Nomination Of Sonia Sotomayor To Be An Associate Justice Of The Supreme Court Of The United States--Continued

Floor Speech

NOMINATION OF SONIA SOTOMAYOR TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES--Continued -- (Senate - August 05, 2009)

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Mr. SESSIONS. Mr. President, we had a number of Members discuss the second amendment issue that was dealt with by Judge Sotomayor in two different cases. It is an important question and I think her nomination raises very serious concerns about it. I would like to try as fairly as I can to analyze the circumstances in her dealing with these issues and why I think it is a problem that Senators rightly have objections to.

The second amendment is in the Constitution. It is the second of the first 10 amendments. It is part of the Bill of Rights. If you remember, the people were not so happy with the Constitution. They wanted to have a guarantee of individual rights that they as American citizens would possess no matter what the Federal Government or anyone else wanted to do about it. So they passed the right not to establish a religion, free speech, free press, the right to jury trial and other matters of that kind in the first 10 amendments, as adopted.

The second amendment was one of those, of course. It says:

A well regulated militia being essential to the security of a free State, the right of the people to keep and bear arms shall not be infringed.

The right of the people to keep and bear arms shall not be infringed.

Over the years, laws have been passed that caused difficulties and that began to overreach with respect to the second amendment right. The American people have gotten their back up, as the Senator from Alaska told us, Senator Murkowski. People in Alaska, people in Alabama, people all over America are concerned about this. It is a constitutional right. It has been there since the founding of the Republic.

I think most scholars have believed for some time that it is, in fact, an individual right, that the first clause regarding the well-regulated militia did not undermine the final declaratory clause which said:

The right of the people to keep and bear arms shall not be infringed.

But no Supreme Court case had ruled on that squarely until last year when the Supreme Court took up the Heller case, which was in the Federal city we are in today, DC. The Supreme Court in the Heller case said it was an individual right and it prohibited the city of Washington, DC, from effectively barring any citizen in the District from having a gun.

It was an exceedingly broad ban on guns. But I would note something that ought to be remembered: It was a 5-to-4 decision--four members of the Supreme Court did not agree. Some people do not agree.

One of our Democratic colleagues yesterday said of the result in Heller, that it was ``a newly minted and narrowly enacted constitutional right.''

That is cause for concern. The Constitution, I don't think, is newly minted. I don't think the Court created a right. I think the Court simply declared a right that was plainly in the Constitution. So this is part of our concern.

I would suggest that it is a fragile right, however, based on the way some of the courts have been ruling and based on how Judge Sotomayor ruled.

Somebody had raised the point several times that it is somehow not right that the National Rifle Association here, at the end, after the hearings, declared that they think that Judge Sotomayor should not be confirmed. Certainly they were reluctant to be engaged in this debate. But for the reasons I would note--and Senator Murkowski and others have noted--I don't think they had much choice, because it is a critical thing we are dealing with here, the next appointment to the U.S. Supreme Court.

In a year after the Heller case was decided that the right to keep and bear arms is a personal or individual right and it cannot be abridged by the Federal Government, the case came before her as to whether the second amendment applied to States and cities.

What if other cities were to declare that you couldn't have a gun in the city, or a State were to declare you couldn't have a firearm, or if a State were to place massive restrictions on the use of personal weapons? She took that case, the first major case after Heller to deal with this issue. Anyone who is familiar with the appellate courts in America, as this judge would be, would know this was a big, big, big case, a case of great importance coming on the heels of the widely discussed Heller decision. In it, she rendered an exceedingly short opinion. In it, she found it was ``settled law'' that the second amendment does not apply to individual Americans in States or cities. The city or State could completely bar them from having any kind of gun.

In the Heller case, to be fair with her, this is what the circumstances were. There was an old 1800s case that basically held this way. It basically held that the second amendment did not apply to the States. I think the judge could rightly conclude that she may have been bound by that case. However, in the Supreme Court decision, they put a footnote in it and said: we are not deciding the question of whether the second amendment applies to the States because we are deciding a case in the District of Columbia, and the law in the District of Columbia is not city law. The law in the District of Columbia is U.S. Government law. They put a footnote and indicated that the incorporation doctrine was out there, but that they would review that in the future.

My first point is this: I don't believe it would be appropriate to say it is settled law that the second amendment does not apply to the States after the Heller case. That troubled me that she said that.

Judge Sotomayor made a decision in the Maloney case, the first major case after Heller. It was only eight paragraphs in a case that everyone knew was of great importance. And only one paragraph dealt with the question of whether the second amendment would apply to the States. Those who have supported Judge Sotomayor have correctly noted that the seventh circuit heard the same kind of case some months later and they agreed with the Maloney case and Judge Sotomayor. They spent, however, a number of pages on it. They spent 2 1/2 pages on the question of whether it was incorporated against the States. But they concluded that even with the footnote in the Heller case, they concluded that the more clear authority was still this old case that is out there in the 1800s. They did not say, however, that it was settled law.

The ninth circuit took up the very same case just a few months after Judge Sotomayor's Maloney decision. In a 19-page opinion that discussed in great depth the important constitutional issues, the panel said, when you read the Heller decision, when you consider the footnote of the Supreme Court's opinion where they said they didn't explicitly decide whether it applied to the States, they found differently. They found the second amendment does apply to the States and cities, and the States and cities must comply with it, and they can't ban all guns. They found not only that it was not settled law. To the contrary, they found that the footnote in the Supreme Court opinion ``explicitly left open this question.'' And because they found the question was left open by the Supreme Court, they felt they were authorized to consider the constitutional laws and questions that are important and render a decision that they thought was the right constitutional decision. That is why they went forward in that fashion.

At the hearing, the judge was asked a number of questions about this. I didn't find those questions answered very persuasive, frankly. In some instances, I found them confusing. There was no retreat that I heard from this untenable position. In answering questions from Senator Hatch, the judge said that:

The Supreme Court didn't consider [the second amendment] fundamental [in the Heller case] so as to be incorporated against the state. ..... Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the [C]ourt's precedent held that it was not fundamental.

In the course of her decision she also found a critical question, that the second amendment is not a fundamental question. The judge was just wrong on that in a big, big case. It is the kind of thing you shouldn't make a mistake on. In the majority's footnote on this issue, the Court expressly reserved the question of whether the second amendment applies to the States. The footnote said this:

With respect to Cruikshank's one of the old cases--continuing validity on incorporation, a question not presented in this case .....

So they explicitly said that they didn't were addressing this issue. But it is pretty clear that the doctrine that allows the Bill of Rights, the first 10 amendments, to apply to the States. That doctrine has developed dramatically in the 20th century, over the last 100 years. Virtually every one of the 10 amendments has been incorporated against the States. But the Second Amendment has not yet been applied to the States. To me, that is an odd thing in light of the doctrine of the incorporating of the first 10 amendments as protections for individual Americans against both the Federal Government and State and local governments. That doctrine has developed great strength and power over the last 100 years. Few people would want to go back. I think most people would be awfully surprised to learn that the second amendment would not be one of those applied to the States. It certainly, in my opinion, is not settled law.

This case was dealt with in a most cursory manner. It dealt with a matter of huge national importance. It is the kind of case that legal scholars watch closely. It was an exceedingly short opinion, a few paragraphs. It showed little respect for the seriousness of the issue. It didn't discuss it in any depth. It incorrectly stated it was settled law that the second amendment would not apply to the States. These are the problems we have with it.

Judge Sotomayor now seeks to be on the Supreme Court. And with regard to the 5-to-4 decision in Heller and to the question of whether she should recuse herself, as asked by Senator Kyl, she indicated that if her case came up, she would recuse herself. It could come before the Supreme Court. It is that important. But if one of the other cases raising exactly the same issue came up, she refused to say she would recuse herself. Of course, if her case comes up, it is a matter of ethics that she would have to recuse herself. I thought that since having already clearly decided precisely the same issue the Supreme Court would have to deal with, she ought to have indicated to us that since she expressed her opinion on it, she wouldn't sit on the case. But that did not happen.

I will share likewise another concern we have about the firefighters case and how that was handled in such a short manner. The firefighters contended that they had studied hard. They had passed a promotion exam. They were on the road to being promoted. The city, because of political complaints about the fact that certain groups did not pass the test in a way that raised concerns, decided they would give up and not have the test and wipe out the test and not follow through with the test. The firefighters felt they had done everything possible, and they challenged that. Indeed, later the Supreme Court held that no evidence was ever presented that the test was not a fair and good test. Indeed, they had taken great care to get good people to help write the test in a way that would be neutral and fair to all groups of people and would not have any kind of unfair advantage.

When that case came before the judge, I was very disappointed that she and her panel treated it as a summary order. A summary order is reserved for cases that present no real legal question. Summary orders are not even circulated among the other judges in the circuit. Here, it was a summary order that did not even adopt the opinion of the lower courts that had ruled in this fashion. It just summarily dismissed the firefighters' claim and rendered judgment in favor of the city which had altered the plan for promotion. It was basically done because of their race.

The equal protection clause of the Constitution says that all American citizens are entitled to equal protection of the laws, regardless of race. That is what their complaint was, one of the complaints. I would note that this was not even an opinion. It was basically a line or two summarily dismissing this.

Then one of the other judges on the court apparently found out this opinion had been rendered in a case that struck him, apparently, as a matter of real importance, a case that ought not to be disposed of by a summary order, that the firefighters were at least entitled to an opinion. And by the way, they never got a trial. Basically it was dismissed prior to trial on motions. So after great debate within the circuit, a little bit of a dust-up within the circuit, by a 7-to-6 margin, Judge Sotomayor casting the decisive seventh vote, they decided not to rehear the case and any precedent that may exist in the circuit. But at that point, I guess as part of the process of confrontation that arose there, the panel issued an opinion that adopted the lower court opinion, a procuring opinion. They didn't write their own opinion but basically adopted the lower court's opinion.

It was from that decision, as a result of by chance another judge heard about it, not through the normal processes but, according to Stuart Taylor's article, from seeing it on television, that the case got some attention. And the Supreme Court agreed to hear it and reversed the case and rendered a judgment in favor of the firefighters. I think that was not responsible. That was a huge case of major constitutional import. It should have been written in detail. Any person, any judge should have done that, particularly one who would be considered for the Supreme Court.

So I will say those two opinions to me are troubling in that I think they were wrong, No. 1. And No. 2, they were exceedingly short, too short, when you consider the seriousness of those issues.

I yield the floor.

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