issues.
There have been some questions raised about her decisions under the Second Amendment, membership in the Belizean Grove, and a lot of speculation. So let's bring on the hearings where there will be an opportunity for Judge Sotomayor to present her views.
Based on what I have studied in her opinions, an extensive meeting which I had with her, she is a powerful intellect and prospectively she is likely to be able to have good comments. But that is what the confirmation process is all about. So let's move forward on it to the July hearing dates so we can consider her nomination and she can have an opportunity to respond to those issues.
There have been contrary views about the value of confirmation hearings. There are some who say they have outlived their usefulness, pointing historically to the fact that prior to 1955 or thereabouts there were very few confirmation hearings, only when there was some extraordinary question.
In recent decades the confirmation hearings have been extensive. Having participated in some 11 of those confirmation hearings, it is my judgment that they are very worthwhile, from many points of view.
It presents an opportunity to have a public focus on the appropriate role of the Supreme Court, a lot of very major questions about the respective roles on the separation of powers between the courts and Congress, on fact finding, and on the record.
There are important questions on the relative authority of the executive versus the Court on the issues of detention, of habeas; important issues on the relative power of the Congress versus the executive, as exemplified by the conflict between the Foreign Intelligence Surveillance Act, and the powers of the President under article II of the Constitution as Commander in Chief.
There are also hearings where it is a public focus on a civics lesson as to what the Court does, and public attention is focused on the Court. My preference would be, as I have noted on legislation I have introduced, which has been passed out of the Judiciary Committee in prior congresses, to have the proceedings of the Supreme Court televised under certain circumstances. That has not yet been approved. But I think the day will come when the Supreme Court hearings will be televised. I think they could be televised without having showboating, and real insight by the public as to what happens at the Supreme Court of the United States, just as hearings of the House of Representatives and the Senate are televised.
There are a lot of quorum calls, but there are debates that go on here for the public to see, where very major matters of public policy are decided.
At least the confirmation hearings do bring the role of the Court into focused hearings, I think, to a very beneficial effect.
We had the hearings on Judge Bork widely commented upon, very extensive hearings on his writings, his view of original intent. There was an opportunity for the American people and the scholars to see what was involved.
There has grown a myth that in that proceeding, the nominee was
``Borked,'' turning his name into a verb. My own view is that is not so; that the decision made in rejecting the confirmation of Judge Bork turned on the record, turned on what happened in the Judiciary Committee proceedings. When we took a look at original intent, it was way outside the mainstream of constitutional law, way outside the constitutional continuum. If we look to what Congress intended in 1868, when the equal protection clause was passed in the 14th amendment in this Chamber, the galleries were segregated. African Americans were on one side and Caucasians were on another. So the intent of Senators certainly could not have been that equal protection meant integration. But after Brown v. Board of Education in 1954, there was no doubt equal protection did mean integration.
The confirmation proceedings of Chief Justice Rehnquist were very informative. Chief Justice Rehnquist had more than 30 votes cast against his nomination in 1986. The issue arose as to the adequacy of his answering questions as to the role of the Supreme Court contrasted with the role of Congress. Chief Justice Rehnquist had written an interesting article for the Harvard Law Record, back in 1959, when he was a young practicing attorney, criticizing the Senate for the confirmation hearings of Justice Whittaker, not asking probing questions about due process of law but only extolling Justice Whittaker's virtues because he represented both the State of Kansas and the State of Missouri, living in one State and practicing law in the other. When Chief Justice Rehnquist was asked questions about the authority of Congress to take away the jurisdiction of the Supreme Court, he answered, finally, that the Congress did not have the authority on first amendment issues but declined to answer about the fourth amendment, fifth, sixth or eighth or to answer a question as to why he would respond on the first amendment but not on others.
There are some issues which are so firmly established that they are outside the respected rule that we don't ask nominees to say how they will decide upon cases that might come before them. But where we deal with issues such as Marbury v. Madison or Brown v. Board of Education or the authority of the Congress to take away jurisdiction of the Supreme Court in derogation of Marbury v. Madison, there are questions which ought to be answered.
The confirmation hearings provide an opportunity to go into detail about the functioning of the Court. A few years ago, when the issue of judicial pay was before the Congress, a number of Senators were invited to confer with the Justices. It provided an opportunity for me to see the conference room. I had been a member of the bar of the Supreme Court, argued a few cases there but had never seen their conference room. Frankly, it was quite an eye-opener--a small room, plain table, modest chairs, very intimate, very austere, quite some insight as to how close the Justices are together. When we talk about diversity, how long it took to get an African American on the Court, Thurgood Marshall did not go to the Court until 1967. Justice Lewis Powell made a comment reportedly that just having Thurgood Marshall in the room made a difference in perspective. Surprising, perhaps scandalous, that it took until 1981 to have a woman on the Supreme Court. Now there have only been two. When I was asked for recommendations for the current vacancy, I recommended four women. To say that a woman's point of view is different and valuable is trite. When I was elected to the Senate in 1980, Senator Kastenbaum was the only woman in the Chamber. Senator Hawkins was elected that year. Now we have 16 and growing. It has been a very great addition and improvement to the deliberations here to have more women. Another woman on the Supreme Court would be a plus there, if Judge Sotomayor is confirmed.
Also, the diversity on being a Hispanic is important. We live in a very diverse society. When one sees that small Supreme Court Chamber, they can see the intimacy and can almost visualize the intellectual discussions and the powerhouses in that room and how the big cases are decided, with the Court having the last word on life and death, a woman's right to choose, medicinal issues of attempted suicide, the death penalty in capital cases, all the cutting edge issues of our society.
The confirmation proceeding of Judge Sotomayor will give us an opportunity to inquire into some very important issues on executive versus judicial authority, on the authority of the Court versus the Congress. Toward that end, I wrote a letter to Judge Sotomayor, dated June 15. I ask unanimous consent that this letter be printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER (Mr. Bennet). Without objection, it is so ordered.
(See exhibit 1.)
Mr. SPECTER. As I note in the opening paragraph, our so-called courtesy call lasted more than an hour. At that time, I commented to her that I would be writing on other subjects on which I intended to comment at her hearing. She responded she would be glad to have that advance notice. The issue I focus on in this letter involves the respective authority of the Congress contrasted with the Court on the establishment of a record to warrant legislation which Congress enacts. I noted I had written to Chief Justice Roberts in a similar vein back on August 8, 2005, in advance of his confirmation hearings. I take up in my letter to Judge Sotomayor the same issue I took up with Chief Justice Roberts; that is, decisions of the Supreme Court in invalidating congressional enactments, declaring them unconstitutional, because of what the Court says is an insufficient record.
I note the case of United States v. Morrison, which involved legislation to protect women against violence, where the Court was denigrating, disrespectful to Congress, where the Court said the congressional findings were rejected because of our ``method of reasoning,'' as if there is some unique quality which comes to the nominee at the time of confirmation in walking across the green between the hearing room and the Supreme Court chambers.
A dissent by Justice Souter noted that the Court's judgment was
``dependent upon a uniquely judicial conference,'' as if the competence of the Congress was to a lesser extent. Justice Souter commented, in disagreeing with Chief Justice Rehnquist, who said there was an insufficient record, that ``the mountain of data assembled by Congress included a record on gender bias from a task force of 21 States, eight separate reports by the Congress.''
There was a similar finding by the Supreme Court of the United States in the case of Alabama v. Garrett, where the Supreme Court decided there was an insufficient record to support the enactment of title I of the Americans with Disabilities Act, even though there had been task force hearings in every State attended by more than 30,000 people, including thousands who had experienced discrimination, with more than 300 examples of discrimination by State Governments. Notwithstanding that, the Supreme Court in Garrett said there was an insufficient record.
In dissent, Justice Scalia called the test of congruence and proportionality a flabby test, a test that was ``an invitation to judicial arbitrariness and policy-driven decisionmaking.''
When we look to a standard of congruence and proportionality, it is very vague. Sharp divergence from the standard that Justice Harlan articulated in Maryland v. Wirtz in 1968, whether there was a rational basis for the congressional decision. So that as Justice Scalia noted in his dissent in Tennessee v. lane, the standard of congruence and proportionality was flabby. Justice Scalia went on to say:
Worse still, it casts this Court in the role of Congress's task master. Under it the courts--and ultimately, this Court--must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy constitutional and proportional.
In the confirmation hearings of Chief Justice Roberts, he responded in a way very supportive of the role of Congress, where the Court should be deferential to the Congress. In response to a question by Senator DeWine, he said the Supreme Court ought to defer to congressional findings, and the answer will be in the Record with this letter.
In response to my questioning, Chief Justice Roberts said:
And I appreciate very much the difference in institutional competence between the judiciary and the Congress, when it comes to basic questions of fact finding, development of a record and also the authority to make the policy decisions about how to act on the basis of a particular record. It is not just disagreement over a record. It is a question of whose job it is to make a determination based on the record. As a judge, that you are beginning to transgress into the area of making a law is when you are in a position of reevaluating legislative findings, because that doesn't look like a judicial function.
There, the Chief Justice comes to grips with the dominant role of the Congress that ought to be deferred to and says, when the court takes over, it is judicial lawmaking, which is something which is generally recognized to be in an area which ought not to be transgressed.
``Transgression'' is Chief Justice Roberts' word, that it is up to Congress to make the laws and up to the Court to interpret them.
In a hearing on the Voting Rights Act on April 29, 2009, Northwest Austin Municipal Utility District v. Holder, on the issue of the sufficiency of the record, here we have 16,000 pages of testimony, 21 different hearings, 10 months of action. Congress, in 2006, reauthorized the Voting Rights Act. In listening to the Supreme Court argument and reading the record--you cannot draw any conclusions totally--but it looks very much as if the Court may be on the verge of finding the record insufficient.
Chief Justice Roberts had this to say in the course of the argument on the Voting Rights Act:
. . . one-twentieth of one percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to address the intentional discrimination under the Fifteenth Amendment.
That's like the old elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work. I mean, if you have 99.98 percent of those being precleared, why isn't that reaching too broadly?
We will all be watching very closely to see what the Supreme Court of the United States does in the voting rights case and especially the opinion of Chief Justice Roberts, who has testified so emphatically at his confirmation hearing as to the role of the Congress being dominant, and it was, as he put it: ``. . . as a judge that you may be beginning to transgress into the area of making a law . . . ''
So those are issues which I am going to be addressing to Judge Sotomayor in the course of the confirmation hearings. I am not going to ask her how she is going to decide a case. That is outside the bounds. But I think it is fair to inquire as to what is the standard. Is it the Justice Harlan standard of rational basis or is it a standard of congruent and proportional--a standard which is of recent vintage in the City of Boerne v. Flores case, and having been applied in cases where it is very difficult to understand the conclusions of the Court, if you take Tennessee v. Lane, where one article of the Americans with Disabilities Act was upheld and contrast it with the Alabama v. Garrett case, where it was stricken.
Justice Scalia, in the argument of the voting rights case, took issue with the Congress on a 98-to-0 decision, suggesting if it is 98 to 0, it must not have been too carefully thought through.
It reminds me of the 98-to-0 vote Justice Scalia got on his confirmation and the many unanimous decisions of the Supreme Court. I will ask to have printed in the Record a group of recent cases--10 or more--where Justice Scalia decided cases 9 to 0.
So if this legislative body--the Senate--votes 98 to 0 in favor of renewing the Voting Rights Act, relying upon the extensive record, which I have cited, that is not a sign of weakness. That is not a sign that the Senate does not know what it is doing with a 98-to-0 vote.
So the questions which I have posed for Judge Sotomayor are these:
First: Would you apply the Justice Harlan rational base standard or the congruent and proportionality standard?
Second: What are your views on Justice Scalia's characterization that the ``congruence and proportionality standard'' is a flabby test and an
``invitation to judicial arbitrariness and policy-driven decisionmaking,'' where Justice Scalia says that is the way for the courts to make law on a standard which is so vague?
Third: Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's ``method of reasoning''?
And fourth: Do you agree with the division of constitutional authority between Congress and the Supreme Court as articulated by Chief Justice Roberts in his responses, cited in this letter, to questions posed at his hearing by Senator DeWine and myself?
I do believe there will be an opportunity for very important issues to be presented to the nominee. Based on what I have seen of her, in reviewing her record, and the meeting I had with her--I have noted her excellent resume--I am looking forward to giving her an opportunity to answer the many questions that have been raised in the press, where she will have more of an opportunity than to have a sound bite but to give commentary on her record in support of her nomination.
I ask unanimous consent to have printed in the Record the material to which I referred.
There being no objection, the material was ordered to be printed in the Record, as follows:
Recent Unanimous Decisions With Opinions Authored by Justice Scalia
Republic of Iraq v. Beaty,--S.Ct.--, 2009 WL 1576569
(2009).
Virginia v. Moore, 128 S.Ct. 1598 (2008).
Beck v. Pace Intern. Union, 551 U.S. 96 (2007).
U.S. ex rel Goodman v. Georgia, 546 U.S. 151 (2006).
U.S. v. Grubbs, 547 U.S. 90 (2006).
Domino's Pizza, Inc. v. McDonald, 546 U.S. 470 (2006).
Merck KGAA v. Integra Lifesciences I, Ltd., 545 U.S. 193
(2005).
Devenpeck v. Alford, 543 U.S. 146 (2004).
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55
(2004).
Barnhart v. Thomas, 540 U.S. 20 (2003).
Pacificare Health Systems, Inc. v. Book, 538 U.S. 401
(2003).
Mr. SPECTER. I thank the Chair and yield the floor.
Exhibit 1
U.S. Senate,
Washington, DC, June 15, 2009.Hon. Sonia Sotomayor,The Department of Justice,Washington, DC.
Dear Judge Sotomayor: When we concluded our meeting which lasted more than an Hour, I commented that I would be writing to you on other subjects which I intended to cover at your hearing, and I appreciated your response that you would welcome such advance notice.
In the confirmation hearing for Chief Justice Roberts, there was considerable discussion about the adequacy of congressional fact finding to support legislation. This issue is again before the Supreme Court on the re-authorization of the Voting Rights Act where the legislation is challenged on the ground that there is an insufficient factual record. At our hearing, I would uphold like your views on what legal standards you would apply in evaluating the adequacy of a Congressional record. In the 1968 case Maryland v. Wirtz, Justice Harlan's rationale would uphold an act of Congress where the legislature had a rational basis for reaching a regulatory scheme. In later cases, the Court has moved to a
``congruence and proportionality standard.''.
In advance of the hearing for Chief Justice Roberts by letter dated August 8, 2005. I wrote him in part:
``members of Congress are irate about the Court's denigrating and, really, disrespectful statements about Congress's competence. In U.S. v. Morrison, Chief Justice Rehnquist, speaking for five members of the Court, rejected Congressional findings because of ``our method of reasoning''. As the dissent noted, the Court's judgment is
``dependent upon a uniquely judicial competence'' which implicitly criticizes a lesser quality of Congressional competence.
In Morrison, there was an extensive record on evidence establishing the factual basis for enactment of the Violence Against Women legislation. In dissent. Justice Souter noted .
. . the mountain of data assembled by Congress here showing the effects of violence against women on interstate commerce,'' and added:
``The record includes reports on gender bias from task forces in 21 states and we have the benefit of specific factual finding in eight separate reports issued by Congress and its committees over the long course leading to its enactment.''
In a subsequent letter to Chief Justice Roberts dated August 23, 2005, I wrote concerning Alabama v. Garrett where Title I of the Americans with Disabilities Act was based on task force field hearings in every state attended by more than 30,000 people including thousands who had experienced discrimination with roughly 300 examples of discrimination by state governments.
Notwithstanding those findings, the Garrett Court concluded in a five to four decision:
``The legislative record of the Americans with Disabilities Act, however, simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled.''
In another five to four decision, the Court in Lane v. Tennessee concluded Title II of the Americans with Disabilities Act met the ``congruence and proportionality standard''. There, Justice Scalia dissented attacking the
``congruence and proportionality standard'' calling it a
``flabby test'' and ``invitation to judicial arbitrariness and policy driven decision making'':
``Worse still, it casts this Court in the role of Congress's taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy constitutional and proportional. As a general matter, we are ill-advised to adopt or adhere to constitutional rules that bring us into conflict with a coequal branch of Government.''
During the confirmation hearing of Chief Justice Roberts, he testified extensively in favor of the Court's deferring to Congress on fact finding. In response to questions from Senator DeWine, he testified:
``. . . The reason that congressional fact finding and determination is important in these cases is because the courts recognize that they can't do that, Courts can't have, as you said, whatever it was, the 13 separate hearings before passing particular legislation. Courts--the Supreme Court can't sit and hear witness after witness after witness in a particular area and develop that kind of a record. Courts can't make the policy judgments about what type of legislation is necessary in light of the findings that are made''. . . `We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. So that is sort of the basis for the deference to the fact finding that is made. It's institutional competence. The courts don't have it. Congress does. It's constitutional authority. It's not our job. It is your job. So the defense to congressional findings in this area has a solid basis.''
In response to my questioning, Chief Justice Roberts said:
``And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact finding development of a record, and also the authority to make the policy decisions about how to act on the basic of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record' . . . as a judge that you may be beginning to transgress into the area of making a law is when you are in a position of re-evaluating legislative findings, because that doesn't look like a judicial function.''
The Supreme Court heard oral argument in Northwest Austin Municipal Utility District v. Holder on April 29, 2009 involving the sufficiency of the Congressional record on reauthorizing the Voting Rights Act. While too much cannot he read into comments by justices at oral argument, Chief Justice Roberts' statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing. Referring to the argument that ``. . . action under Section 5 has to be congruent and proportional to what it's trying to remedy,'' Justice Roberts said that:
``. . . one-twentieth of l percent of the submissions are not precleared. That, to me, suggests that they are sweeping far more broadly than they need to, to address the intentional discrimination under the Fifteenth Amendment.''
Chief Justice Roberts went to say:
``Well, that's like the old--you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. well, there are no elephants, so it must work. I mean if you have 99.98 percent of these being precleared, why isn't that reaching far too broadly.''
As a factual basis for the 2007 Voting rights Act, Congress heard from dozens of witnesses over ten months in 21 different hearings. Applying the approach from Chief Justice Roberts' confirmation hearing, that would appear to satisfy the ``congruence and proportionality standard''.
My questions are:
1. Would you apply the Justice Harlan ``rational basis'' standard or the ``congruence and proportionality standard''?
2. What are your views on Justice Scalia's characterization that the ``congruence and proportionality standard'' is a
``flabby test'' and ``an invitation to judicial arbitrariness and policy driven decision making''?
3. Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's ``method of reasoning''?
4. Do you agree with the division of constitutional authority between Congress and the Supreme Court articulated by Chief Justice Roberts in his responses cited in this letter to questions posed at his hearing by Senator DeWine and me?
Sincerely,
Arlen Specter.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. CORKER. Mr. President, I ask unanimous consent to speak in morning business.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
(The remarks of Mr. Corker pertaining to the introduction of S. 1280 are printed in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')
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