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SEN. SESSIONS: Good afternoon. It's good to be with you.
We thought we'd share a few thoughts about the Sotomayor nomination. I think Judge Sotomayor deserves fair treatment, and we're going to ensure that that happens.
The nomination to the Supreme Court always raises quite a number of important questions, and some of those questions have been discussed in recent days. I think it's quite appropriate that senators who have concerns who want to -- or are concerned about matters, that they come to the floor and raise those before the hearing, even. It gives the nominee a chance to be ready for the expressed concerns of senators, and also, I think, advances a national discussion on issues of great importance.
Today, we talked about the Second Amendment, the -- I would just say that a lot of people think the Heller case was a defining, decisive decision that guaranteed the individual right to keep and bear arms; and it was. However, it explicitly applied only to the federal law and federal government of the District of Columbia. And so they, in a footnote, noted that they were not deciding whether the Second Amendment was incorporated through the Fourteenth and would actually apply to states.
That being the case, you could have a non-federal city, a New York or a Richmond or a Philadelphia, bar handguns completely if the Second Amendment is not incorporated. So that remains a tremendous issue.
And in her decision-making process, in cases that she decided, Judge Sotomayor earlier this year rendered an opinion that held that the Second Amendment is not a fundamental right. That is a decisive and important question in whether the Second Amendment should apply to the cities and the states. So this fundamental right question is a matter of some real significance.
In truth, there's a Supreme Court decision, in 1800 I believe, that is consistent with that. And she said -- and her panel did -- that they were acting consistent with that opinion, and the Seventh Circuit agreed with her opinion on that issue. And the Ninth Circuit, however, has seen it differently. They concluded that the Second Amendment does apply to the states and the cities and the counties. So there's a difference of opinion.
Now, I would just say, first of all, this is a very significant case that will come before the Supreme Court. Just earlier this year, she rendered an opinion that, if it were to become law, would eviscerate the Second Amendment in many parts of this country because a lot of cities are hostile to weapons and guns of any kind and, like the District of Columbia, are liable to vote very severe restrictions, if not bans, on the right to keep and bear arms.
So I would say that that's what we discussed today. The nominee, I know, will be willing to talk about that -- talking about it, I'm sure, in individual meetings. I did not raise that with her, but I'm sure some senators have. I think Senator DeMint has.
Senator Hatch is a senior Republican, a fabulous senator, a constitutional scholar, a man who's been through confirmations time and again, and I know he made a very eloquent speech just earlier today. And I would recognize Senator Hatch.
SEN. HATCH: Well, thank you. Thank you, Senator. I'm grateful to have your leadership on the Senate Judiciary Committee.
Been a very important issue, and it's -- I think it's important for us to raise them in advance so that Sotomayor at least has some idea of what some of the questions will be.
And this is a very important question to most all of us. The Second Amendment means a great deal to us. It took a long, long time to get the Heller case that finally decided that the Second Amendment is a personal right. And I think the distinguished senator from Alabama has explained it quite adequately.
The Senate has to look at Judge Sotomayor's entire record to evaluate her judicial philosophy, including her speeches, as well as the cases. Now, her Second Amendment decisions appear to have unnecessarily minimized and confined the scope and vitality of this Second Amendment constitutional right.
Even after the Supreme Court in Heller indicated the Second Amendment protects not only an individual right to keep and bear arms but a preexisting fundamental right, Judge Sotomayor continued to say that the right to keep and bear arms is not a fundamental right, and this when it was not necessary to decide the case before her.
This appears to be an approach focused on politically correct results rather than on the judicial -- a judicially correct process. Other circuits looking at the issue, as the distinguished senator from Alabama said, gave it much more attention and analysis than did Judge Sotomayor. And they did -- you know, they did not address the unnecessary issues. And yet -- well, I'll just put it this way: I wish Judge Sotomayor had been similarly restrained on these issues.
And these are among the most important issues and questions that her record raises and which must be addressed at the hearing. And so this is a fair way of letting her know in advance that this is an important issue to, I think, a majority of senators in the United States Senate, and certainly a majority of the people in this country.
And we'll expect her to tell us what her real feelings are on this, and really what she believes the law really should say. And we'll give her every opportunity to represent herself and, of course, to bring us up to speed on what her personal feelings are and what her belief in the law really is in this particular area.
SEN. SESSIONS: Jim?
Thank you. Jim DeMint.
SEN. DEMINT: The questions here about the Second Amendment really bring up the question of whether the Constitution still applies to all Americans. President Obama, before he was president, suggested in interviews that he saw the Constitution as incomplete, as a charter of negative liberties; that it told the government what it couldn't do, but it didn't tell the government what it had to do on behalf of the people.
The president apparently doesn't see the Constitution as a document that limits the role of government. And we've seen in many areas of his administration an attempt to expand government to many areas of our society and to our economy.
And that brings us to the discussion about his Supreme Court nominee, who also appears to be part of this pattern. When I had a chance to meet with Judge Sotomayor and ask her if the Second Amendment applied to every American, I was not asking her to prejudge any particular case, but to just give me her interpretation of the Second Amendment, which is pretty clear that the right of the people -- it says "people" -- to keep and bear arms shall not be infringed.
If this does not apply to every American, then the question is clear whether or not the Constitution still applies. That's my concern with this nominee. It appears to reflect a pattern of this president that he does not respect the limits of our Constitution and intends to have himself, his administration and his judges reinterpret it on our behalf.
If the Second Amendment does not apply to every American, as it very clearly does, then the Constitution no longer has any bearing on controlling the role of the federal government. It's a very important question that goes much beyond the question of bearing arms, but whether or not we are still a constitutional republic.
SEN. SESSIONS: John Cornyn?
SEN. CORNYN: Thank you.
Well, 200-plus years ago, we had a debate in this country about what the Constitution should consist of, and you remember the fight between the Federalists and anti-Federalists. And as a result of that fight, a compromise was achieved where the first 10 amendments to the Constitution, the Bill of Rights, was adopted.
And that includes some of the rights that, as Jim DeMint said, are the basic freedoms against government constraints and control that Americans now believe constitutes their most fundamental rights -- the right to free speech in the First Amendment. And we've hinted to some questions we would like to ask Judge Sotomayor about her commitment to freedom of political speech and political activity.
The Second Amendment, which, again, is part of the Bill of Rights. The Fifth Amendment, which, of course, protects private property rights. The 14th Amendment, which deals with equal protection of the laws. All of these are going to be areas of concern.
But this is the first time that I know of in our nation's history where a Supreme Court nomination will really focus on and in many ways revolve around the nominee's commitment to the Bill of Rights, and most particularly, the Second Amendment to the Constitution.
And of course the stakes, as you've heard, are very high. Even though the Supreme Court of the United States decided just this last year in the Heller case that the right to keep and bear arms of individuals in the District of Columbia -- there are other cases, as I believe Senator Hatch and Senator Sessions mentioned, that are on their way to the United States Supreme Court. So this is not a fanciful or made-up issue. This is a real issue that will be addressed by the Supreme Court of the United States, if Judge Sotomayor is confirmed, with her on that court and part of that court.
The concern I have is that given -- when given the opportunity to interpret the Second Amendment of the Constitution, she essentially denied that the right to keep and bear arms under the Second Amendment was an individual right and was a fundamental right of all Americans. And that was in the case that perhaps you're familiar with, the Maloney versus Cuomo case, where she basically held that the right to keep and bear arms -- that amendment of the Constitution did not apply to cities and states but merely to the federal government, limiting it in a way that really is implausible. And I would say for any law student, much less a federal judge of 18 years, to take that kind of cramped and restricted view of a basic civil liberty in our Bill of Rights is troubling indeed.
So these are -- again, I agree with Senator Hatch that in fairness to the nominee we are highlighting issues of concern to us to give her the time to prepare for the questions that we expect to ask her, and we look forward to that hearing on the 13th and her candid responses to the questions about these important issues.
SEN. : Questions?
Q Yeah, on the Maloney case, wasn't that opinion, which was per curiam and unsigned by any individual judge, really standing for the proposition that the Supreme Court in Heller did not overrule the 1890s case, which -- (inaudible) -- the Second Amendment didn't apply to the states and that because in Heller they hadn't -- they specifically said they weren't doing that, this court was just following Supreme Court precedent, which is how the 2nd Circuit came down.
SEN. CORNYN: I would just say that if in fact the rights of the Second Amendment apply to each and every American and guarantee an individual right to keep and bear arms, then her decision was inconsistent with that proposition.
We can talk about the incorporation doctrine and her reliance on 19th-century precedent, after the Supreme Court of the United States had just decided the Heller case. And I would say it takes, as I mentioned, an unnecessarily cramped and restricted view of an individual right, when it comes to the right to keep and bear arms.
SEN. SESSIONS: Thank you.
Q Senator, as you mentioned, this has come up in three circuits, circuits that are likely to come to the Supreme Court. How can she address the question, if it's likely to come before her? How does she answer that question then?
SEN. SESSIONS: I think that's a good question. I'm not sure that we've thought that through yet and what the right answer would be. She certainly can be asked about the case she decided.
As you know, Judge Roberts and Judge Alito were all asked about cases they decided. And their reasoning was examined in that. But I don't think it's appropriate for us to try to insist that she state how she might rule on a case, in the future, because that would be I think an improper act by the Congress.
But, and I would also suggest that there may be a question of whether or not she should sit on a case, in the future, if it's one she's personally already ruled on. Her case could be perhaps one coming up. Who knows?
SEN. HATCH: But she could -- the Heller case did say that this was an individual right. And I think she should have to respond to the question, do you believe it's an individual right? Because that should have not a heck of a lot to do with the future cases although in my eyes, it will have a lot to do with the future cases. But I think she can be asked that question, and appropriately so.
Q Have any of you asked her that question? Senator DeMint?
SEN. DEMINT: I did not.
Q Senator Sessions -- (off mike) -- criticism of that. Now it seems like you're moving forward with this sort of Second Amendment question.
Is it somehow more fertile territory for you, to attack this or take a look at this nomination?
SEN. SESSIONS: Well, I think the -- there's been a lot of discussion about the speeches that she's made. The president has even said she misspoke. But she -- if she did, she misspoke about half a dozen times, because she repeated that statement. I don't think she will say she misspoke.
So I'll -- be interesting to see how she answers that, the question about whether the Court of Appeals are policymaking bodies. Those are very, very important issues that I'm sure will be examined at the hearing, and have troubled the American people, the people who talk to me.
I would just say that there will be other issues, and this is one of them that had not been talked much about, and I think it's time to begin to discuss this issue, because I believe the Second Amendment is a vital constitutional amendment.
A lot of people don't think they have to enforce the Constitution as it's written. They'd like to enforce it as they would like it to have been written. And I think it's a question as to whether she's committed to it. It'll be an interesting discussion.
SEN. DEMINT (?): Can I just respond to your question and say -- I'm not picking on you, but you -- first you use the word "attack" --
Q It's not -- (off mike).
SEN. DEMINT: Well, no, and you're not the only one I've seen sort of characterize what we're doing as attacking the nominee. It -- this is the opposite of attacking the nominee. This is raising questions, and I think performing our constitutional duty under the Constitution, under the advice-and-consent clause.
And so please -- I think it's unfair to characterize what we are doing as an attack. We are raising an issue, saying these are legitimate questions, and we want to have the nominee respond to them.
I would once again point, however, that this stands in stark contrast to the way that Miguel Estrada, who perhaps would have been the first Hispanic nominee to be on the United States Supreme Court if he hadn't been filibustered seven times and denied an up-or-down vote by Democrats when they were in our position now, and in contrast to the disrespectful and unfair process by which previous nominees have been considered. I think this stands in stark contrast. And we are -- we're committed to a fair and dignified process, raising these issues but then doing our job under the Constitution.
Q I'm still confused -- a lot of you think that she -- (off mike) -- she and a panel will -- (off mike) -- upon whether the Second Amendment is fundamental or not, when in Heller the court specifically said, "We're not dealing with whether this applies to the states." And that was what they -- they refused to overturn that other precedent.
SEN. DEMINT (?): May I read you -- may I read you two sentences?
SEN. DEMINT (?): On page 3. This is a Lexis copy of the case. But she says, "The 14th Amendment similarly provides no relief for appellant." Quote, "Legislative acts that do not interfere with fundamental rights or single out suspect classifications carry with them a strong presumption of constitutionality and must be upheld if rationally related to a legitimate state interest."
I think, fairly read, she says this does not interfere with a fundamental right, which we believe -- I believe that this -- every American, under the Second Amendment of the Constitution, has a fundamental right to keep and bear arms, unless, of course, they've been convicted of a crime or something else --
Q But isn't that the same issue of whether or not the right is incorporated into the Fourteenth Amendment? And that's what the Supreme Court said in Heller they weren't deciding, right?
SEN. DEMINT: You are right, to the extent that this is about incorporation and that arcane and archaic doctrine, which I thought had pretty well been decided, that the Supreme Court had said basically all of the Bill of Rights had been incorporated through the Fourteenth Amendment of the Constitution.
All I'm saying is that she went out of her way to deny a right to keep and bear arms as a fundamental right, under the language that I read to you.
SEN. SESSIONS: I would just say, we don't think that language was necessary to the opinion. It was not -- so it's a bit -- it raises some questions that she'll -- we'll need to talk about. I think she can be asked about that opinion that she wrote.
Q The Democrats are going to try to get health-care reform done in the next month. They're also going to have the Sotomayor nomination. How much floor time would the Sotomayor nomination need? And maybe Senator Hatch might answer the question.
SEN. SESSIONS: Yes, he's got more experience than I. Now, we both have to run to committee hearings. I would say that the Supreme Court nominations are perceived as more important now than 20 years ago, for a lot of reasons. I think you'll have a lot of senators that want to speak on it, and it will take some floor time.
And I think the nominee deserves not just a dismissal because of this holding or that holding, but a real legal analysis of why the nominee was either incorrect or correct. She'll have supporters, I'm sure, that will defend rulings, and some critics on certain rulings. So I think that'll take some time, and should. It's an important matter.
Q So a week? I mean, how much time on the floor?
SEN. SESSIONS: I won't estimate that.
SEN. HATCH: Well, in the past, it took whatever time it took. And the fact of the matter is, is that this period of time has been scrinched together in a way that really was unjustified, without any consultation with the minority at all, which was highly unusual.
In my 33 years here, I've never seen, whichever side was chairing the committee, just arbitrarily set a time limit like that.
And by the way, we're not getting all of the documentation that we have asked for. Hopefully we will. But is it going to be just a day or two before the hearings? Some of it's voluminous. You know, these are the types of things that I think have cause a lot of angst on the committee, at least among Republicans.
And again, I share the opinion of Senator Cornyn and the distinguished ranking member of the committee, Senator Sessions, that I expect Judge Sotomayor to be treated with much greater respect and care by our side than a number of our nominees for the Supreme Court and major circuit courts of appeal -- than the way they were treated. And nobody here has the desire to -- to misuse the process in an offensive way.
But these are very important questions. And at least -- at least the four of us here today, and I have to say I think a vast majority of the Senate, are really concerned about, well, impromptu discussions about the Second Amendment in cases of law that weren't necessary in deciding the case, and especially when they fly in the face of what we believe the law really is.
So these are matters of great concern. And -- and I suspect that by raising this in advance that we'll help Judge Sotomayor during the hearings, which is a lot more than they did for our nominees.
SEN. CORNYN: Thank you.
SEN. SESSIONS: Thanks.