Mr. President, I ask unanimous consent that the Republican time for the next hour be allocated as follows: Senator Ensign, 30 minutes; Senator Murkowski, 20 minutes; and Senator Sessions, 10 minutes. Mr. President, I rise to speak about…
Mr. President, I ask unanimous consent that the Republican time for the next hour be allocated as follows: Senator Ensign, 30 minutes; Senator Murkowski, 20 minutes; and Senator Sessions, 10 minutes.
Mr. President, I rise to speak about Supreme Court nominee, Judge Sonia Sotomayor.
The words ``Equal Justice Under Law'' are engraved in the stone above the entrance to the U.S. Supreme Court. This simple phrase, ``Equal Justice Under Law,'' carries an immense amount of weight and responsibility.
As a Senator tasked with the monumental responsibility of confirming a Supreme Court nominee, it is with these four words in mind that I carefully studied this Supreme Court nominee. There is no denying that Judge Sotomayor is impressive. Her qualifications, diverse experience, and personal disposition make her a worthy candidate for this nomination. The fact that this is a proud moment for our Nation has not been lost on me. This year, America has certainly filled the history books. On the tails of his historic election, President Obama has chosen to nominate the Nation's first Hispanic woman to the Supreme Court. President Obama and Judge Sotomayor have made history, but the impact they will have on future generations is so much greater.
Although, as a child, Judge Sotomayor could do little more than dream. She was born in the Bronx, raised by a single mother after her father passed away when she was 9 years of age. Her mother instilled in her a deep value for education and a strong work ethic, which paid off with a full scholarship to Princeton University. She graduated summa cum laude from Princeton and went on to attend Yale Law School, where she earned her juris doctorate. She is truly an inspiration for people across our great country.
Judge Sotomayor's humble upbringing is reminiscent of another recent judicial nominee, also of Hispanic heritage, who rose above his meager means in New York to attend and graduate with honors from Ivy League schools. And the similarities do not stop there. I am referring to the American success story of Miguel Estrada, an individual equally deserving of our respect.
Miguel Estrada came to America as a Honduran immigrant at the age of 17. With very little English in his vocabulary, he rose to the top of the legal profession after graduating with honors from Columbia University and Harvard Law School. He clerked for Supreme Court Justice Anthony Kennedy and was a former Assistant Solicitor General of the United States. Miguel Estrada served in the administrations of both President Bill Clinton and President George W. Bush.
In 2001, President George W. Bush recognized his talent and nominated him to the U.S. Court of Appeals for the DC Circuit. Unfortunately, partisan politics came into play, and Estrada's record was not judged purely on its merits. He did not receive the fair consideration that has been given to Judge Sotomayor. He never even made it as far as a confirmation vote. Miguel Estrada's nomination and expected ascension to the Supreme Court was cut short by a Democrat filibuster--as a matter of fact, seven Democrat filibusters that helped create a new standard for judicial nominees and the Senate's constitutional role of ``advise and consent.'' Had he been given
the fair consideration he deserved, the Hispanic community would have another great role model in our judicial system.
As I have previously stated, I am impressed by Judge Sotomayor. In our meeting, I found her very personable and easy to talk with. Unfortunately, our discussions during that meeting did little to alleviate the concerns I had upon reviewing her record and her public statements, including her testimony before the Judiciary Committee. Judge Sotomayor's record and testimony have left me with more uncertainty and doubt instead of the assurance that she has the ability to rule with a fair and impartial adherence to the rule of law. I fear that Judge Sotomayor, when seated on the Supreme Court bench, will not be a zealous advocate for ``Equal Justice Under Law.'' Many of her responses to me and to my colleagues on the Judiciary Committee were troubling, not necessarily because of substance, but more due to the lack of it.
I remain concerned that we just do not know who we will be getting on the Supreme Court. The inconsistencies in Judge Sotomayor's testimony, judicial record, and writings make it impossible to fully understand her commitment to how she will interpret and uphold the Constitution.
This especially concerns me because a lifetime appointment to the Supreme Court comes without the barriers of additional judicial review that someone has in a lower court. The restraints of precedent that she was under as a district court and circuit court judge will not apply.
Even if I was to solely consider her judicial record, I cannot in good conscience dismiss her cursory treatment of cases dealing with serious and important constitutional questions. Some of her decisions have run contrary to the Constitution, were decided in opinions lacking analysis, and are consistent with liberal political thought.
For example, there was her 2006 private property decision that permitted the government to take property from one developer and give it to another.
And we have heard a lot about her 2008 Ricci decision, recently overturned by the U.S. Supreme Court, which would have effectively allowed employers to engage in reverse discrimination, so long as their claims of their actions were motivated by a desire to avoid conflicts with favored minority groups. A majority of Justices found that Judge Sotomayor misapplied the law.
Then there was her 2009 second amendment decision in Maloney v. Cuomo that would give States the power to ban firearms. The unsigned decision, joined by Judge Sotomayor, held that New York's state statute does not interfere with a fundamental right. The opinion also dismissed the argument that a complete ban violates the Second Amendment by citing Supreme Court cases from the 19th century holding that the Second Amendment applies only to the Federal Government and not to the States. To me, the Maloney ruling is an indication that Judge Sotomayor does not view the Second Amendment as protecting a fundamental right.
This is further supported by a 2004 decision in U.S. v. Sanchez- Villar in which she also joined a decision that flatly denied gun possession as a fundamental right. While that decision pre-dated Heller, the Maloney decision occurred more than six months after the Heller decision, and yet Sotomayor again dismissed the possibility that the second amendment protects a ``fundamental right.'' Once again in the decision, no analysis was given as to why. Her conclusion was that, one, the Second Amendment does not apply to the States and, two, the Second Amendment does not protect a fundamental right.
Had Judge Sotomayor looked to the history of the Fourteenth Amendment, the Civil Rights Act, and the Freedman Bureau's Act, she would have recognized--or at least she should have recognized--that they were enacted to ensure that the constitutional rights of freedmen were protected against State infringement. This is especially true as it relates to the Second Amendment and the practice by States and localities that were outlawing the ownership of firearms by newly freed slaves.
Given this information, coupled with Judge Sotomayor's record, I believe it is reasonable to conclude that she has a bias against firearms and our constitutional right to ``keep and bear arms.'' Should we expect her to rule differently when the Supreme Court takes up the Maloney case or the Ninth or Seventh Circuit cases that deal with the question of whether the Second Amendment applies to the States?
Judge Sotomayor appears to believe that the Second Amendment is not an individual, fundamental right. It is, in fact, a fundamental right granted to all Americans and enshrined in our Constitution. The Second Amendment is the cornerstone of our Bill of Rights. If it is chipped away or infringed upon in any way, our freedom and liberties will be compromised. It is my fear that Judge Sotomayor will threaten Second Amendment rights for all Americans.
This was not the first time her bias and propensity to rule with purpose-driven results impacted her judicial decision making. Unfortunately, Judge Sotomayor's record and testimony provides more uncertainty and doubt than a declaration to her ability to rule with a fair and impartial adherence to the rule of law.
Presidents, Senators, judges, and Supreme Court Justices alike take an oath to preserve, to protect, and to defend the Constitution. It is our most solemn duty. Judges are expected to be tethered to the Constitution and impartially apply the law to the facts. The American people overwhelmingly reject the notion that unelected judges should set policy or allow their social, moral, or political views to influence the outcome of cases. I worry about her prior dismissal of the goal of judicial impartiality as an unattainable ``aspiration.'' And I disagree that embracing her biases is a good thing.
Judge Sotomayor's views on international law are also troubling. While the use or consideration of foreign and international law in judicial decision-making is not new and remains a subject of controversy, Judge Sotomayor appears to embrace using international standards or laws to decide U.S. constitutional questions.
I asked Judge Sotomayor about her thoughts on the use of foreign law. Her answers on this worrisome issue only confirm a contradictory position reflected in many of her public statements and an apparent endorsement of using foreign law as a source of creative ideas.
During the confirmation hearings, Judge Sotomayor was asked if she agreed that ``there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes.'' This was her response:
Unless the statute requires you or directs you to look at
foreign law . . . the answer is no. 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.
She went on to say:
I will not use foreign law to interpret the Constitution or
American statutes. I will use American law, constitutional
law to interpret those laws, except in the situations where
American law directs a court.
This seems fairly straightforward. But her answers to written questions are contradictory, saying:
In limited circumstances, decisions of foreign courts can
be a source of ideas informing our understanding of our own
constitutional rights.
To the extent that the decisions of foreign courts contain
ideas that are helpful to that task, American courts may wish
to consider those ideas.
This was not the only time she offered support for utilizing foreign law. On April 28, 2009, Judge Sotomayor gave a speech to the ACLU of Puerto Rico entitled ``How Federal Judges Look to International and Foreign Law Under Article VI of the U.S. Constitution.'' Article VI makes the Constitution and subsequent laws the ``supreme law of the land.'' In her April speech, she gave a broad defense of the practice by some American judges of looking to foreign and international law as a source of ``good ideas'' in deciding questions of American law. She stated that U.S. courts can use foreign law to ``help us understand whether our understanding of our own constitutional rights f[a]ll[s] into the mainstream of human thinking.''
Apparently, the sentiments Judge Sotomayor expressed this past April are not new. In 2007, she wrote a forward to a book on international judges, titled ``The International Judge,''
where she assumed there is value to ``learn[ing] from foreign law and the international community when interpreting our Constitution.''
I believe, and Justices Roberts, Scalia, and Thomas agree, it is illegitimate for judges to look to foreign sources for guidance in interpreting the Constitution and laws ratified and enacted by ``We the People, of the United States.'' Judge Sotomayor has also specifically criticized Justices Scalia and Thomas for their opposition to relying on foreign law to interpret the Constitution. She has even suggested that we will lose our influence globally if we are not open to foreign and international law.
While Judge Sotomayor acknowledges that judges are prohibited from treating foreign statutes or foreign court judgments as binding, she has publicly embraced their use in formulating decisions. Judge Sotomayor attempted to distinguish the ``use'' of foreign law to decide American legal questions from the act of ``considering'' foreign law by ``us[ing] the ideas of foreign courts in some of our decision-making.''
According to Sotomayor, any effort to ``outlaw the use of foreign or international law . . . would be asking American judges to . . . close their minds to good ideas.'' She further stated, ``How can you ask a person to close their ears? Ideas have no boundaries. Ideas are what set our creative juices flowing.''
I agree, good ideas are important. Aren't we fortunate that our Constitution is full of them? And our Constitution will always be the supreme law of our land.
Unfortunately, we have already experienced the negative impact of so- called good ideas from foreign law and how some on the Supreme Court may be using them to erode our constitutionally protected rights. Let's take a look at the controversial 2005 Supreme Court decision of Kelo v. New London.
It appears the global ``good idea'' of ``Sustainable Development'' from a U.N. Earth Summit may have influenced the majority decision to widely expand the definition of the ``Takings Clause'' and eminent domain from its original purpose--``public use'' for bridges, roads, or traditional government uses.
In Kelo, I believe the Court incorrectly ruled against the private property owners, allowing the City of New London, CT, to transfer the private property from long-time homeowners to a private developer for what the city considered a greater ``public purpose,'' instead of public use to increase the city's tax base.
Again, I believe this is a troubling interpretation of the Constitution, and the Kelo decision suggests the danger of allowing international or foreign good ideas to impact interpretation of U.S. constitutional questions.
I further fear that she may be less restrained by the text of the Constitution and more inclined to embrace judicial activism. Throughout her hearing, Judge Sotomayor insisted her judicial philosophy was, ``fidelity to the rule of law,'' and that judges are required to defer to the policy choices made by Congress. Unfortunately, she declined to explain how she would apply that principle in practical terms.
When asked how her commitment to the ``rule of law'' would guide her judgment on whether the Second Amendment protected a fundamental constitutional right against encroachments from States and local governments, Judge Sotomayor declined to answer other than to vaguely commit to look at the Supreme Court's prior decisions. And when asked whether she views the Constitution as a ``living, breathing, evolving document,'' Judge Sotomayor professed that the Constitution ``is immutable'' and ``has not changed except by amendment.''
Yet, once again, her own responses to Senators' questions adopt a strikingly different tone. When asked to distinguish between judicial decisions that apply a broadly-written statute to specific circumstances based on a judge's view of ``common sense'' and a legislative act that endorses and codifies a court's decisions, Judge Sotomayor argued that a court's action--with precisely the same practical effect as the action of the legislature--does not amount to ``making law'' solely because it is a judicial act.
If, as her written answers argue, Judge Sotomayor believes judges cannot make law solely because they are judges, her repeated disavowals of judicial law-making while sitting before TV cameras are essentially meaningless.
In conclusion, when thinking back on the phrasing engraved in marble above the entrance to the U.S. Supreme Court, ``Equal Justice Under Law,'' Judge Sotomayor's record and testimony provide uncertainty and doubt that she will rule with a fair and impartial adherence to the rule of law. Therefore, I respectfully oppose her nomination because she has given no assurances that the Second Amendment is an individual, fundamental right; she has demonstrated a propensity to rule with purpose-driven results; she has indicated a particular interest in considering international standards or laws to decide U.S. constitutional questions; and her televised testimony contradicted much of her public record and professed judicial philosophy.
Mr. President, I yield the floor.