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tv   [untitled]  CSPAN  June 23, 2009 11:30am-12:00pm EDT

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the city discriminated against them based upon race under the settlement agreement and refused to promote them because of quotas. their cases reached the supreme court with the high court splitting 4-4 which allowed the settlement to stand. more recently another tkpwraoufp public safety officers made a similar claim, a group of mostly white new haven, connecticut, 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 the standardized tests, individuals from these other groups would not have been promoted. to avoid the result, the city threw out -- to avoid this result, the city threw out the test and announced that no one that took it would be eligible
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for promotion regardless of how well they performed. the firefighters who scored highly sued the city under federal law on grounds of employment discrimination. the trial court ruled against them on summary judgment. when their case reached the circuit -- 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 tpwas 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' claim, thereby deriving them a trial on the merits, it didn't even explain why they shouldn't have their
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day in court on their very significant claims. now i don't believe the 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 richie, 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 tkhr-rts 1,000 to buy -- spending $1,000 to buy textbooks and 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 6th best score. but despite his hard work and high peformance, the city
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deprived him of the promotion he had clearly earned. is this what the president means by empathy, where he says wants judges to empathize with certain groups but implicitly not with others? if so, what if you're not in one of those groups? what if you're frank richie? this is not a partisan issue. it's not just conservatives or republicans who criticize judge sotomayor's handling of the richie case. self-described democrats and political independents have done so as well. president clinton's appointee to the second circuit in judge sotomayor's colleague, jose cabranas criticized the handling of the case. he wrote a stinging dissent terming the handling of the case per funkry and saying 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
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was handled. last month before the president made his nomination, mr. cohen concluded his piece on the subject as follows: "richie is not just a legal case but a man who has been deprived of 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. this is 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, madam president, it's an add pheurp *f michelle quality to be a zell -- it's an admirable quality to be a zealot advocate. but judges are supposed to be passionate advocates for the
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even handed reading and fair application of the law, not their policies and preferences. in reviewing the richie case, i'm concerned that judge sotomayor may have lost sight of that. as we consider this nomination, i'll continue to examine her record to see if personal or political views have influenced her judgment. i yield the floor. a senator: madam president? the presiding officer: the senator from alabama. mr. sessions: madam president, i thank senator mcconnell for his thoughtful comments. he's a lawyer who studied these issues and cares about them deeply. i value your comments. i do think that, as you know, senator mcconnell, while you're here, that once a nominee achieves the supreme court, they do have a lifetime appointment. and these values and preferences
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are principles that they operate on go with them. it's up to us, i think you would agree, to make sure that the values and principles that they bring to the supreme court would be consistent with the rule of law. and i appreciate -- mr. mcconnell: if the senator from alabama would yield, i just want to commend him for his outstanding leadership on this most important nomination and his consistent 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's done a superb job, and i just want to thank him for his effort. mr. sessions: thank you, senator mcconnell. i would note there are only nine legislative days between now and the time the hearing starts. so we definitely are in a position where it's going to be difficult to be as prepared as we would like to be when this hearing starts. and we still don't have some of the material we need also. my staff and i have been working
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hard, madam president, 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've seen judicial opinions atune more, i think, to the judge's personal preferences than to the law. it's caused quite a bit of heartburn throughout the country. we've seen judges who fail 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's why lawyers and judges during court sessions -- and i practiced hard in federal courts for 15 years, been in court a lot -- when they go to court,
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they don't 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," maybe 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 and 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 a fine career of experience, as judge sotomayor does, meets all the qualities required of one that
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would sit on the highest court. and as this process unfolds, it's important that the senate conduct its evaluation in a way that's honest and fair, remembering 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, videos not produced that are important to this process. my colleagues and friends are asking me, they say what have you found? what have your staff and -- what evaluations have you formed? what are your preliminary thoughts? and i've been somewhat reluctant to discuss these matters at this point in time, as we continue to review the record. but in truth, the confirmation process certainly must be conducted with integrity and
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care. but it's not a judicial process. it's a political process. the senate is a political legislative body, not a judicial body. and it works its will, and its members must decide issues based on which wha* each member may conclude is the right standard or the right beliefs. and i've certainly not formed hard opinions on this nominee, but i've developed some observations and have found some relevant facts and have some questions and concerns. it's 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 and discussing them openly can help our senate colleagues get a better idea of what the issues are and, and the
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public, and that the nominee can see what the questions are now before the hearings start. unfortunately, the record that we have is incomplete in key respects. it makes it difficult for us to prepare. and as i review the record, we do have, 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. and, 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 phaeup sound nice, but
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empathy towards one, is it not prejudice towards the other? 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's not law. so i think law -- empathy, that standard, a preference 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's the impartial ideal. that's the ideal of the lady of justice with the scales, with
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the blindfold, which we have always believed in in this country and which has been the cornerstone of american jurisprudence. so what i've 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 decision making, her speeches and writings outside the court are certainly of concern, some of which senator mcconnell mentioned. i'll discuss some other areas that are significant also, i think. she has had extensive work with the puerto rico appeal defense and education fund. then a supporter presumably of
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what it stands for. and as we know it -- as we know it. that's one of the matters that i'll discuss a bit here. also i will discuss her decision to allow felons, even those in jail convicted, the right to vote, overruling long-established state law, and some other matters that i will discuss, including the new haven firefighters case. looking at the long association the nominee has with the puerto rican legal defense and education fund, an organization that i have to say is, i believe, clearly outside the mainstream of american approach to matters, this is a group that has taken some very shocking positions with respect to terrorism. the new york mayor, david
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dinkins, criticized members of the radical puerto rican nationalist group and called them assassins because they 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 judge's comments were insensitive. he -- he -- the president of the organization continued explaining that for many people in puerto rico, these men were fighters for freedom and justice. so i wonder if -- if she agreed with that statement. and that his -- the mayor of new york's statements were insensitive. so these puerto rican nationalists reconstituted later
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into groups like the faln, which has recently had occasion, we've discussed in depth, the faln, itself, was responsible for more than 100 violent attacks resulting in at least six deaths. i find it ironic that once again we find ourselves discussing these murderous faln members, not long ago we considered whether or not to consider attorney general eric holder who advocated pardoning them and president clinton did. and now we've -- we find ourselves wondering about this nominee to the court and what her views on these matters and how her mind works as she thinks about these kind of issues. we don't have enough information, unfortunately, to assess these concerns effectively. we requested information relating to judge sotomayor's
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involvement with the fund, a typical question of all nominees. but critically important for a supreme court nominee. but we've not received information, indeed, we have received nine documents totaling fewer than 30 pages relating to her 12 years with the organization. so it's 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. we know basically 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 like abortion. in one brief, which was in support of a rehearing petition in the united states supreme court, a brief to the supreme court, the fund criticized the supreme court's decision in two
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cases that both the state and the 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 that -- quote -- "just as dread scott v. sanford refused citizensship to black people, these stripped citizenship under the fundamental law. close quote. in their view the equal protection clause prohibited restrictions on either federal or state government provisions of funding abortions. so i think this is an indefensible position. we just do not know how much judge sotomayor had to do with the -- with developing these positions of the fund, but, certainly, she was an officer of it and involved in the litigation committee during most
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of this time. but because we don't have the information -- because we don't have the information we requested. we do know that 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 our judge sotomayor would approach death penalty cases? i think she has a firm death -- affirmed death penalty cases, but on the supreme court that's different ability to redefine cases, and these personal views of her could very well affect that. recently five justices of the supreme court decided, based in part of their review of rulings
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of courts of foreign countries, that the constitution says that the united states cannot execute a violent criminal if he is 17 years of -- 17 years and 364 days old when he willfully premeditatedly killed someone. they say that the constitution says that the state who has a law to that effect cannot do it. looking -- quote -- "to revalving standards of -- revalving standards of decency that mark a maturing society," close quote, this is what the court said as they set about their duty to set the supreme court, five members of the supreme court, four dissents said looking to -- quote -- "evolving standards of decency
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that mark the progress of a maturing society." close quote. we conclude the death penalty in this case violated the 8th amendment. and there are six or eight references in the constitution to the death penalty. if states don't believe 18-year-olds should be executed or 17, they should prohibit it and many, ma many states do. but it's not answered by the constitution. but five judges didn't like it. they consulted with world opinion in what they consider to be evolving standards of decency, and said the constitution prohibited the imposition of a death penalty in this case when it never had been considered to be so since the founding of our republic. i don't think that is a principled approach to jurisprudence. that's the kind of thing i'm worried about if we have another
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judge who will think like that on the bench. i'll ask -- i 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're in jail. as it choice that states can can make and have made -- can make and have made between 1776 and 1821, 11 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
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and vermont, disenfranchised felons much for years -- felons. for years these types of laws have been upheld by the courts through range of challenges. in hayden v.pataki, judge sotomayor said that it violated 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 14th amendment to the constitution itself. in her view with analysis of a few short para graphs only, the new york law was found -- quote -- "-- she found -- she concluded that the new york law was -- quote -- "on account of race." close quote and therefore it violated the voting rights act. it was on account of race because of its impact and
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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 law is setting a voting age of 18 would also violate federal law because within the society or in most societies -- or most of our country, minorities would have more children under 18 and that would have a desperate impact on them. so i don't think this can be the law and as a majority of the colleagues on that court explained and did not accept her logic. actually her opinion was not upheld. so i look forward to asking her about that. i'm aware that judge sotomayor
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would say that she's acting as a strict constructionist by simply applying literally the 40-year-old voting rights act of 1965. well, i don't think so, really. i remember when miguel estrada, that brilliant lawyer that 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, he said during his hearings that he didn't like the term strict constructionist. he preferred the term fair construction. he was correct, i think, 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 a debate on the legislation? that historic law, which limits
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felons voting, are to be just wiped out? even allowing felons still in jail to vote? i don't think so and neither did most of the judges who have heard these cases. with regard to the new haven firefighters case, i would just say, madam president, that we will be looking to -- to the end of that case in some length. stuart taylor did a fine amaltis of -- analysis of it in his writing, i believe in "the national journal," he found that no one found that the examination that these firefighters took was invalid or unfair. he has explained if the belated, weak and speculative criticisms
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obviously tailored to impugn the outcome of the test are sufficient to disprove an exam's validity or fairness, no test will ever withstand a desperate impact lawsuit. well, that may or may not be judge sotomayor's objective, but it cannot be the law. -- law says mr. stuart taylor in his thoughtful piece. the firefighters you see were told that 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 decision concluded that too many nominees did not -- too many minorities did not pass the test.
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and no finding was made that the test was unfair. so we'll be looking at that and quite a number of other matters as we go forward. we'll be talking about the question of foreign law, the question of this nominee's commitment to the second amendment, the right to keep and bear arms. the constitution said the right to keep and bear arms shall not be infringed and we'll 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 and 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 united states constitution for heaven's sake.
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neither does foreign law. how can that help us interpret the meaning of words passed by an american legislature? oftentimes world opinion defined in no objective way. just how the judge might feel world opinion is, i'm not sure they conduct a world poll or what court's law do they examine in the around the world to help that influence their opinion on an american case? this is a dangerous philosophy is all i'm saying. it's a very serious debate. there are many in law school who have a different view. there's an intellectual case for an activist judiciary, for a judiciary who should not be tethered to dictionary version of words that they should be willing and bold to take steps to advance the law, they would say and


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