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tv   [untitled]  CSPAN  June 24, 2009 4:30am-5:00am EDT

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sotomayor's record. i'd like to hear more from her on the scope of the second amendment to the constitution an whether americans -- and whether americans can count on her to uphold one of the fundamental liberties enshrined in the bill of rights, the right to keep and bear arms. i'd also like to hear more from judge sotomayor on the scope of the fifth amendment and whether the government can take private property from one person and give it to another person based on some elastic definition of public use. and i want to hear more from her on her thoughts on the equal protection clause of the 14th amendment of the constitution, which reads in part: no state shall deny to any person within its jurisdiction the equal protection of the laws. obviously the third issue is going to be very much in the news, probably again as soon as next monday when the supreme court hands down its decision in
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the ricky vs. destafano case, a case in which judge sotomayor participated on the panel before her court of appeals. that case, as you may recall, involves firefighters who took a competitive race-neutral examination for promotion to lieutenant or captain at the new haven fire department. the bottom line is that the supreme court could decide the ricky case in a matter of days, and the court's decision, i believe, will tell us a great deal about whether judge sotomayor's philosophy in that regard as far as the equal protection clause is concerned, is within the judicial mainstream or well outside of it. the ricky case is one way the american people could get a window into judge sotomayor's judicial philosophy. another way is to look at some of her public comments,
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including speeches made on the duty and responsibility of judging. the remarks that have drawn the most attention are those in which she said -- and i quote -- "i would hope that a wise latino woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life." as i said before and i'll say it again, there's no problem certainly from me, and i don't believe any senator, if she's just showing what i think is understandable pride in her heritage. as we all should as a nation of immigrants. but if the judge is talking about her judicial philosophy and suggesting that some people, some judges, because of their race, because of their ethnicity, because of their sex, actually make better decisions
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about legal disputes, then that's something senators will certainly want to hear more about, this senator included. judge sotomayor has made other public remarks that deserve more scrutiny than they have received so far. for example, in a speech in 2002, judge sotomayor embraced the remarks of judith resnik and martha minnow, who are two prominent law professors who each proposed theories about judging that are far different from the way that i think most americans think about these issues. most americans think that the people elect their representatives, members of the house and senate, to write the laws. and that judges, rather than rewriting those laws, should interpret those laws in a fair and commonsense way without imposing their own views on what the law should be. most americans think that when judges impose their own views on a case, when they substitute
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their own political preferences for those of the people and their elected representatives, they undermine democratic self-governance and they became judicial activists. professors resnik and minnow have very different ideas from, i think, the mainstream american thought on what a judge's job should be. their views may not be controversial in the ivory tower of academia. academics often encourage each other to engage in provocative theories and so they can write about them and get published and get tenure. but the american people generally don't want judges to experiment with new legal theories when it comes to judging. they have a more commonsense view that judges should follow the law and not the other way around. so where does judge sotomayor stand on some of these academic legal theories which i think are far out of the mainstream of american thought? i'm not sure, but in her 2002
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remarks she said this, she said -- quote -- "i accept the proposition that as professor resnik describes it, to judge is an exercise of power. and as professor minnow states, there is no objective stance, but only a series of prospectives. no neutrality, no escape from choice in judging." if i understand her quotes directly -- and those are some things i want to ask her about in the hearing -- that's not the kind of thing that i think most americans would agree with. they don't want judges who think there is no such thing as neutrality in judging because neutrality is an essential component of fairness. if you know you're going to walk into a courtroom only to have a judge predisposed to decide against you because of some legal theory, then that's not a fair hearing. and we want our judges to be neutral and as fair as possible when deciding legal disputes.
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the american people, i don't think, want judges who believe that they have been endowed with some power to impose their views for what is otherwise the law. americans believe in the separation of powers, separation between executive, legislative, and judicial power, and that judges should by definition show self-restraint and respect for the other branches of government. mr. president, i hope judge sotomayor will address these academic legal theories during her confirmation hearing, and i hope she'll clarify what she sees in the writings of professors resnik, minnow and others that she finds so admirable. i hope she'll respect the constitution more than these newfangled legal theories and she'll respect the people.
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mr. president, i thank the chair, and i yield the minutes. the presiding officer: without objection. mr. mcconnell: madam president, this morning i'd 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 to the highest court in the land. the president has said repeatedly that his criteria for federal judges is their ability to empathize with certain groups, he said it as a senator and candidate for president and as president. i think we can take the president at his word about a judge wanting to exhibit this trait on the bench. based on a review of judge sotomayor's record, it's becoming clear to many that this is a trait he's 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
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judging. and i believe once americans come to appreciate the real-world consequences to this view, they will find the empathy standard troubling as selecting men and women for the federal bench. a review of judge sotomayor's reviews an writings illustrate the point. the 2002 article in the berkley 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 with different ethnicity. her advocates say that it was inartful, taken out of context of we have since learned, however, she has 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
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that judges should be neutral and said that the principle of impartiality is a mere aspiration that she's skeptical judges can achieve in all or even in most cases or even -- or even in most cases. madam president, i find it extremely troubling that judge sotomayor would question whether judges have the capacity to be neutral even in most cases. there's 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's also argue usual that it reflects a deeply held view about the role of a judge, a view that i believe most americans would find very worrisome. now, madam president, i'd 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'm concerned that some of
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her own personal preferences and belief about policy may have influenced her decision. for more than a decade judge sotomayor was a leader in the port wreakian -- puerto rican legal defense fund. 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's 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. the group's most important projects was filing lawsuits against the city of new york
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based on its use of civil service exams. judge sotomayor, in fact, has been credited with helping to 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 tests 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 hadn't passed the test while passing over some white officers who had. well 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 upon race under the settlement agreement and refused to promote them because of quotas. thr cases reached the supreme court with the high court
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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 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.
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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 day in court on their very significant claims. now i don't believe the judge should rule based on empathy, personal preferences or
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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 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
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groups but implicitly not with others? if so, what if you're not in one of those groups? 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
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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 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
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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 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
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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 g 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 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
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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, 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
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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 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,
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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 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
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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 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.
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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 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.
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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 willaithfully 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 the blindfold, which we have always believed in in this country and which has been the cornerstone of american
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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 what it stands for. and as we know it -- as we know it. that's one of the matters that
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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 dinkins, criticized members of the radical puerto rican nationalist group and called them assassins because they shot at members of congress and been
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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 into groups like the faln, which has recently had occasion, we've discussed in depth, the faln, itself, was responsible for more
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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 involvement with the fund, a tycal question of all nominees. but critically important for a supreme court nominee. but we've not received information, indeed, we have
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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 cases that both the state and the federal government should restrict the use of public funds for abortion. the question of public funding of a


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