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Public Statements

Executive Session

Floor Speech

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - August 06, 2009)


Mr. KERRY. Mr. President, I rise to express my support for the nomination of Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court.

Her career on the Federal bench, from the Southern District Court in New York to the Second Circuit Court of Appeals, and her personal journey, from a childhood in a housing project in the Bronx, to honors at Princeton University and Yale Law School, are now well known to everybody in the country.

But one of the things that received a small amount of attention in her confirmation hearing are the 5 years--right out of law school--she spent as a prosecutor in the office of legendary Manhattan district attorney Robert Morgenthau. It is a reflection of Sonia Sotomayor's grit, determination, and courage that she took on this challenge at that particular time to serve as an assistant district attorney during one of the most crime-laden periods of New York's history.

It is not often we get a chance to elevate to the Nation's highest Court someone who has followed police into shooting galleries, someone who has tracked down witnesses on streets awash in drug-related violence, and someone who has personally taken on witnesses and shredded some of them on cross-examination, and who has personally moved juries to tears in her closing arguments.

It is not often we get a chance to confirm a Supreme Court nominee who does not come from what Chairman Pat Leahy likes to call the ``judicial monastery.'' But rather we have a chance to confirm someone who has the personal experience, perspective, and understanding of how the world works within our system of law as a practitioner and also having seen what it is like for those who try to enforce the law at the street level, our police, our law enforcement officials, and also in seeing what happens to victims and families drawn into the system unwillingly.

Judge Sotomayor certainly was not in a ``judicial monastery'' when she was undertaking the task of putting criminals behind bars in New York. I believe experience will prove of enormous value to somebody on the Supreme Court--someone who can go there understanding what it means to work 12-hour days as a prosecutor struggling to put together a case with reluctant witnesses, with police who have a difficult time coming to the courthouse, and, obviously, with experience in interpreting the fifth amendment, fourth amendment rights with respect to search and seizure and personal incrimination.

One of her cases, in particular, stands out, which is the 1983 so-called Tarzan Murderer case, involving a man who broke into apartments, sometimes by swinging from rooftops, robbing the residents, and then shooting them for no apparent reason. It was Judge Sotomayor's first homicide case and also her first homicide conviction. The defendant, Richard Maddicks, went to prison for 62 1/2 years.

Judge Sotomayor said the case affected her as no other; that it underscored for her how crime destroys families and how prosecutors ``must be sensitive to the price that crime imposes on our society.'' I believe, having been a prosecutor, those are lessons I learned also firsthand and did not come automatically to the bar with a sensitivity to.

As much as I admire her work as a New York prosecutor, that experience alone, obviously, does not qualify her for confirmation to the Supreme Court. But I think it is an important experience, and it says a lot about her approach to the law and what she is willing to fight for.

There are, obviously, few things we do that are as important as confirming a Supreme Court Justice, and especially now with the Court so evenly divided. So this is a pivotal moment for the Court. The direction our country will take for the next 30 years is being determined now by this debate.

A vote for a Supreme Court nominee is a vote for each of our personal understandings of the Constitution, of the laws of the land, and of what we think is important with respect to the application of the rights and freedoms that define this country of ours. That is what this vote is. It is a vote to protect the basic rights and freedoms that are important to every American, and I would say, particularly, privacy, equality, and justice.

Consider, for example, the case of Lilly Ledbetter and Diana Levine as an example of how just one Supreme Court appointment can affect the lives and freedoms of countless Americans. In the Ledbetter case, five of the Court's nine Justices granted immunity to employers who discriminate against workers in matters of salary. It took a new Congress and a new President to strike down the Court's ruling in the continuing effort to ensure that all Americans--women and men--receive equal pay for equal work.

I have voted for Supreme Court nominees in the past, when it was clear to me they would protect those constitutional rights and freedoms. And I have voted against Supreme Court nominees, when it was clear to me they would not protect those rights and freedoms.

So we have to ask ourselves: What direction will this nominee take the Supreme Court? Will this nominee protect the civil rights and liberties enshrined in the Constitution and protected by law that we have fought for so long and hard? Will this nominee support Congress's power to enact critical legislation--sometimes defining those rights? Will the nominee be an effective check on the executive branch?

As a Senator, each of us has a right--not just a right, but an obligation, a duty--to protect the fundamental rights that are part of our Constitution. I think part of that means we have to preserve the incredible progress we have made with respect to civil rights and realizing those rights.

Having reviewed Judge Sotomayor's extensive record, and having read some of her more important rulings, I have concluded that she will do exactly that, she will protect them. She is someone who understands what sets America apart from almost every other country is the right of any citizen--no matter what level they are at, in terms of their work, employment or pay, income, status--that no matter where they come from, no matter what is their lot in life, they have a right to have their day in court. Recently, in this country, over the last 15 or 20 years, we have seen those rights reduced, in some cases. We have seen the access of average citizens to the courts of America diminished.

I believe Judge Sotomayor understands the real world, and how important it is to preserve that relationship of an individual citizen to access to the courts.

It took a Supreme Court that understood the real world to see that the doctrine of ``separate but equal'' was anything but equal and, therefore, to break the Constitution out of the legal straightjacket it found itself in. I believe Judge Sotomayor meets the standard that was set by Justice Potter Stewart, who said:

The mark of a good judge is a judge whose opinions you can read ..... and have no idea if the judge is a man or a woman, Republican or Democrat, Christian or Jew ..... You just know that he or she was a good judge.

For the last 17 years, she has applied the law to the facts in the cases she has considered, while always cognizant of the impact of her decisions before the court. I think she showed restraint, but she also showed fairness and impartiality in performing her duties under the Constitution.

I believe, though, it is clear her years as a prosecutor prepared her for the Federal bench in ways that few jurists get to experience. After that she spent nearly 6 years as a district court judge and almost 12 years on the appellate court demonstrating a very sophisticated grasp of legal doctrine and earning a reputation as a sharp and fearless jurist.

Courage is one of the qualities that Judge Sotomayor's colleagues and friends often attribute to her. One of those colleagues who ought to know these things was her one-time boss and, I might add, somebody whom, when I was a prosecutor, we modeled much of what we did in Massachusetts on his approach to the New York District Attorney's Office, and that is Robert Morgenthau. He said she was a ``fearless prosecutor'' and ``an able champion of the law.'' The police with whom she worked so closely felt the same way. That is why her nomination to the Supreme Court has been endorsed by nearly every major law enforcement organization in the country.

As a district court judge, she showed just how fearless she could be when, in 1995, she ended the Major League Baseball strike with an injunction against the league's powerful owners. All of her actions on the district court were important.

Of all her actions on the district court, that was one of my favorites. Some experts suggested that she had saved baseball and, in doing so, she had, as Claude Lewis of the Philadelphia Inquirer wrote, ``joined the ranks of Joe DiMaggio, Willie Mays, Jackie Robinson and Ted Williams.'' I am not sure I would go as far as Ted Williams, but Judge Sotomayor's actions did get the Red Sox back on the field at Fenway Park.

It is interesting to me that Judge Sotomayor would bring more Federal judicial experience to the Supreme Court than any Justice in the last 100 years. That is a fact her critics conveniently ignore.

In fact, she would bring more Federal judicial experience to the high court--more that 17 years all totaled--than any of the current associate justices.

Chief Justice Roberts came to the court with just 2 years on the Federal bench, Justice Alito 16 years, Justice Scalia 4 years, Justice Thomas 1 year, Justice Kennedy 13 years, Justice Ginsburg 13 years, Justice Souter 1 year, Justice Brennan and Justice Breyer zero years.

As we all know, Judge Sotomayor would be the first Latina to serve on the Supreme Court, just as she was the first Latina on the Second Circuit Court of Appeals. Much was made of this after her nomination by President Obama. And rightly so.

Judge Sotomayor is a role model of aspiration, of discipline, of commitment, of intellectual prowess and integrity. Her story is an American story, a classic American story, an inspiring American story.

How could anyone not be moved by the sight of Judge Sotomayor's mother, Celina, wiping away tears as the Judge paid loving tribute to her during her confirmation hearing? How could anyone not celebrate the journey that is the Judge's life story? An improbable journey, an extraordinary journey, a uniquely American journey.

We should not underestimate the importance of the diversity Judge Sotomayor will bring to the Supreme Court. People from different backgrounds bring different perspectives to bear on decisions, and that produces better decisions. That is especially important for the Supreme Court, which is, after all, the ultimate champion of the rule of law and protector of rights in America.

How important is diversity? The Supreme Court recently decided a case and found that school officials violated the fourth amendment rights of a young girl by conducting an intrusive strip search of her underclothes while looking for the equivalent of a pain killer. During oral arguments in that case, one of the male Justices compared the search to changing for gym clothes. Several other Justices laughed, but Justice Ruth Ginsburg, the lone female on the court, pointed out how ``humiliating'' such a search is to young girls.

I know that the Judge's critics claimed that she would rely on ``empathy'' rather than the law when deciding cases. But during her confirmation hearing, she made clear her commitment to the rule of law. ``Judges can't rely on what's in their heart,'' she testified. ``They don't determine the law The job of the judge is to apply the law. And it's not the heart that compels conclusions in cases. It's the law.''

She, in fact, has never used the word ``empathy'' in any of her decisions in more than 3,000 cases or the nearly 400 opinions she has written. Nor has she ever used it to describe her judicial philosophy in any speech or article. Her decisions have been based on established precedent and a respect for the limited role of a judge.

But every judge, even Supreme Court Justices, are shaped by the experiences of their lives.

One recent Supreme Court nominee testified before the Senate Judiciary Committee that he would bring to the court ``an understanding and the ability to stand in the shoes of other people across a broad spectrum.'' That was Justice Clarence Thomas.

Another acknowledged being influenced by the fact he came from a family of immigrants. ``When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account,'' he said. That was Justice Samuel Alito.

Another touted his status as a racial minority in expressing his commitment to a society without discrimination. ``I am a member of a racial minority myself, suffered, I expect, some minor discrimination in my years,'' he said. That was Justice Antonin Scalia.

I don't know why anyone would think gender and ethnicity do not inform one's worldview. How could it be otherwise? ``We're all creatures of our upbringing,'' Justice Sandra Day O'Connor once observed.

So, too, is Judge Sotomayor. But that does not mean she will not judge fairly. There is nothing in her long career to suggest otherwise. Above all, in fact, Judge Sotomayor will bring to the court a keen legal mind to the court and an extraordinary record of following, defending and upholding the rule of law.

It is no wonder that she earned a ``well qualified'' rating from the American Bar Association, the highest rating available in the ABA's evaluation of Federal judicial nominees' credentials, a process the organization of legal professionals has conducted for more than 50 years.

Our Nation's highest court will certainly benefit from Judge Sotomayor's scholarship, her years on the Federal bench and the uniquely American aspects of her life.

But as I noted earlier, the High Court's Justices will also benefit from Judge Sotomayor's years as a prosecutor, from having someone among them who has been on the front lines in the fight against chaos and violence of the city, someone who has seen up close the awful toll crime exacts on its victims, someone who has stared down evil and who has sent the most evil to prison for life.

Judge Sotomayor's experience on the bench and her experiences in life have given her a keen sense of compassion and an unique understanding of everyday Americans--qualities that will serve her well as an Associate Justice of the U.S. Supreme Court, qualities that will serve our country well in the Court's deliberations.

It is clear she understands that our Nation is defined by the great struggle of individuals to earn and protect their rights.

I believe Judge Sotomayor will protect those rights, which did not come easily--access to the court house and the school house, civil rights, privacy rights, voting rights, antidiscrimination laws, all the result of bloodshed and loss of life, all written into law in a fight, all requiring constant vigilance to make sure they are enforced and maintained.

Do I overstate the importance of vigilance? Hardly. Just a few short months ago, the Court heard oral arguments in a case challenging the constitutionality of the reenacted Voting Rights Act. The act remained intact. But the fact that the Court heard the case is cause for concern that even a slight shift in the makeup of the Court could weaken or undo laws that protect the rights and well being of the American people.

It was the late Dr. Martin Luther King Jr. who said that ``the arc of the moral universe is long, but it bends toward justice.'' I believe Judge Sotomayor's nomination to the Supreme Court--indeed, her entire career, as a prosecutor, as a district judge, as an appeals court judge--is part of that arc bending toward justice.

Mr. President, I proudly support her nomination and urge all my colleagues to do the same. A vote to confirm Judge Sotomayor will be a high mark in the history of the Senate and in the history of this country.

Mr. President, on behalf of Senator Leahy, I ask unanimous consent that a letter and statement of support for the nomination of Judge Sotomayor to be a Justice of the U.S. Supreme Court from the Lawyers' Committee for Civil Rights Under Law be printed in the Record.

There being no objection, the material was ordered to be printed in the Record, as follows:


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