Madam President, it should be no surprise that my views are not those of the distinguished ranking member of our Judiciary Committee but somewhat different. I have served on this committee for over 16 years now. I have sat through the…
Madam President, it should be no surprise that my views are not those of the distinguished ranking member of our Judiciary Committee but somewhat different. I have served on this committee for over 16 years now. I have sat through the confirmation hearings of four Supreme Court Justices. I am very proud to say I believe the President made an excellent choice, and I enthusiastically support this nominee.
Judge Sotomayor is a warm and intelligent woman. More importantly, though, she is a solid, tested, and mainstream Federal judge. Her personal story is one of hard work. She has risen above all kinds of obstacles, and she has perseverance. She is a role model for women in the law, and I cannot help but feel a sense of enormous pride in her achievements, her nomination, and, hopefully, before the end of the week, her confirmation to be a Supreme Court Justice.
As I said at the confirmation hearings, a Supreme Court Justice should possess at least five qualities.
One, broad and relevant experience. So how does she stand? You can't find a nominee with better experience than Judge Sotomayor.
She has 29\1/2\ years of relevant legal experience, and she has seen the law from all sides.
For 4\1/2\ years she was a prosecutor in New York City. She prosecuted murders, robberies, and child pornography cases as an assistant district attorney. She worked with law enforcement officers and victims of crime, and she sent criminals to jail.
We heard from the distinguished New York City District Attorney, Mr. Morgenthau, who said he looked for bright young people, and he found her and he heard her story and she had been to Princeton. She graduated summa cum laude. She went to Yale Law School. She was editor of the Law Review.
She came to his attention, and he went to recruit her as a prosecutor in New York City. For 8 years after that, she practiced business law as a litigator in a private firm. She worked on complex civil cases involving real estate law, banking law, contracts, and intellectual property law.
Then, she was appointed by George Herbert Walker Bush--as we might fondly say ``Bush 41''--as a U.S. district court judge for 6 years. She heard roughly 450 cases in the district court up close and personal, where litigants come before the judge and the judge gains a sense of what the Federal court means to an individual.
I think that is important to know on the Supreme Court. She saw there firsthand the impact of the law on people before her.
Then she was appointed by President Clinton. For 11 years she has been a Federal appellate court judge on the Second Circuit Court of Appeals. She has been on the panel for more than 3,000 Federal appeals, and she has authored opinions in more than 600 cases. These 11 years were rigorous and appropriate training ground for the Supreme Court.
Judge Sotomayor will be the only sitting Justice with experience on both the Federal trial and appellate courts, and she has more Federal judicial experience than any Supreme Court nominee in the last 100 years. That is a substantial qualification.
Secondly, a Supreme Court Justice should have deep knowledge of the law and the Constitution. I believe her broad experience gives her firsthand knowledge of virtually every area of the law.
As a prosecutor she tried criminal cases--homicides, assaults, pornography cases--those crimes that destroy lives.
As a business lawyer, she examined contracts, represented clients in complex civil litigation, and tried intellectual property disputes.
As a district court judge she presided over criminal and civil jury trials; she sentenced defendants; she resolved complicated business disputes; and she reached decisions in discrimination and civil tort cases where people had been unfairly treated, injured, or harmed.
Finally, as an appellate judge, she has grappled with the difficult and critical questions that arise when people disagree about what our Constitution and our Federal statutes mean today. So she certainly has ample experience.
Third, a Supreme Court Justice should have impeccable judicial temperament and integrity. Anyone who watched Judge Sotomayor at her confirmation hearings has seen her temperament and demeanor firsthand. She is warm, she is patient, and she is extremely intelligent. She sat at that table with a broken ankle up on a box hour after hour and day after day in a hot room listening to members of the Judiciary Committee pepper her with questions. Not at any time did she lose her presence, lose her cool, or show anger. She showed determination and
patience and perseverance. I think that means a great deal.
At times, the hearings became quite heated, but she would remain calm even in the face of provocative questioning.
So I am not surprised the American Bar Association and the New York City Bar Association gave her their highest rating.
As one of her Republican-appointed colleagues on the Second Circuit said: ``Sonia Sotomayor is a well-loved colleague on our court. Everybody from every point of view knows she is fair and decent in all her dealings. The fact is, she is truly a superior human being.''
What greater compliment could there be for a prospective Supreme Court nominee?
After spending time with her during our one-on-one meeting and participating in her confirmation hearings, I agree. She is a walking, talking example of the very best America can produce. She has overcome adversity. Here is a woman--a child--the product of a poor Puerto Rican family living in a housing project in New York. She is 8 years old, she finds herself with juvenile diabetes. She is 9 years old, her father dies. She goes to school. She struggles with the language. She overcomes it. She graduates from high school. She goes to Princeton. She succeeds in every way, shape, and form, as I said, summa cum laude, and then on to Yale and a member of the Yale Law Review. She overcame adversity and she kept going.
She has given back to her country and her community, and she is now on track to become the first Latina Justice of the U.S. Supreme Court and only the third woman ever appointed to that Court.
I not only will vote for her, I will do so with great pride.
Finally, a Supreme Court Justice should exhibit mainstream legal reasoning and a firm commitment to the law. I have heard people say that they don't believe she will follow the law.
I sat in the room during those 4 days of hearings. There was never an instance that I saw where she moved away from legal precedent and the law.
I have said before, and I say today, I am somewhat concerned about the current Supreme Court. As I see it, conservative activists have succeeded in moving our Court to the right of mainstream American thought.
In just the last 2 years, this has been abundantly clear. The Justices have disregarded precedent at an alarming rate, and they have rewritten the law in ways that make clear that they are not just ``calling balls and strikes.''
In 2007, the Court held that a school district cannot consider race when it assigns students to schools--even to ensure any amount of racial diversity. This is Parents Involved in Community Schools v. Seattle School District, 551 U.S. 701, 2007.
It held that women who were paid less than men had to sue within 180 days--even when they had no way of knowing they were paid less, or they lost their right to back pay. This is Lily Ledbetter v. Goodyear Tire & Rubber Co. Inc., 550 U.S. 618, 2007. The occupant of the chair is new to the Senate. One of the first things we did was pass the Lily Ledbetter law to overcome that Supreme Court decision.
The Court held for the first time since 1911 that manufacturers could fix minimum prices for their products. This is Leegin Creative Leather Products Inc. v. PSKS, Inc., 551 U.S. 877, 2007.
It held that the Endangered Species Act did not apply to certain Federal actions--even though the Court, in 1978, said the Act had ``no exception.'' This is National Association of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 2007.
And it held that Congress could pass a law restricting access to OB/ GYN services for women without including an exception for when a woman's health is at risk. This is Gonzales v. Carhart, 550 U.S. 124, 2007.
That last decision was not only dangerous to a woman's health, it is also contrary to the Court's opinions in Roe, in 1973; in Ashcroft, in 1983; in Casey and Thornburgh, both in 1992; in Carhart I in 2000; and in Ayotte, in 2006. So this Court of conservative activists cast aside precedent and ``super-precedent'' to do essentially what they believe-- not to follow the precedent, which was simply thrust aside.
The Supreme Court's shift to the right and discarding of precedent is not just an ivory tower issue either. These decisions have real-life impact.
Last week, USA Today reported that older white men, 55 years or older, are losing jobs at the highest rate since the Great Depression. This is Dennis Cauchon, In this Recession, Older White Males See Jobs Fade, USA Today, July 30, 2009.
This is troubling. We have a law--the Age Discrimination in Employment Act--that is supposed to protect workers from being laid off because of their age. But 2 months ago, the Supreme Court changed the burden of proof under that law, making it harder for older workers to get protection when they are fired, demoted, or not given a job because of their age. This is Jack Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343, 2009.
Let me be clear, in my view, after 16 years on this committee: The Justices on the Supreme Court are not umpires; they do not just call balls and strikes. And they are not computers. It matters who sits on our Supreme Court, and it matters whether they will respect precedent and follow the law.
Judge Sotomayor is a nominee with a 17-year record of following the law. She has faithfully applied the law to the facts in case after case.
We have a research service called the Congressional Research Service. It is a neutral, respected adjunct to what we do in the Senate and the House. It carries out significant research. They took a look at her record, examined it, and this is what they said:
Her decisions do not fall along any ideological spectrum.
The most consistent characteristic of her approach as an
appellate judge has been an adherence to the doctrine of
stare decisis--the upholding of past judicial precedents.
When her record is objectively researched by the number one objective research service we have, she has been found to abide by court precedent. They have essentially said she is not an activist, she follows legal precedent. When her confirmation hearing ended, even one Senator who is now voting against Judge Sotomayor said this:
I actually agree that your judicial record strikes me as
pretty much in the mainstream of judicial decisionmaking.
This is Senator John Cornyn, Confirmation Hearings for Judge Sonia Sotomayor, July 16, 2009.
Judge Sotomayor's mainstream record, her respect for precedent, and her commitment to the law have earned her the support of groups that cut across party lines.
She has been endorsed by law enforcement groups, such as the International Association of Chiefs of Police; civil rights groups, such as the Leadership Conference for Civil Rights; business groups, such as the U.S. Chamber of Commerce--yes, they have endorsed her; former officials from both parties, including conservative lawyer Kenneth Starr; and legal groups, such as the American Bar Association.
This is a nominee with a solid record, with more Federal judicial experience than any nominee in a century, and with widespread support.
There are those who oppose her because of a line from a speech she made--one line in 29\1/2\ years of legal experience.
Second, there are those who oppose her because of one case. It is the Ricci case--the New Haven case involving firefighters. But Judge Sotomayor was squarely in the mainstream in that case. She followed established precedent. That is what the district court said in an almost 50-page opinion. This is Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, D. Conn. 2006, unpublished opinion. Her second circuit panel unanimously agreed. This is Ricci v. DeStefano, 530 F.3d 87, 2d Cir. 2007.
At about the same time, in the U.S. District Court in Tennessee, a judge held that in a nearly identical situation, the Memphis Police Department could replace a promotional exam that it feared was discriminatory.
Last year, a three-judge circuit court panel on the Sixth Circuit-- including one judge appointed by President George W. Bush--agreed. This is Oakley v. City of Memphis, No. 07-6274, 6th Cir. 2008, unpublished opinion. So there was agreement on the courts.
It is true that five Justices, in a 5-to-4 opinion on the Supreme Court, disagreed, and their decision is now the
law of the land. This is Ricci v. DeStefano, 129 S. Ct. 2658, 2009. I was a mayor for 9 years of a difficult city going through a number of affirmative action cases. I can tell you that this ruling has placed cities in what Justice Souter called a ``damned if you do, damned if you don't situation.''
I agree with that. If a city has to prove that it would lose in court before replacing a civil service exam it believes is discriminatory, this jeopardizes virtually any exam they might choose.
Finally, and most important, there is the third point of opposition, and that is the National Rifle Association. The NRA actively opposes Judge Sotomayor. They say they are scoring her confirmation vote. They will tell their members that any Senator who votes to confirm Judge Sotomayor has voted against the NRA's priorities. So let's look at that for a minute.
The NRA says Judge Sotomayor erred in the case of United States v. Sanchez-Villar, a 2004 case. In this case, an illegal immigrant named Jose Sanchez-Villar was caught dealing crack cocaine and carrying a gun in New York City. This is United States v. Sanchez-Villar, 99 Fed. Appx. 256, 2d Cir. 2004.
Those are the facts of the case. A jury convicted. On appeal, the defendant argued, among other things, that to prohibit him from carrying a gun in New York City violated the second amendment.
Judge Sotomayor and her colleagues unanimously rejected his argument and upheld the conviction. The NRA is apparently upset that Judge Sotomayor and her colleagues did not agree with Mr. Sanchez-Villar's second amendment argument.
But in 2004, when this case was decided, the law had been clear for 65 years. The Supreme Court had said in 1939 that the second amendment only related to militia service and judges all across our country had followed that decision for decades. This is United States v. Miller, 307 U.S. 174, 1939.
Would the NRA have preferred that Judge Sotomayor rule against 65 years of settled law and hold that an undocumented drug dealer had a constitutional right to carry a gun in New York City? Do you want that, Mr. President? Do I want that in my State? The answer is absolutely no.
The NRA also says Senators should oppose Judge Sotomayor's nomination because of another case, Maloney v. Cuomo. This is Maloney v. Cuomo, 554 F.3d 56, 2d Cir., 2009. There, Judge Sotomayor and her colleagues unanimously upheld a New York law banning a particular Japanese martial arts weapon called nunchakus.
The unanimous decision said the second amendment limits only the Federal Government, not the States. Why would Judge Sotomayor and her colleagues say that? Because it was binding Supreme Court law. Look at the decisions:
In 1876, the Supreme Court held that the second amendment only applies to the Federal Government. That was United States v. Cruikshank, 92 U.S. 542 (1876). It said it again in 1886, in Presser v. Illinois, 116 U.S. 252, 1886, and again, in 1984, in Miller v. Texas, 153 U.S. 535, 1984.
The fourth circuit followed that law and said in 1995 that the second amendment only applies to the Federal Government. That case was Love v. Pepersack, 47 F.3d 522, 1995. The Sixth Circuit agreed in 1998, in People's Rights Organization v. City of Columbus, 152 F.3d 522, 1998. Judge Sotomayor's own court, the second circuit, agreed in 2005, in Bach v. Pataki, 408 F.3d 75, 2005.
Then last year, Justice Scalia wrote in footnote 23 of the famous Heller opinion:
[Our] decisions in Presser v. Illinois and Miller v. Texas
reaffirmed that the Second Amendment only applies to the
Federal Government.
That case was District of Columbia v. Heller, 128 S.Ct. 2783, 2008. Justice Scalia is not exactly a liberal Supreme Court Justice, and that is his view:
Presser v. Illinois and Miller v. Texas reaffirm that the
second amendment only applies to the Federal Government.
Finally, just 2 months ago, three Republican appointees on the Seventh Circuit agreed that the second amendment only applies to the Federal Government. They said anyone who doubts this need only read Justice Scalia's opinion. And that case was the National Rifle Association v. City of Chicago, 567 F.3d 856, 2009.
So once again Judge Sotomayor's decision was squarely in agreement with court after court after court.
Some of my colleagues have said that the Ninth Circuit disagreed. It is true that three of its judges did. But last week, the full Ninth Circuit voted to review these three judges' decision and to rehear it as a full court en banc. And that case is Nordyke v. King, No. 07- 15763, En Banc Order, Ninth Circuit, July 29, 2009.
The NRA tried its case before the Seventh Circuit and lost. They lost in front of three Republican-appointed judges.
Let me summarize. Judge Sonia Sotomayor has 29\1/2\ years of relevant legal experience. She has a 17-year record of following the law. She has experience, temperament, and knowledge. She will be, in my view, a fine Supreme Court Justice.
Supreme Court Justices do not merely call balls and strikes; they make decisions that determine whether acts of Congress will stand or fall. They decide how far the law will go to protect the safety and rights of all of us. They have the power to limit or expand civil rights protections. They have great leeway to interpret the laws protecting or limiting a woman's right to choose. And they can expand or limit child pornography laws and campaign finance laws and so many more.
I believe Judge Sotomayor is an exceptional person who brings a rich background as a prosecutor, a business lawyer, a trial judge, and appellate court judge. And her 17-year record of judicial temperance shows she will faithfully apply the law. I cannot tell you how proud I will be to vote to confirm her as an Associate Justice on the Supreme Court. I sincerely hope that a dominant majority of my colleagues will do the same.
I yield the floor.