DEPARTMENT OF HOMELAND SECURITY APPROPRIATIONS ACT, 2010 -- (Senate - July 09, 2009)
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SOTOMAYOR NOMINATION
Mr. WHITEHOUSE. Madam President, I am here to talk about Judge Sotomayor. I am looking forward to her confirmation hearing, which begins next Monday. I continue to review her record, and I will not make my ultimate judgment until after the hearing. But I must say I am very impressed with Judge Sotomayor's qualifications, including her restrained and fact-based approach to deciding cases. I'm also impressed, as a former prosecutor myself, by her experience as a practicing attorney and as a line prosecutor. I think we are all impressed by her educational achievements.
Like millions of Americans, I have been inspired by her personal story. Frankly, it gives me goosebumps to think of that little girl growing up in the projects in the Bronx and growing into the woman we see before us now at the top of the legal profession, with a career of exemplary conduct, exemplary academic achievement, exemplary judicial experience behind her. It is really a great story of American discipline and achievement.
Unfortunately, critics of Judge Sotomayor's confirmation have unleashed an avalanche of innuendo meant to weaken the case for her confirmation. These criticisms began among the right-wing talking heads, but unfortunately, some of them are now voiced by my Republican colleagues here on the floor. Indeed, rather than waiting for the hearing to ask her about her record and her judicial philosophy, a number of my colleagues have come to the floor to attack her and her nomination.
Today, I would like to briefly address two particular and--frankly, very surprising--attacks on Judge Sotomayor: first, the suggestion that her judicial philosophy is somehow outside of the mainstream; and, second, the suggestion that her life experience is somehow unhelpful to the judgment she would bring to the Supreme Court.
First, Judge Sotomayor's judicial philosophy. My Republican colleagues like to suggest that judges appointed by Republican Presidents are neutral ``umpires'' and that judges appointed by Democratic Presidents are judicial ``activists.'' But Chief Justice Roberts himself, who, indeed, raised the ``umpire'' metaphor at his own confirmation hearing, reveals the falsity of that comparison. Jeffrey Toobin, a well-respected legal commentator, recently described a pronounced ideological predisposition in Chief Justice Roberts.
In every major case since he became the Nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
Let me say that again:
In every major case since he became the Nation's seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
Maybe this is a pure coincidence, and maybe it is a further coincidence, to again quote Toobin, that this record ``has served the interests, and reflected the values, of the contemporary Republican Party.'' Maybe it is also a coincidence that in the Heller decision, the DC gun law case, the Roberts-led conservative block of the Court discovered a new constitutional right that had previously gone unnoticed through 220 years of the United States Supreme Court's history, and which just happens to appeal to the NRA and the Republican base. Perhaps that is all a coincidence. But I will confess to you, I doubt it. I think this record goes a long way towards disproving the metaphor of the Republican judge as neutral umpire.
So let's put aside the notion that conservative men from the Federalist Society have no predispositions in legal matters but that anyone who differs from their views is the activist. That is just rhetoric, and what it's seeking to do is to normalize the right-wing activism that the Republican Party has calculatedly and over many years moved onto our Court.
If you want to decide whether Judge Sotomayor has an appropriate judicial philosophy, look at her full record. Throughout her long career as a Federal judge, longer than any Supreme Court nominee since the 19th century, Judge Sotomayor, has on every major issue, shown that the facts and the law drive her determination of cases. On the Second Circuit, Judge Sotomayor agreed with her more conservative colleagues far more frequently than she disagreed with them. In 434 published panel decisions where the panel included at least one judge appointed by a Republican President, she agreed with the result favored by the Republican appointee in 413 cases--413 out of 434. That is 95 percent of the time, and it is no record of extremism. Indeed, it would seem to put her on the conservative side of the mainstream. And consider what she told Chairman Leahy:
Ultimately and completely, as a judge, you follow the law. There is not one law for one race or another. There is not one law for one color or another. There is not one law for rich and a different one for poor. There is only one law.
Furthermore, the idea that because the Supreme Court disagreed with Judge Sotomayor's Second Circuit panel decision in Ricci v. DeStefano, she is somehow outside the mainstream is patently absurd. First, four Justices of the Supreme Court agreed with the Second Circuit's interpretation of the law. Are Justices Stevens, Souter, Ginsburg, and Breyer outside of the mainstream? Hardly.
Second, Judge Sotomayor and her panel were faithfully applying the settled precedent of the Second Circuit when they rendered their decision--just what a circuit court judge of the United States is supposed to do. The five Justices on the Supreme Court in the Ricci majority, in deciding the case, invented an entirely new test for resolving Title VII claims that, according to legal experts reported in the New York Times, ``will change the landscape of civil rights law.'' It is hardly fair to criticize Judge Sotomayor for not applying a test that did not even exist when she decided the case. Nor for failing to venture into landscape changes of civil rights law.
In the Ricci decision and others, Judge Sotomayor's record demonstrates a long career of faithfully applying the law to the facts of the case before her--and the careful exercise of judicial discretion.
That brings me to my second point. Wise exercise of judicial discretion is the longstanding tradition underlying the American system of law. It is harsh, narrow-minded, and ahistoric to contend that a rich life experience and natural empathy are at odds with that judicial tradition.
Any lawyer knows the importance of judicial discretion, both in our common law system and to the interpretation of the Constitution. As Justice John Paul Stevens has explained:
the work of federal judges from the days of John Marshall to the present ..... requires the exercise of judgment--a faculty that inevitably calls into play notions of justice, fairness, and concern about the future impact of a decision. .....
That faculty has served the Nation well for over two centuries. Indeed, discretion is at the heart of the judicial role. Our legal system bears the imprint of the experience and wisdom of generations of judges. As Justice Holmes famously explained, ``[t]he life of the law has not been logic: it has been experience.'' Indeed, as Holmes continued, [t]he law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
This discretion, of course, does not mean that judges are without bounds. But there exists a broad and lively discretion that falls far short of ``judicial activism.'' Justice Benjamin Cardozo put it this way:
The judge ..... is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. .....He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ``the primordial necessity of order in the social life.'' Wide enough in all conscience is the field of discretion that remains.
Madam President, within this wide field of discretion, judges do not, cannot, and should not close their minds to their experience of the world, nor to what their experience teaches them about the effects of their decisions on the world.
There has been plenty of empathy at the Supreme Court recently for the rich and powerful, resulting in decisions that frustrate congressional intent and deprive Americans of crucial statutory and constitutional protections. There has been plenty of empathy for right-wing ideology and plenty of empathy for big corporations. Should we not also admit to the Court a nominee who has common sense, who can appreciate how American laws affect different citizens, and who can also empathize with the poor and the weak, as well as the more fortunate?
If reaching correct outcomes were as simple as plugging a few factors and elements into a computer, we would not need nine Supreme Court Justices. Quite simply, a broadened range of perspectives and experiences will make for better judgment by our Court.
One final thing is worth noting about the judicial branch of government. It is designed to be a check and balance to the elected branches. The Founders were keenly aware of the corruption and passing passions to which those elected branches are vulnerable, and they established the judiciary as a place where all were equal before the law, and where power, money, and influence were intended to hold no sway. The courtroom can be the only sanctuary for the little guy when the forces of society are arrayed against him, when proper opinion and elected officialdom will lend him no ear. This is a correct, a fitting, and an intended function of our judiciary, and the empathy President Obama saw in Judge Sotomayor has a constitutionally proper place in that structure.
If everyone on the Court always voted for the prosecution against the defendant, for the corporation against the plaintiff, and for the government against the condemned, a vital spark of American democracy would be extinguished. A courtroom is supposed to be a place where the status quo can be disrupted, where the comfortable can be afflicted, and the afflicted find some comfort when no one else will listen. A judge of the United States is not an orderly, neutered little functionary of the power structure. Judge Sotomayor's broad background and empathy prepare her better for that proper judicial role than would grooming in corporate boardrooms, scrubbing by the Federalist Society, and fealty to party ideology.
I am looking forward to Judge Sotomayor's hearing as an opportunity for her to finally reply to her right-wing detractors, to demonstrate her intellect and qualifications, and to explain her judicial philosophy. My preliminary review of her record suggests that she understands the importance of judicial restraint and modesty, of adherence to precedent, of respect for the legislative branch, and of the timeless values enshrined in the Constitution. And she has articulated a desire to be scrupulously fair by keeping sight of--not denying--the lessons she has learned during her extraordinary life.
Judge Sotomayor appears, more than anything else, to be a careful and conscientious judge. So let us not throw care and conscience to the wind by hurling unjustified, unhelpful, and tired labels at her; let us be proud to have a Justice of the Supreme Court with the type of broad life experience that will inform her good and proper judgment.
Thank you, Mr. President, I yield the floor.
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