Executive Session

Floor Speech

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Mr. MARTINEZ. Mr. President, I rise to speak on the nomination of Judge Sotomayor to the Supreme Court. I am happy to have this opportunity, for I view it as a historic moment in many ways.

The confirmation of a Supreme Court nominee is one of the most solemn and unique duties in our constitutional system of government. The Framers, recognizing the risk of abuse inherent in a lifetime judicial appointment, created a process that brings together all three branches of the Federal Government. The Constitution, article II, section 2, requires that a nominee to the Federal court must be selected by the President and then ``with the advice and consent of the Senate.'' These moments must be appreciated and approached with a great deal of thoughtfulness and respect. This is all the more true when the appointment is to our highest Court, the Supreme Court.

There was a time when Members of the Senate seemed to better understand their role, when Senators expected a President of the other party to pick a judge who would likely be different from someone they would have picked. There are a couple of examples I would like to use.

Justice Ginsburg, a very talented person who served as general counsel to the ACLU, was not likely to have been someone selected by a Republican President. But yet she was confirmed with 95 votes. Republicans knew she would be a liberal Justice, but she was also well qualified for the job.

There is another example; that is, Justice Antonin Scalia. He was picked by a Republican President and received 98 votes. Every Democrat knew or probably should have known that they were voting for a conservative, but they also understood that then-Judge Scalia was incredibly qualified and should be serving on the Supreme Court, given that he had been nominated by a President and had the requisite qualifications, which is really the essence of what this confirmation process is and should be about.

But things have changed since those votes. They have changed from what is historically acceptable and what has been the long historic tradition of the Senate when it comes to Senate confirmations of judicial nominees. Over the past decade, I believe the Senate has lost sight of its role to advise and consent.

I notice another example. The nominations of Miguel Estrada, Chief Justice Roberts, and Justice Alito--all three of these illustrate how partisan politics have been permitted to overwhelm the fundamental question posed to the Senate, which is, Is this nominee qualified? Do you give your advice and your consent?

My colleagues will recall that Mr. Estrada was first nominated by President George W. Bush to the DC Circuit in May of 2001. He was unanimously rated ``well-qualified'' for the bench by the American Bar Association.

Mr. Estrada was someone who had a very impressive history and personal story and resume. He was a native of Honduras. Mr. Estrada immigrated to this country at age 17, graduated magna cum laude and Phi Beta Kappa from Columbia University. He received his law degree from Harvard in 1986, where he was a member of the Harvard Law Review, and went on to clerk on the Supreme Court for Justice Kennedy.

Mr. Estrada then entered private practice and was a very well-respected lawyer working in a New York law firm and served as an assistant U.S. attorney in the Southern District of New York, where I believe our nominee also served. But then Mr. Estrada took a job in the George H.W. Bush administration as an Assistant Solicitor General. What does an Assistant Solicitor General do? They prepare and argue cases before the Supreme Court. What could be a better training ground, in addition to having a prior clerkship for a Court member, than to be an Assistant Solicitor General? As a longtime attorney, I always admire greatly those who have served in that office because they are the very best of the very best.

But politics intervened. He was branded a conservative. Through the course of an unprecedented seven cloture votes, Democrats in this body filibustered his nomination. Time and again, they filibustered his nomination. It lingered for 28 months, until he finally withdrew--exhausted, wanting to get on with his life, knowing he needed to be able to continue to do work for clients, that he could not continue to be in this limbo where he had been for 28 months because of the misguided notion that he was just too conservative and so it was OK to filibuster him. For 28 months he was hanging, dangling in the wind. That was not right. It was not to the Supreme Court, but some feared that someday he might be a Supreme Court candidate, he might have been the first Hispanic serving in the Supreme Court, nominated, perhaps, by a Republican President.

So while the nominations of Chief Justice Roberts and Justice Alito ended quite differently from Mr. Estrada's, the record is, frankly, equally disturbing.

During the debates on both Roberts and Alito, then-Senator Barack Obama declared each man to be qualified to sit on the Supreme Court. Of then-Judge John Roberts, Senator Obama said, right here on the Senate floor:

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land.

To which I would then say: So why won't you vote for him?

He then said of then-Judge Alito:

I have no doubt that Judge Alito has the training and qualifications necessary to serve. He's an intelligent man and an accomplished jurist. And there's no indication he's not a man of great character.

But despite these emphatic statements of confidence, then-Senator Obama voted against confirmation. Why? Because of his perception that their philosophy would not allow him to vote for them.

Given this record, some of my colleagues conclude that what is good for the goose is good for the gander; that because of these recent precedents, and despite her qualifications, they may still vote against Judge Sotomayor's confirmation. I could not disagree more heartily.

It is my hope that starting today, we will no longer do what was done to Miguel Estrada; that beginning today, no Member will pursue a course and come to the floor of this Chamber to argue against the confirmation of a qualified nominee.

So what about our current nominee? What makes her qualified? Well, first, I think we do have in Judge Sotomayor a very historic moment, an opportunity. It will be the first Hispanic to serve on the highest Court of this land. It is a momentous and historic opportunity.

But that is not good enough. What makes her qualified? Well, I think experience, knowledge of the law, temperament, the ability to apply the law without bias--these qualifications should override all other considerations when the Senate fulfills its role to advise and consent to the President's nominee, as dictated by the constitutional charge we have. These are really the standards by which we as a body should determine who is qualified to serve on any Federal court, including the highest Court of the land. These are the standards I have used in evaluating Judge Sotomayor's nomination to the Supreme Court. She has the experience. She knows the law. She has the proper temperament.

Here is something that is very important: Her 17-year judicial record overwhelmingly indicates she will apply the law without bias. That is very important because we could find someone who really is facially qualified but whose views might be, for some reason, so outside the mainstream, so different from what the norm of our jurisprudence would be, that it might render them, while facially qualified, truly unqualified--that they really could not be relied on to look at a case and apply the facts and the evidence and apply the law to the evidence presented, that they would not follow the law, that they would not be faithful to their oath because their views would be so extreme, so outside the mainstream, so completely beyond what would be the norm or considered to be the norm. But here in this person we have a 17-year record. She has written thousands of opinions. These opinions provide the body of law of what she does as a judge--not what she said to a group of students one day, trying to encourage them in their lives and what they might be doing, not what someone might gain from reading an opinion that perhaps they would not agree with. It is not about whether we agree with her outcomes, it is whether her opinions were reasoned, whether they had a foundation in law, whether they were reasonable decisions, whether she reached them on the basis of law and evidence that are supported by sound legal thinking. Her worst critics cannot cite a single instance where she strayed from sound judicial thinking.

I believe she will serve as an outstanding Associate Justice to the U.S. Supreme Court, and she will be a terrific role model for many young people in this country.

Were I to have had my opportunity to pick, I may have chosen someone different than Judge Sotomayor. But that is not my job. I do not get to select judges. I get to give advice and consent. We sometimes confuse the role of the Senate. Elections have their consequences. Some of her writings and her statements indicate that her philosophy might be more liberal than mine, but that is what happens in elections.

When I was campaigning for my colleague and dear friend John McCain, I knew it was going to be important because there would be vacancies to the Court. I knew I would be much more comfortable with a nominee whom John McCain would nominate than one my former colleague and friend, President Barack Obama, might nominate. The President has the prerogative, the obligation, the responsibility to choose his own nominees. Our job is to give advice and consent.

The President has chosen a nominee, and my vote for her confirmation will
be based solely and wholly on relevant qualifications. Judge Sotomayor is well qualified. She has been a Federal judge for 17 years. She has the most experience of any person--on-the-bench judicial experience of any person--nominated for the Court in a century. In 100 years, there has not been anyone who has been on the bench with such a distinguished record for such a long period of time. That is why, by the way, her record is really her judicial decisions. We do not have to wonder. We do not have to sit around and try to divine whether someday she will answer the siren call to judicial activism, as I have heard someone say on the floor of the Senate. You do not have to wonder. You can wonder, and it might give you an excuse to vote against someone who is otherwise qualified, but the fact is, with a 17-year record, you should have a pretty good idea whether that siren call would have been answered by now. To my estimation, it has not been.

She received the highest possible rating from the American Bar Association for a judicial candidate--equal to that of Miguel Estrada, equal to that of Chief Justice Roberts, and equal to that of Justice Alito. She has been a prosecutor. She has been, throughout her career, an outstanding lawyer. As a prosecutor, she was a pretty tough one too. With less than a handful of exceptions, her 17-year judicial record reflects that while she may be left of center, she is certainly well within the mainstream of legal thinking.

Her mainstream approach is so mainstream that it has earned her the support of the U.S. Chamber of Commerce as well as the endorsement of several law enforcement and criminal justice organizations. She has been endorsed by the National Fraternal Order of Police, the National Sheriffs' Association, and the International Association of Chiefs of Police. I daresay she will be a strong voice for law and order in our country.

I disagree with Judge Sotomayor about several issues. I would expect to have disagreements with many judicial nominees of the Obama administration but probably fewer with her than some I might see in the future. Although I might disagree with some of her rulings, we know she has a commitment to well-reasoned decisions--decisions that seek, with restraint, to apply the law as written. I do believe she will rule with restraint. That has been her judicial history and philosophy. For instance, I believe her view as expressed in her panel's Maloney v. Cuomo opinion of whether the second amendment applies against State and local governments is too narrow and contrary to the Founders' intent. But I also know there is significant and well-reasoned disagreement among the Nation's appellate courts on this issue. In other words, it is not out of the mainstream. On this issue, I accept the idea that reasonable people may differ.

This debate raises critical and difficult issues regarding the role of federalism in the application of fundamental constitutional rights. But the confirmation process is not the proper place to relitigate this question, nor is Judge Sotomayor's judicial record on this issue outside the mainstream.

I believe her statements on the role of international law in American jurisprudence reflect a view that is too expansive. Yet her judicial record indicates that, in practice, she has given only limited, if any, weight to foreign court decisions. For example, in Croll v. Croll, a 2000 international child custody case involving the Hague Convention on International Child Abduction, Judge Sotomayor wrote a dissenting opinion in which she concluded that the holdings of the courts of foreign nations interpreting the same convention were ``not essential'' to her reasoning.

I believe some of the statements she has made in her speeches about the role of one's personal experience are inconsistent with the judicial oath's requirement that judges set aside their personal bias when making those decisions. There are several of my colleagues who say these statements demonstrate that Judge Sotomayor is a judicial activist in hiding. This assertion, however, is not supported by the facts. We can throw it out there, but it is not supported by the facts. The relevant facts--her 17-year judicial record--show she has not allowed her personal biases to influence her jurisprudence. They can talk about her speeches, but they cannot talk about a single solitary opinion in 17 years on the bench where that type of a view has been given life, where that type of a view has found itself into the pages of a single one of her opinions. I would rather put my trust and my expectations for the future on her 17-year record of judicial decisions than I would on one or two speeches she might have given over 10 or 15 years.

Those who oppose Judge Sotomayor have yet to produce any objective evidence that she has allowed her personal bias to influence her judicial decisionmaking. Moreover, in her testimony before the Judiciary Committee, she reiterated her fidelity to the law, that as a Justice she would adhere to the law regardless of the outcome it required.

So based on my review of her judicial record and her testimony before the Judiciary Committee, I am satisfied Judge Sotomayor is well qualified to sit on our Nation's highest Court.

I intend to vote for her confirmation. I intend to also be very proud of her service on the Supreme Court of the United States where I think, again, she will serve a very historic and unique role to many people in this Nation who I know will look to her with great pride.

Thank you, Mr. President. I yield the floor.

I suggest the absence of a quorum.

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