Today, U.S. Senator Arlen Specter (D-Pa.), member of the Senate Judiciary Committee, commented on the confirmation of Sonia Sotomayor to serve as an Associate Justice on the Supreme Court of the United States. The Senate voted 68 - 31 to confirm her.
"During the eleven confirmation proceedings I have participated in and others I have studied, I know of no one who brings a stronger record than Judge Sotomayor," Senator Specter said. "I am pleased to support her as she will make an excellent addition to the Supreme Court."
Yesterday Senator Specter delivered a detailed floor statement on Judge Sotomayor and other matters concerning the Supreme Court, including: the reality of judicial legislation, the emerging standard on rejecting the tradition of deference to the President, the Court's reduced workload and failure to decide major cases, and the strong case to be made for televising the Supreme Court.
The Senator's full floor statement is below:
Mr. President, I have sought recognition to comment about the confirmation of Judge Sotomayor for Associate Justice to the Supreme Court and to comment on other subjects directly related to the confirmation process and comment about the reality of judicial legislation, about the emerging standard on rejecting the tradition of deference to the President, with Senators' ideology being the determinant, the Court's reduced workload, the failure to decide major cases, the lack of public understanding of what the Court does, the need for accountability and transparency, and the strong case to be made for televising the Supreme Court.
For me, the confirmation of Judge Sotomayor is an easy one. During the 11 confirmation proceedings I have participated in and others I have studied, I know of no one who brings a stronger record than Judge Sotomayor: summa cum laude at Princeton, Yale Law School, Yale Law Journal, prestigious New York firm, assistant district attorney with DA Morganthau who sings her praises, 17 years on the Federal bench.
The criticisms which were made against her, my judgment is they were vacuous. A great deal of time in committee was spent on her comment about ``a wise Latina woman.'' My view is that she should have been commended for that statement, not criticized. Why do I say ``commend''? Why shouldn't a woman stand up for women's capabilities? In a society which did not grant women the right to vote until 1920, in a society which still harbors the tough glass ceiling limiting women, in a society where only two women have served on the Supreme Court, in a Senate where only 17 of the 100 Senators are women, I would expect a woman to proudly speak up for women's competency.
To talk about being a Latino, well, what is wrong with a little ethnic pride? And isn't it about time that we had some greater diversity on the Supreme Court? Isn't it surprising, if not scandalous, that it took until 1967 to have an African American on the Court, Thurgood Marshall, and it took until 1981 to have the first woman on the Court, Sandra Day O'Connor?
Judge Sotomayor is a role model and will be a broader role model if confirmed. The conventional wisdom is that she will be confirmed. Isn't there a greater assurance in a society as diverse as ours to have someone on the Court to represent that kind of diversity, all within the rule of law?
A criticism was made of her with respect to the New Haven firefighters case--very complex, very subtle, very nuanced on disparate impact. The Supreme Court divided 5 to 4. So what is there to criticize on Judge Sotomayor's standing for joining a per curiam opinion?
I asked a question of the New Haven firefighters who appeared: Do you have any reason to believe that Judge Sotomayor operated in anything but good faith? Both of the young firefighters candidly said they had no opinion on that subject.
Then there is the criticism about her conclusion, her judgment that second amendment rights are not incorporated within the 14th amendment due process clause to be applied to the States. That is the precedent of the Supreme Court of the United States. It is not up to a certain court to rule differently when they are bound by the Supreme Court, even if it is an old case.
The distinguished seventh circuit agreed with Judge Sotomayor. The argument was made well. The ninth circuit has said second amendment rights are applicable to the States.
Since the hearing, the court en banc in the ninth circuit has granted review of a decision by the three-judge panel with every indication that the three-judge panel in the ninth circuit will be reversed.
So when you add up all of the comments and all of the criticism, nothing, in my judgment, is left standing.
The issue of judicial legislation is one which occupied the thinking and consideration of a number of those who were opposed to Judge Sotomayor. But there is nothing in her record to suggest she will engage in judicial legislation.
When you take a look at the Supreme Court of the United States, that has become the rule of the era, as opposed to rule of law where the Court is supposed to interpret the Constitution and statutes and leave to the Congress and the State legislatures the job of establishing public policy.
During the era of the Warren Court, there was a vast expansion of constitutional rights. I was in the Philadelphia district attorney's office at the time and literally saw the Constitution change day by day. In 1961, Mapp v. Ohio came down applying the fourth amendment protection on search and seizure to the States. In 1963, Gideon v. Wainwright, right to counsel; 1964, Escobedo v. Illinois; 1966, Miranda. Those were constitutional rights and changing values as articulated by Justice Cardozo in Palko.
But in more recent times, there has been a vast expansion of the Supreme Court, in effect, legislating. I refer specifically to the case United States v. Morrison which involved the issue of the legislation protecting women against violence. Chief Justice Rehnquist handed down an opinion saying that the ``method of reasoning'' of the Congress was deficient. The dissents on that 5-to-4 opinion laid out the vast record which supported the legislation.
The Supreme Court has adopted a standard of judging constitutionality as to whether the statute satisfies congruence and proportionality, a standard which has emerged very recently. It defies understanding to quantify or figure out what congruence and proportionality means, except to give the Supreme Court carte blanche, in effect, to legislate.
Two cases interpreting the Americans with Disabilities Act went 5 to 4 in opposite directions between Titles I and II--one case holding one of them constitutional and the other was unconstitutional. Justice Scalia, dissenting in one case, characterized congruence and proportionality to be a flabby standard which, in effect, allowed the Court to legislate.
When Chief Justice Roberts appeared before the Judiciary Committee in response to questions from Senator DeWine and myself, he said it was up to the Congress to make findings of fact, that that was a peculiarly legislative function because it is the Congress which has the hearings, the ability to develop facts, and it is congressional responsibility.
Yet when the Voting Rights Act case was heard earlier this year, although decided on narrower grounds, every indication is being given that Chief Justice Roberts' assurances to the Judiciary Committee are being reversed and that the Court, from all indicators, is on the verge of declaring the Voting Rights Act as unconstitutional, notwithstanding the voluminous record which was created and the great care the Senate operated to come down with the voting rights legislation.
So when you have a criticism of the problem of judicial legislation, it is my view that you ought to look at what Judge Sotomayor has done in 17 years on the bench. And there is no indication at all of her substituting her values. But when you come to the Supreme Court of the United States, there is good reason to question what they are doing.
There is, simply stated, a lack of understanding as to what goes on in the Court.
The one comment I do have, other than full support for Judge Sotomayor, was her reluctance to answer questions. One question which I asked her is illustrative. Chief Justice Roberts, in his confirmation hearing, when confronted with the light workload of the Court, said that he thought the Court could take on more responsibility. I asked Judge Sotomayor if she agreed with that conclusion. Judge Sotomayor would not answer the question. She said she would have to be more fully familiarized, even though the statistics which I quoted to her about the Court's workload contrasted with 1886 when the Supreme Court decided 451 cases; in 1985, there were only 161 written opinions; in 2007, only 67 written opinions.
It seemed to me plain that the Court could undertake more work, as Chief Justice Roberts had agreed, during his confirmation hearings. But there has developed an attitude among nominees who appear before the Judiciary Committee that it is unsafe to answer questions because of what happened to Judge Bork.
As I have pointed out in committee, and it is worth repeating, it is a myth that Judge Bork was defeated because he answered too many questions. In the context of his writings and in the context of his record where he advocated original intent, it was necessary for Judge Bork to speak up. Judge Bork was rejected because he had a view of the Constitution which was totally outside the constitutional continuum or outside the constitutional mainstream.
For example, in his testimony, he said that the equal protection clause applied only to race and ethnicity, but would not be extended to women, aliens, indigents, illegitimates, or others, in line with the decisions of the Supreme Court of solid precedents on the application of the equal protection clause.
Judge Bork disagreed with the clear and present danger standard, established as far back as Justice Oliver Wendell Holmes.
When it came to his doctrine on original intent, he was at a loss to explain how you could desegregate the District of Columbia schools. On the same day that Brown v. Board of Education was decided, there was a companion case captioned Bolling v. Sharpe applicable to the District of Columbia. Judge Bork was of the view that there was no application of the due process clause; that you couldn't incorporate any of the 10 amendments and you couldn't incorporate the equal protection clause. But the Supreme Court desegregated the DC schools on the basis of holding that the equal protection clause was part of due process and due process did apply to the District of Columbia. Judge Bork was at a loss to answer that.
Mr. President, I ask unanimous consent to have printed in the Record a copy of an op-ed I wrote for the New York Times, dated October 9, 1987, which sets forth in some greater detail--which I do not have the time to go into now--the reasons why I voted against Judge Bork and I think the reasons why Judge Bork's nomination was defeated by the margin of 58 to 42 when it came before the Senate for a vote.
There being no objection, the material was ordered to be printed in the Record, as follows:
[From the New York Times, Oct. 9, 1987]
Why I Voted Against Bork
(By Arlen Specter)
From the day in mid-July when Judge Robert H. Bork stopped by for a courtesy call until I telephoned him last week to say I would oppose his nomination, my goal was to figure out what impact Judge Bork would have on the people who came to the Supreme Court in search of their constitutional rights. At the end, having come to like and respect Judge Bork, I reluctantly decided to vote against him, because I had substantial doubts about what he would do with fundamental minority rights, about equal protection of the law and freedom of speech.
From the beginning, it was evident that this nomination process would be different from most. The traditional courtesy call turned out to be much more because Judge Bork was willing--really anxious--to discuss his judicial philosophy. Unlike other nominees who had barely given name, rank and serial number, he enjoyed the exchange and doubtless figured that his extensive writings were so unusual that he would have to talk if he were to have any chance at confirmation.
Our first hour and a half meeting was interrupted by a Senate vote, so he returned a few weeks later for a similar session. In those discussions, I found a man of intellect and charm, who said, in essence, that his writings were academic and professorial and not necessarily indicative of what he would do on the Court.
During the August recess, when I had a chance to read many of his approximately 80 speeches, 30 law review articles and 145 circuit court opinions, I found a scholar and jurist whose views and opinions were vast and complex. In voting to confirm Chief Justice William H. Rehnquist and Justice Antonin Scalia last year, I had already decided that a nominee's judicial philosophy need not agree with mine. But I also believed that a nominee's views should be within the tradition of our constitutional jurisprudence. With that in mind, I compared Judge Bork's views with those of other conservative justices.
On freedom of speech, I was surprised to find that Judge Bork in his writings rejected Justice Oliver Wendell Holmes's standard of a ``clear and present danger,'' Chief Justice Warren Burger's notion of constitutional protection for commercial speech and Justice (now Chief Justice) Rehnquist's Court opinion protecting a sexually explicit (as distinguished from an obscene) movie from censorship.
In Judge Bork's earliest views, only political speech was to be protected. He later modified that to include literature and art that involved political discussion. In the confirmation hearings, I was even more surprised to find him change his position and commit himself to apply the Holmes test even though he continued his strong philosophical disagreement.
Judge Bork's views on equal protection of the law also underwent a major change at the hearings. He committed himself to apply current case law after having long insisted that equal protection applied only to race and, more recently, to ethnicity. His narrow position had put him at odds with Chief Justice Rehnquist and Justices Sandra Day O'Connor and Scalia, as well as 101 years of Supreme Court decisions that had applied equal protection to women, aliens, indigents, illegitimates and others.
These significant shifts raised questions about Judge Bork's motives and the depth of his convictions. But I felt he should have a full opportunity to explain his new positions because a person is entitled to change.
During a long Saturday session, I had an unusual opportunity to explore at length some troubling aspects of Judge Bork's jurisprudence. I was particularly concerned with his writings on ''original intent.'' He had maintained that judges had to base their opinions on the Framers' original intentions. Without adherence to original intent, he said, there was no legitimacy for judicial decisions. And without such legitimacy, there could be no judicial review.
But Judge Bork conceded during the hearings that original intent was often difficult, perhaps impossible, to discern. I feared that this approach could jeopardize the fundamental principle of constitutional law--the supremacy of judicial review. Although Judge Bork himself never went so far, some prominent political figures have suggested that the Supreme Court should not be the ultimate arbiter of constitutionality. Their cause--with which I deeply disagree--could be aided by a Justice who questioned the legitimacy of judicial review.
I had also been concerned by Judge Bork's insistence on ``Madisonian major i tar i an ism,'' the idea that, in the absence of explicit constitutional limits, legislatures should be free to act as they please. Conservative justices had traditionally protected individual and minority rights even without a specifically enumerated right or proof of original intent where there were fundamental values rooted in the tradition of our people.
Just this year, for example, Chief Justice Rehnquist and Justices O'Connor and Scalia had found a right in the Constitution for a prisoner to marry. But Judge Bork, at his confirmation hearing, could still find no acceptable rationale for the decision desegregating the District of Columbia schools 33 years ago.
I was further troubled by his writings and testimony that expanding rights to minorities reduced the rights of majorities. While perhaps arithmetically sound, it seemed morally wrong. The majority in a democracy can take care of itself, while individuals and minorities often cannot. Moreover, our history has demonstrated that the majority benefits when equality helps minorities become a part of the majority.
Despite these concerns, I was genuinely undecided--perhaps leaning a little toward Judge Bork--when he finished his impressive testimony at the end of the first week. He had conceded that there was a ``powerful argument from a strong tradition'' to find rights rooted in the conscience of the people, although not specified in the Constitution. He had also yielded to the ``needs of the nation'' on some constitutional matters that did not fall within the Framers' original intent. Perhaps his writings were only professorial theorizing.
As I listened to the other witnesses during the second and third weeks, and considered the implications of Judge Bork's total approach, my doubts grew about the application of his changed positions. For example, in Judge Bork's former view, which he last expressed 20 days before his nomination, equal protection should have been kept to concerns like race and ethnicity. Considering the many subtle and discretionary judgments involved, I felt it would be unfair to people who sought equal protection in the Supreme Court to have their cases decided by someone who had so long thought their claims unprotected by the Constitution under standards that were so elusive to apply.
Similarly, the hearings showed the great difficulty, if not impossibility, of Judge Bork's applying the ``clear and present danger'' standard to free speech cases. If there was a critical turning point, it was Judge Bork's responses regarding two cases.
The ``clear and present danger'' standard was restated by the Court in 1969, in Brandenburg v. Ohio, and again in 1973, in Hess v. Indiana. When Judge Bork committed himself to accepting Brandenburg, I pressed as to how we could be confident that he would apply that test to the next case, which obviously would be different on the facts. He promised he would, but then promptly insisted that he was not committed to Hess because it was an ``obscenity'' case.
Judge Bork's disagreement on Hess, a ``clear and present danger'' case, cast substantial doubt on his ability to apply cases he philosophically opposed and had long decried.
The hearings brought a record 140,000 calls and letters to my office. Wherever I went, it seemed that everyone had a strong opinion. The pressure was pervasive. On the afternoon the hearings ended, I talked again with Judge Bork for more than an hour, and met later that evening with Lloyd Cutler, the former adviser to Jimmy Carter, who had been a principal supporter. My substantial doubts persisted, so I decided to vote no.
Moving on to another subject, which perhaps is of the greatest importance of what we see emerging from these hearings and the confirmation proceeding, is an emerging standard on rejecting the traditional deference to the President, with Senators substituting their own ideology in order to make the decision.
In the article I referred to on Bork, in the op-ed piece, I noted that in voting as to Chief Justice Rehnquist and Justice Scalia, I decided the judicial philosophy of a nominee need not agree with mine. When the hearings came up as to Justice Clarence Thomas, I made the observation that there might be an occasion, one day, when there would be a partnership between the Senate and the President with respect to looking at ideology. It has become accepted that elections do matter when the President moves to the nominating process. They are active parts in the Presidential campaigns, and the tradition has been to make the deference to the President's ideology.
I suggest we are seeing, in the confirmation process of Judge Sotomayor, in conjunction with the nomination process of Justice Alito, that there is a shift in that standard and that judgment. The issue was framed by the comments of then-Senator Barack Obama now President Barack Obama when he was commenting about his judgment on the Alito nomination and then Senator Obama had this to say:
There are some who believe that the President, having won an election, should have complete authority to appoint his nominee and the Senate should only examine whether the Justice is intellectually capable.
Senator Obama went on to say:
I disagree with this view. I believe it calls for meaningful advice and consent, and that includes an examination of the judge's philosophy, ideology.
In the Alito hearings, there is no doubt that in terms of academic, professional, and judicial competence, Justice Alito was well qualified--a Yale law graduate with a distinguished career in private practice, serving as a U.S. attorney for New Jersey, with 15 years on the circuit court. Some concerns were expressed as to his ideology on his view of a woman's right to choose; his dissenting opinion in Planned Parenthood v. Casey in the Third Circuit. Only four Democrats crossed the aisle to vote for Justice Alito. Today, according to the announcements that have been made, about that many Republicans are going to cross the aisle to vote for Judge Sotomayor.
Some of those who have announced their intention to vote against Judge Sotomayor have long records for not having opposed any judicial nominee. It is a complex issue. There is a question of pressure from the far right, from those who might be looking at primary opposition. There is a question of partisanship, which has gripped this body with such intensity. But there is an overwhelming view that the approach of Judge Sotomayor and what she is likely to do on the Supreme Court is something which is contrary to their views as to when the matters ought to be decided.
It has long been accepted that you can't ask a Supreme Court nominee how he or she will decide a specific case, but there is an opportunity to glean from many factors the disposition or inclination of the nominees. And although many in this body had, for a long time, as I view it, made decisions based upon their own ideology, contrasted to what they accepted the nominee to do on the Court, I think that view has become crystallized and, as articulated by then-Senator Obama, is a view which has perhaps added weight now that it is President Obama.
Certainly, there are nominees whom I have voted for, if I were to have been the President and made the selection, it would have been different. If I were to have applied my own philosophy or ideology on the vote to confirm or not, it would have been different. When Judge Bork was so far out of the mainstream and had views so totally antithetical to the continuum of constitutional law--being out of the mainstream--it was different. But I think it is worth noting what is happening to the confirmation process, as Senators are moving to utilize their own ideology in deciding how to vote--illustrated, as I say, by Alito and the confirmation which we currently have--and not giving the traditional and customary deference to the President.
Moving on to the subject of the Court's reduced workload and the failure to decide major cases, in the context of the statistics which I cited--451 cases decided in 1886, 161 written opinions in 1985; the year 2007, only 67 signed opinions; the Supreme Court having decided not to hear the case involving the terrorist surveillance program, which posed a dramatic conflict between congressional authority under article I to enact the Foreign Intelligence Surveillance Act, with the President's asserted authority under article II as Commander in Chief to have warrantless wiretaps; the district court in Detroit declared the terrorist surveillance program unconstitutional. The Sixth Circuit reversed 2 to 1 on the grounds of standing--with the dissent being much better reasoned--a doctrine to avoid deciding the case and the Supreme Court denying cert. Similarly, on the conflict which was posed by litigation brought by the survivors of victims of 9/11 against Saudi Arabian princes, where the Congress had legislated in the Foreign Sovereign Immunities Act to exclude torts, as when you fly an airplane into the World Trade Center, the executive branch intervened. The Department of State objected through the Solicitor General to the court hearing the case, and that case was not decided. Many circuit splits, which are detailed in a series of letters which I am going to ask to be admitted into the Record, letters which I sent to Judge Sotomayor, dated July 7, June 15, and June 25, detailing a great many circuit splits which the Court has not decided.
Mr. President, when the Federalist Papers were written, the authors said that the Supreme Court was the least dangerous branch. I think if the Framers had seen the status of events in the year 2009, they might have written that the Supreme Court, the Supreme Court especially, was the least accountable branch--the least transparent branch.
For many years, I have urged that the Supreme Court be televised. Legislation which I have introduced has twice been voted out of committee, and it is pending again. I think this is an especially good time to take up the issue. The Congress has the authority to establish when the Supreme Court sits--the first Monday in October; what it takes to have a quorum; how many members there will be on the Court--contrast that to what President Roosevelt tried to do to expand the number to 15. We have authority on the timetable, under the Speedy Trial Act, to set time limits on habeas corpus, and it is my legal judgment that we have the authority to call on the Supreme Court to be televised.
The Supreme Court has the final word on that subject, as they do on all others, and could invalidate legislation on the grounds of separation of power. But in light of what is happening and the demand for greater transparency, the televising of the House, the televising of the Senate; the fact that recently the highest court in Great Britain has admitted television cameras, it is time that should occur.
With the departure of Justice Souter, assuming the confirmation of Judge Sotomayor, the major opponent to televising the Court will no longer be there. Justice Souter made the famous statement that the television cameras would roll in over his dead body. When the nominees have been questioned repeatedly, they have always been very concerned, almost to a person, about being solicitous of the views of others. I concede that Justice Souter's strong views might have been a considerable obstacle. Justice Stevens has said it is worth a try. Justice Ginsburg said it would be fine if it were gavel to gavel. Other Justices have been televised. It is worth noting that the Federal Judicial Conference authorized a 3-year pilot program for six Federal district courts and two Federal circuit courts of appeals. The Judicial Center concluded:
Overall, attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program. Judges and attorneys who had experience with electronic media coverage under the program generally reported observing small or no effects of camera presence or participants in the proceedings, courtroom decorum, or the administration of justice.
It is my suggestion it would be very healthy for our country to have a little sunshine come into the Supreme Court.
I think it would be very beneficial to have a little sunlight to come into the Supreme Court so there could be a public understanding as to how far the Supreme Court is going now on judicial legislation--that they are going beyond constitutional rights, that they are reaching into statutes such as the statute protecting women against violence, to declare it unconstitutional notwithstanding a voluminous record but based on the method of reasoning of Congress, as if our method of reasoning was deficient to theirs; or on the standard of congruence and proportionality, which is simply not understandable; or in the context of a workload which defies explanation, with so many circuit splits going undecided.
It may surprise people to know that it was not until 1981 that the Judiciary Committee proceedings on nominations were televised. Seeing what a great appearance it is today, and of how much value--this is really our only opportunity to speak to the Court, to speak to Chief Justice Roberts. Are you going back on your commitment that it is up to the Congress to decide facts on a congressional record? Why are you doing congruence and proportionality when no one understands it?
So while the judgment on Sonia Sotomayor, as I said initially, was easy for me to vote aye, there are many more perplexing issues that have emerged, especially what I perceive to be an institutional change here, with Senators substituting their own judgments and ideology for the traditional deference allotted to the President.
Before I yield the floor, Mr. President, I have been asked to read an addendum statement, if I may? It is an introduction for a letter from members of the Supreme Court bar in favor of Judge Sotomayor:
The Committee recently received a letter of support for Judge Sotomayor's nomination from over 45 regular practitioners at the Supreme Court including a number of former Solicitors General and Assistants to the Solicitor General. Among those who joined this letter are a number of highly respected Republican appointees such as Charles Fried, nominated by President Reagan to be Solicitor General; John Gibbons, the former Chief Judge for the Third Circuit Court of Appeals who was nominated by President Nixon; and Tim Lewis, nominated by President George H.W. Bush and confirmed as a Judge for the Third Circuit Court of Appeals