EXECUTIVE SESSION -- (Senate - August 05, 2009)
BREAK IN TRANSCRIPT
Mr. KYL. Mr. President, every American should be proud that a Hispanic woman has been nominated to serve on the Supreme Court. In fulfilling our advice and consent role, of course, Senators must evaluate Judge Sotomayor on her merits, not on the basis of her ethnicity.
As I noted at the beginning of Judge Sotomayor's hearing, she has a background that creates a prima facie case for confirmation. She graduated from Princeton University and Yale Law School and then was an assistant district attorney, a corporate litigator, a district court judge, and a circuit court judge.
This background led the American Bar Association to rate her ``Well Qualified.'' My counterpart on the Democratic side, Senator Durbin, has said, ``The burden of proof for a Supreme Court Justice nominee is on the nominee. ..... No one has a right to sit on the Supreme Court. ..... It is not enough for a nominee to be found well qualified by the American Bar Association.''
It is obvious that the Senate cannot just rubberstamp the ABA. This is why we conduct our own evaluation of the nominee's background and record and then attempt to resolve outstanding questions at her hearing.
In evaluating a nominee, it is, of course, important to look at all aspects of the person's career. The nominee's prior judicial opinions are obviously an important consideration in this process. A lower court judge who issues judicial opinions that are outside the mainstream will, in all likelihood, continue to issue opinions that are outside the mainstream if promoted to a higher court.
But even judicial opinions do not tell us the entire story, especially when we are considering a nominee to the Supreme Court. District and appellate court judges operate under the restraining influence of judicial review. They have a strong incentive to avoid aberrant interpretations of the law, otherwise they risk embarrassment if cases are appealed to a higher authority. This check disappears, however, when a judge becomes a justice on the Supreme Court. There is no higher authority to reign in a lifetime-appointed Justice who decides, for whatever reason, to adopt a strained interpretation of the law.
Nor will a nominee generally be very specific about how he or she may rule on matters that could come before the Court.
So it is important to examine anything else in a nominee's background that could shed light on how the nominee really thinks about important issues. One source of information is a nominee's extrajudicial statements in speeches and writings. In these contexts, the nominee is not constrained by facts of particular cases, by precedents or the fear of appellate reprimand, but can say what he or she really thinks.
Before Judge Sotomayor's hearing, I studied not only her cases, but her extrajudicial writings, and a fraction of her speeches. I say a ``fraction'' because Judge Sotomayor was either unable or unwilling to provide a draft, video, or a sufficient topic description for more than 100 of the speeches that she identified for the Judiciary Committee.
But even with less than a full complement of her relevant materials, I saw a number of things in Judge Sotomayor's decisions and speeches that caused me to have great concern about her ability to put aside her biases and to impartially render a decision to the parties before her.
As I will explain, Judge Sotomayor's appearance before the Judiciary Committee did little to dispel my concerns. In many cases, her testimony exacerbated them.
I was and remain particularly troubled by Judge Sotomayor's speeches about gender and ethnicity. The speech that has garnered the most attention is, of course, her ``wise Latina woman'' speech, which was published in the Berkeley La Raza Law Journal. As it turns out, Judge Sotomayor delivered this same speech, with only minor variations, on multiple occasions over the course of several years.
In reading these speeches in their entirety, it is inescapable that her purpose was not simply ``to inspire young Hispanic, Latino students, and lawyers,'' as she asserted at her hearing. In fact, as she said at the beginning of several of these speeches, her purpose was to talk about ``my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.''
Judge Sotomayor reemphasized this theme later in her speeches. She said: ``The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go, but instead to discuss ..... what ..... it will mean to have more women and people of color on the bench.''
She continued: ``[N]o one can or should ignore pondering what it will mean or not mean in the development of the law.'' In these speeches, she cited statements of some who had a different point of view than hers. Then she came back to her overriding theme: ``I accept the proposition that, as Judge Resnik describes it, `to judge is an exercise of power,' and because as ..... Professor Martha Minnow of Harvard Law School states `there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging. .....' ''
I believe judges must seek objective truth as found in the law of the case. I do not believe in judicial relativism, so I find her comment alarming. The essence of judging is neutrality. That is why Lady Justice is depicted with a blindfold. And that is why Federal judges are required to swear an oath to ``administer justice without respect to persons, and do equal right to the poor and to the rich'' and to ``faithfully and impartially discharge all of the duties incumbent on [her].'' That oath makes no allowance for a judge to choose the result based on his or her ``perspective.'' The oath requires exactly the opposite: a dispassionate adherence to impartiality and the rule of law.
Now, back to Judge Sotomayor's speech. After agreeing with law professors who say that there is no objective stance, only a series of perspectives, no neutrality, Judge Sotomayor then said, ``I further accept that our experiences as women and people of color will in some way affect our decisions. ..... What Professor Minnow's quote means to me is not all women or people of color, in all or some circumstances, or me in any particular case or circumstance, but enough women and people of color in enough cases will make a difference in the process of judging. Judge Sotomayor is talking here about different outcomes in cases based upon who the judge is. She goes on to substantiate her case by citing an outcome in a State court father's visitation case and two studies, which tended to demonstrate differences between women and men in making decisions in cases. She said, ``As recognized by legal scholars, whatever the reason, not one woman or person of color in any one position, but as a group, we will have an effect on the development of law and on judging.'' She continued: ``our gender and national origins make and will make a difference in our judging.''
To recap: Judge Sotomayor announced her topic, developed the theme, refuted the arguments of those with a different view, and substantiated her point of view with some evidence. Up to this point, she had made the case that gender or ethnicity will have an impact on the way judges decide cases. She had not rendered a judgment about whether this influence would provide better outcomes from her perspective.
This is the context of the ``wise Latina'' comment. Judge Sotomayor quoted Justice O'Connor who said that a wise old woman and a wise old man would reach the same decisions. But, Judge Sotomayor said, ``I am also not sure I agree with that statement....... I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn't lived that life.''
Judge Sotomayor concluded, in other words, that, not only will gender and ethnicity make a difference, but that they should make a difference. She then acknowledged that some White male judges had made some good decisions in the past, but seemed to complain that it took a lot of time and effort, something that not all people are willing to give, and so on.
Judge Sotomayor concluded by saying, ``In short, I accept the proposition that a difference will be made by the presence of women and people of color on the bench and that my experiences will affect the facts that I choose to see as a judge.'' Judge Sotomayor added, ``I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on gender and my Latina heritage.''
Even if the point of her speech was just to inspire young people or even to explore the question of whether judges could be influenced by their background, she should not have simply ``accepted'' that result. To conclude that judges could not avoid being so influenced and then not admonish that, of course, a judge must try his or her best to avoid that result, to try to set aside any bias and prejudice, was to abdicate her role as a judge in teaching her audiences.
Never, not once, in her speech, did she say that the biases she discussed were harmful to impartial judging and needed to be set aside. Instead, Judge Sotomayor's speeches seem to be celebrating these differences, these biases. The clear and unmistakable inference in her speeches is that she embraces the fact that minorities and women will reach a different outcome, indeed, a ``better'' outcome.
Before the Judiciary Committee, Judge Sotomayor refused to recant the speeches or acknowledge this egregious omission. But she did try desperately to convince committee members that her words conveyed a message other than the obvious one. Indeed, according to Judge Sotomayor, her words conveyed the exact opposite meaning. She said: ``I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome.'' I've read the speeches in their entirety many times, and have verified that that is most certainly not what she was ``talking about.''
Judge Sotomayor's recharacterization of her speeches before the Judiciary Committee sounds like the objective, neutral approach that her speech explicitly dismissed. It is hard to understand how the same person could honestly make both statements. They are irreconcilably antithetical.
Further examples abound, but for the sake of time I will offer only one more. When Judge Sotomayor tried to explain her disagreement with Justice O'Connor's statement about how a wise old man and a wise old woman would reach the same conclusions, she said: ``The words that I used, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey.'' That's not true. Her explanation strains credulity. Both as to whether she really believes judges should try to set aside biases, including those based on race and gender, and the basic element of judicial temperament, forthrightness and fidelity to the oath of truth she took before the Judiciary Committee, I conclude she did not carry the very low burden of proof.
I also would like to discuss another of Judge Sotomayor's speeches, an address to the Puerto Rican ACLU on the subject of foreign law. But first, I should take a moment to explain why this issue is so critical.
There is a growing school of thought among some academics, and even some judges, that foreign law and practices should be used as an aid to understanding and interpreting our own laws and Constitution. This is problematic for two main reasons.
First, as Chief Justice John Roberts pointed out during his confirmation hearing, the consideration of foreign law by American judges is contrary to principles of democracy. Foreign judges and legislators are not accountable to the American electorate. Using foreign law, even as a thumb on the scale, to help decide key constitutional issues devalues Americans' expressions through the democratic process. It is simply irrelevant, except in a very few specific situations.
Second, even if the use of foreign law were not inconsistent with our constitutional system, its use would free judges to enact their personal preferences under the cloak of legitimacy.
Against this backdrop, Judge Sotomayor delivered her April 28, 2009, speech entitled, ``How Federal Judges Look to International and Foreign Law Under Article VI of the U.S. Constitution.'' From that speech, we begin to see how foreign law could shape Judge Sotomayor's jurisprudence in the future. Her comments were not casual observations, but directed to this specific topic, and, presumably says what she means.
After conceding that judges ``don't use foreign or international law'' as binding precedent in a case, she nonetheless maintained that foreign law could, and should, be ``considered.'' In Judge Sotomayor's view, foreign law
is a source for ``good ideas'' that can ``set our [i.e., judges'] creative juices flowing.'' Putting aside for a moment the fact that deciding an antitrust case, or a commerce clause dispute, or an Indian law issue, or an establishment of religion case does not require ``creative juices,'' Judge Sotomayor's suggestion that judges consider foreign law would interfere with specific rules of construction or application of precedent.
Judge Sotomayor went on in this same ACLU speech to distance herself from two sitting justices who are critical of judges considering foreign law and align her views with those of Justice Ginsburg who recently endorsed the use of foreign law at a symposium at the Moritz College of Law at Ohio State University.
Specifically, Judge Sotomayor stated that ``[t]he nature of the criticism comes from ..... the misunderstanding of the American use of that concept of using foreign law. And that misunderstanding is unfortunately endorsed by some of our own Supreme Court justices. Both Justice Scalia and Justice Thomas have written extensive criticisms of the use of foreign and international law in Supreme Court decisions. .....''
She continues: ``I share more the ideas of Justice Ginsburg in thinking ..... that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world. Justice Ginsburg has explained very recently ..... that foreign opinions ..... can add to the story of knowledge relevant to the solution of a question. And she's right.
Judge Sotomayor's rationale for judges looking to foreign law--so that the United States does not ``lose influence in he world''--is astonishing. Not only is such an approach irrelevant to the role of judges, vis-a-vis the other branches of government, and arguably usually irrelevant even for the President and Congress as a yardstick with which to measure U.S. domestic and foreign policy, it is totally irrelevant to the considerations for deciding any particular dispute between two parties.
In response to questions from committee members concerned about these kinds of statements, Judge Sotomayor again tried to drastically recharacterize her prior statements. She testified that her speech was quite clear that ``foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.'' But in April of this year, Judge Sotomayor said, ``ideas are ideas, and whatever their source, whether they come from foreign law or international law, or a trial judge in Alabama, or a circuit court in California, or any other place, if the idea has validity, if it persuades you, then you are going to adopt its reasoning.'' These two statements cannot be squared, even though they occurred just 2 1/2 months apart.
Later in her hearing, Judge Sotomayor gave the following testimony: ``I will not use foreign law to interpret the Constitution or American statues. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.'' While this kind of declarative statement would normally provide some measure of comfort, it is belied by words Judge Sotomayor uttered less than 3 months ago, that judges were ``commanded'' to look to ``persuasive'' sources, including foreign law, in interpreting our own law. And it is even inconsistent with an exchange Judge Sotomayor had with Senator Schumer earlier in the hearing, in which she agreed that foreign law could be used for the same purposes as traditional interpretive tools, such as dictionaries.
It gives me great pause that Judge Sotomayor could say one thing at a public speech earlier this year and say the opposite while under oath before the Judiciary Committee, especially since she never repudiated her speech.
Finally, when Judge Sotomayor had an opportunity to reflect upon her testimony, review the transcript, and correct the record, she reverted to her former position by spinning the meaning of the word ``use.''
Specifically, as I just noted, in her hearing before the Senate Judiciary Committee, Judge Sotomayor testified under oath that ``foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.'' In written answers submitted for the record she wrote, ``In my view, American courts should not `use' foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. Reading the decisions of foreign courts for ideas, however, does not constitute `using' those decisions to decide cases.''
So we are back to ``considering,'' but not ``using.'' Or is it, using as ideas, but not binding precedent? And if so, of what use are ideas if not used in some way? And if used in some way, could they influence the decision? I am totally baffled how she could consider foreign law as a source of ideas consistent with her testimony that foreign law should not influence the outcome of cases. Effectively, immediately after the hearing, she rescinded her sworn testimony regarding foreign law.
Judge Sotomayor's supporters argue that we should not focus on her speeches, but on her ``mainstream'' judicial record. They cite all manner of statistics that purport to show that Judge Sotomayor agreed with her colleagues, including Republican appointees, the vast majority of the time. That may be true; but, as President Obama has reminded us, most judges will agree in 95 percent of all cases. The hard cases are where differences in judicial philosophy become apparent.
I have looked at Judge Sotomayor's record in these hard cases and again have found cause for concern. The U.S. Supreme Court has reviewed directly ten of her decisions--eight of those decisions have been reversed or vacated, another sharply criticized, and one upheld in a 5-4 decision. Indeed, just in the past 4 months, the Supreme Court has reversed Judge Sotomayor's panels three times. That does not inspire confidence.
The most recent reversal is a case in point. In Ricci v. DeStefano, a case where Judge Sotomayor summarily dismissed before trial the discrimination claims of 20 New Haven firefighters, the Supreme Court reversed 5-4, with all nine Justices rejecting key reasoning of Judge Sotomayor's court. But in my view, the most astounding thing about the case was not the incorrect outcome reached by Judge Sotomayor's court; it was that she rejected the firefighters' claims in a mere one paragraph opinion and that she continued to maintain in the hearings that she was bound by precedent that the Supreme Court said didn't exist.
As the Supreme Court noted, Ricci presented a novel issue regarding ``two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the court of appeals discussing the issue.'' One would think that this would be precisely the kind of case that deserved a thorough and thoughtful analysis by an appellate court.
But Judge Sotomayor's court instead disposed of the case in an unsigned and unpublished opinion that contained zero--and I do mean zero--analysis. This is confounding given Judge Sotomayor's Judiciary Committee testimony, in which she said: ``I believe my 17-year record on the two courts would show that in every case that I render, I first decide what the law requires under the facts before me, and that what I do is explained to litigants why the law requires a result. And whether their position is sympathetic or not, I explain why the result is commanded by law.''
Because her initial decision was unpublished, the case--and the firefighters' meritorious claims--would have been swept under the rug and lost forever if not for fellow Second Circuit Judge Jose Cabranes, who read about the firefighters' case in a local newspaper, the New Haven Register.
Judge Cabranes looked into the situation, recognized the importance of the case, and requested that the entire Second Circuit, including judges who were not involved in the original decision, rehear the case. By a vote of 7-6, the Second Circuit denied rehearing the case, with Judge Sotomayor providing the seventh and decisive vote to avoid further consideration of her panel's decision. Fortunately for the firefighters, Judge Cabranes wrote a blistering dissent that no doubt caught the attention of the Supreme Court. He charged that Judge Sotomayor and her panel had ``failed to grapple with the questions of exceptional importance raised in this appeal.''
Some have speculated that the Judge Sotomayor's panel intentionally disposed of the case in a short, unsigned, and unpublished opinion in an effort to hide it from further scrutiny. Was the case intentionally kept off of her colleagues' radar? Did she have personal views on racial quotas that prevented her from seeing the merit in the firefighters' claims? Was it is merely coincidence that the standard adopted by Judge Sotomayor--which in the Supreme Court's words ``would encourage race-based action at the slightest hint of disparate impact'' and would lead to a ``de facto quota system''--was consistent with policy and legal positions advocated by the Puerto Rican Legal Defense and Education Fund, an organization with which she was intimately involved for 12 years? In repeated speeches through the years, Judge Sotomayor said, ``I ..... accept that our experiences as women and people of color affect our decisions.'' Was this such a case?
Judge Sotomayor was asked about her Ricci decision at length during the confirmation hearing. Her defense was that she was just following ``established Supreme Court and Second Circuit precedent.'' The problem with this answer is that Ricci presented a novel question for which there were no Supreme Court precedents squarely on point. Indeed, the Supreme Court noted that there were ``few, if any'' circuit court opinions addressing the issue.
During the hearing, I pressed Judge Sotomayor to identify those controlling Supreme Court and Second Circuit precedents that allegedly dictated the outcome in Ricci. Rather than answer the question, she dissembled and ran out the clock. Perhaps that was because, as Judge Cabranes's dissent stated, the ``core issue presented by this case--the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants--is not addressed by any precedent of the Supreme Court or our Circuit.'' But even if we accept Judge Sotomayor's contention that there was some relevant Second Circuit precedent, it is quite clear that such cases would not bind her or other judges in considering en banc review. It is telling that even the Obama Justice Department found her legal position impossible to defend. It filed a brief in the case asking the Supreme Court to vacate and remand the case for further proceedings, essentially what the dissent favored, as well.
The truth is that we will never know the reasons that guided the outcome of the case. But we know, at the very least, that Judge Sotomayor exercised poor judgment in dismissing serious claims in an unsettled area of the law without engaging in an analysis of the issues. As Judge Cabranes wrote in dissenting from the denial of rehearing en banc: ``The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled.''
Clearly, Judge Sotomayor did not adequately explain to the litigants--or the Judiciary Committee--why the law required the result she supported. And she cast the decisive vote to ensure that the full circuit court could not review the case. Is this the kind of behavior we should expect of a judge who is seeking a promotion to the Supreme Court?
Finally, if I had been a litigant before her court and Judge Sotomayor had asked me the questions I asked her about Ricci, and had I ``answered'' them as she responded to me in the hearing, she would rightly have told me to either sit down or start answering her questions. Her ``answers'' answered nothing and, in my opinion, violated her obligation to be forthcoming with the Judiciary Committee
Ricci is not the only Judge Sotomayor decision that gives reason to question her commitment to impartial justice. I am concerned about her analysis--or lack thereof--in Maloney v. Cuomo, a second amendment case that could find its way to the Supreme Court next year. Maloney was decided after the Supreme Court's landmark ruling in District of Columbia v. Heller, which held that the right to bear arms was an individual right that could not be taken away by the Federal Government.
In Maloney, Judge Sotomayor had the opportunity to consider whether that individual right could also be enforced against the States, a question that was not before the Heller court. In yet another unsigned opinion, Judge Sotomayor and two other judges held that it was not a right enforceable against States.
What are the legal implications of this holding? State regulations limiting or prohibiting the ownership and use of firearms would be subject only to ``rational basis'' review.
As Sandy Froman, a respected lawyer and former president of the National Rifle Association, said in her witness testimony, this is a ``very, very low threshold'' that can easily be met by a State or city that wishes to prohibit all gun ownership, even in the home. Thus, if Judge Sotomayor's decision were allowed to stand as precedent, then states will, ironically, be able to do what the Federal District of Columbia cannot--place a de facto prohibition on the ownership of guns and other arms.
Some have suggested that Judge Sotomayor's decision is not cause for alarm. They say that she was simply following precedent and that the Maloney case is not necessarily indicative of what she would do if confirmed to the Supreme Court. And they point to a recent decision by the Seventh Circuit, which similarly refused to apply the second amendment to State regulations. Apart from the fact that her ruling is now binding in the States covered by the Second Circuit, there is a critical difference between Judge Sotomayor's decision and that of the Seventh Circuit.
While the judges on the Seventh Circuit explicitly declined to decide what will be the key issue before the Supreme Court--whether the Second Amendment's right to bear arms is, in legal parlance, ``fundamental,'' and therefore enforceable against states as well as the Federal Government--Judge Sotomayor's perfunctory decision did not leave this question open. Her panel specifically concluded, without any explanation, that the right to bear arms is in fact not a ``fundamental'' right a conclusion that, to the best of my knowledge, no other court has ever reached--and that, as Sandy Froman noted, ``would rob the Second Amendment of any real meaning and would trample on the individual rights of America's nearly 90 million gun owners.'' Indeed, Judge Sotomayor's assessment stands in stark contrast to the Supreme Court's own opinion in Heller, which not once but twice refers to the right to bear arms as ``fundamental.''
It is hard, if not impossible, to square these facts with Judge Sotomayor's repeated assertions, in sworn testimony before the Judiciary Committee, that she was just following precedent.
Judge Sotomayor's opinion in Maloney is extraordinary both for its lack of serious analysis and for reaching an unprecedented conclusion that was wholly unnecessary. She could have as easily chosen the path taken by the seventh circuit, and reserved for the Supreme Court the opportunity to decide in the first instance whether the right to bear arms is ``fundamental.'' Or, like the ninth circuit, she could have undertaken a thorough analysis of the issue and determined that the right is, indeed, fundamental. She did neither.
As Sandy Froman stated:
When faced with the most important question remaining after Heller, whether the right to keep and bear arms is fundamental and applies to the states, Judge Sotomayor dismissed the issue with no substantive analysis. ..... By failing to conduct a proper Fourteenth Amendment analysis, the Maloney court evaded its judicial responsibilities, offered no guidance to lower courts and provided no assistance in framing the issue for resolution by the Supreme Court. Whenever an appellate judge fails to provide supporting analysis for their conclusion or address serious constitutional issues presented by the case, it is legitimate to ask whether the judge reached that conclusion by application of the Constitution and statutes or based on a political or social agenda.
I agree. I did not expect or even want Judge Sotomayor to precommit to a particular reading of the second amendment. The Judiciary Committee did, however, have a right to receive from her an explanation of the Maloney decision. At the very least she could have been more forthcoming in response to questions regarding recusal, but she would not even commit to recusing herself from the Supreme Court's consideration of her own Maloney decision if it were taken up as part of a consolidated appeal.
I think it is fair to say that Judge Sotomayor's testimony about the second amendment raised more questions than it answered. The issue of incorporation is bound to come before the Supreme Court. Those of us who support the right of the people to keep and bear arms should be very concerned about the position she has already taken and the fact that she has clearly reserved the option of reviewing the case on the Court she could be confirmed to, particularly on a matter she has already decided.
As we have seen, Judge Sotomayor's testimony about her previous speeches and some of her decisions is difficult, if not impossible, to reconcile with her record. Similarly, her testimony about the extent of her role with the Puerto Rican Legal Defense and Education Fund is in tension with the evidence we have.
At her hearing, Judge Sotomayor tried to downplay her role at PRLDEF. She said:
I was not like Justice Ginsburg or Justice Marshall. I was not a lawyer on the fund as they were, with respect to the organizations they belonged to. I was a board member.
In emphasizing her role as a long-time board member, Judge Sotomayor deflected attention from her service in litigation-focused positions, such as her 8 years on the litigation committee and the 4 years she served as that committee's chairperson. As anyone who is familiar with advocacy and public interest groups can attest, it is inconceivable that the chair of an organization's litigation committee would not have a significant role in shaping the organization's legal strategy.
Moreover, Judge Sotomayor's testimony that ``it was not my practice and not that I know of, of any board member'' to review briefs, is undermined by
PRLDEF's own meeting minutes. For example, on October 8, 1978:
[Litigation Committee] Chairperson Sotomayor summarized the activities of the Committee over the last several months which included the review of the litigation efforts of the past and present. .....
The New York Times has detailed her active involvement, as recounted by former PRLDEF colleagues, who have described Judge Sotomayor as a ``top policy maker'' who ``played an active role as the defense fund staked out aggressive stances.'' According to these reports, she ``frequently met with the legal staff to review the status of cases'' and ``was an involved and ardent supporter of their various legal efforts during her time with the group.''
What were the litigation positions advanced by PRLDEF during Judge Sotomayor's tenure there? Well, it argued in court briefs that restrictions on abortion are analogous to slavery. And it repeatedly represented plaintiffs challenging the validity of employment and promotional tests--tests similar to the one at issue in Ricci.
I want to return to a question I raised in my opening statement of Judge Sotomayor's hearing: What is the traditional basis for judging in America?
For 220 years, Presidents and the Senate have focused on appointing and confirming judges and Justices who are committed to putting aside their biases and prejudices and applying the law fairly and impartially to resolve disputes between parties.
This principle is universally recognized and shared by judges across the wide ideological spectrum. For instance, Judge Richard Paez of the ninth circuit--with whom I disagree on a number of issues--explained this in the same venue where, less than 24 hours earlier, Judge Sotomayor made her remarks about a ``wise Latina woman'' making better decisions than other judges. Judge Paez described the instructions that he gives to jurors who are about to hear a case. ``As jurors,'' he said, ``recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot--if you cannot set aside those prejudices, biases and passions--then you should not sit on the case.''
And then Judge Paez said:
The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in the office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that--I am viewed as a Latino judge--as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.
What Judge Paez said has been the standard for 220 years. It correctly describes the fundamental and proper role both for jurors and judges.
Before the hearing, my biggest question about Judge Sotomayor was whether she could abide by that standard. We spent 3 days asking her questions, trying to understand what she meant in some of her controversial speeches and what drove her to questionable conclusions in cases such as Ricci and Maloney.
Judge Sotomayor did not dispel my concerns. Her sworn testimony was evasive, lacking in substance, and, in several instances, incredibly misleading.
Her dissembling was widely noticed. Indeed, in an editorial, the Washington Post criticized Judge Sotomayor's testimony about her ``wise Latina'' statement. Here is what the Washington Post said:
Judge Sotomayor's attempts to explain away and distance herself from that statement were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation.
Until now, Judge Sotomayor has been operating under the restraining influence of a higher authority--the Supreme Court. If confirmed, there would be no such restraint that would prevent Judge Sotomayor from--to paraphrase President Obama--deciding cases based on her heartfelt views.
If the burden is on the nominee to prove herself worthy of a lifetime appointment to the Nation's highest Court, she must do more than avoid a ``meltdown'' in her testimony. She must be able to rationalize contradictory statements--assuming she does not repudiate one or the other--such as the differences between her speeches and her committee testimony. Her failure to do that has left me unpersuaded that Judge Sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based upon the rule of law.
Judge Sotomayor is obviously intelligent, experienced, and talented. She represents one of the greatest things about America--the opportunity to become whatever you want with your God-given abilities. She is a role model for young women, as well as minorities, specifically. She is personable and, apparently, hard working. I respect the views of those who regard her well.
Moreover, I appreciate her many declarations during the hearing that judges must decide cases solely on the basis of the facts and the law; and especially her disagreement with the President's erroneous, I believe, formulations that, in the hard cases, a judge should rely on empathy and what is in his or her heart.
It may have been possible to vote to confirm her notwithstanding her decisions in Ricci, Maloney, and some other questionable cases. What I cannot abide, however, is her unwillingness to forthrightly confront the contradictions among her many statements, so as to give us confidence that her Judiciary Committee testimony represents what she believes and what she will do. Instead, she would have us believe that there is no contradiction, that she can hold onto what she said before in speeches and decisions--for example, that she merely followed Supreme Court and circuit precedent in Maloney, and that the dissenters in Ricci did not disagree with her reasoning--and also her testimony.
I cannot ignore her unwillingness to answer Senators' questions straightforwardly--for instance, her insistence that as chair of PRLDEF's litigation committee, she had little to do with the organization's legal positions. She has not carried her burden of proof and, therefore, regrettably, I cannot vote to confirm her.