Mr. President, I enjoyed my colleague's remarks. I don't agree with him, but he is certainly a great colleague and we appreciate him. Mr. President, I rise today to explain why I cannot support the nomination of Judge Sonia Sotomayor to be…
Mr. President, I enjoyed my colleague's remarks. I don't agree with him, but he is certainly a great colleague and we appreciate him.
Mr. President, I rise today to explain why I cannot support the nomination of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court. I do so with regret because the prospect of a woman of Puerto Rican heritage serving on the Supreme Court says a lot about America. Judge Sotomayor has achieved academic and professional success, and I applaud her public service. But in the end, her record creates too many conflicts with fundamental principles about the judiciary in which I deeply believe.
It did not have to be this way. President Obama could have taken a very positive step for our country by choosing a Hispanic nominee whom all Senators could support. President Obama could have done so and I regret that he did not.
I commend the distinguished chairman and ranking member of the Judiciary Committee, Senators Leahy and Sessions, for conducting a fair and thorough confirmation hearing. Judge Sotomayor herself said that the hearing was as gracious and fair as she could have asked for.
I evaluate judicial nominees by focusing on qualifications, which include not only legal experience but, more importantly, judicial philosophy. Judge Sotomayor's approach to judging is more important to me than her resume. I ask unanimous consent to have printed in the Record following my remarks an article that I published earlier this year in the Harvard Journal of Law & Public Policy. It is titled ``The Constitution as the Playbook for Judicial Selection'' and explains more fully the principles I will mention here.
President Obama has described the kind of judge he intends to appoint. As a Senator, he said that judges decide cases based on their ``deepest values . . . core concerns . . . broader perspectives . . . and the depth and breadth of [their] empathy.'' As a presidential candidate, he pledged to
appoint judges who indeed have empathy for certain groups. And as President, he has said that a judge's personal empathy is an essential ingredient in judicial decisions.
This standard is seriously out of sync with mainstream America. By more than 3 to 1 Americans believe that judges should decide cases based on the law as written, rather than on their own sense of fairness or justice. The American people reject President Obama's standard for the kind of judge we need on the Federal bench.
At the Judiciary Committee hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. While some of my Democratic committee colleagues said that they wanted to avoid slogans, codewords, and euphemistic phrases, they apparently accepted this one at face value. Unfortunately, it begs rather than answers the important questions.
Some Senators on the other side of the aisle try to confine concerns about Judge Sotomayor's record to a single case and a single phrase. That political spin, I will admit, makes for a quotable sound-bite. But even a casual observer of this process knows that this political spin is simply not true.
Ironically, those who would narrowly characterize the case against confirmation want us to confine our examination of Judge Sotomayor's record only to her cases while ignoring her speeches and articles. A partial review, however, cannot provide a complete picture. Appeals court decisions that are bound by Supreme Court precedent are not the same as Supreme Court decisions freed from such constraints. Taking Judge Sotomayor's entire record seriously not only gives us more of the information we need, but also gives her the respect she deserves.
Debates over judicial nominations are debates over judicial power, and America's founders gave us solid guidance about the proper role of judges in our system of government. Judges interpret and apply written law to decide cases. While judges cannot change the words of our laws, they can still control statutes and the Constitution by controlling the meaning of those words. That would result in the rule of judges, not the rule of law. To borrow Judge Sotomayor's phrase, judges would not have fidelity to the law, but fidelity to themselves.
In September 2001, Judge Sotomayor introduced Justice Antonin Scalia when he spoke at Hofstra Law School. She repeated a legend about Justice Oliver Wendell Holmes and Judge Learned Hand. Like Judge Sotomayor, Judge Hand served on both the Southern District of New York and the Second Circuit. As they departed after having lunch, Judge Hand called out: Do justice, sir, do justice. Justice Holmes replied: That is not my job, my job is to apply the law.
Is it a judge's role to do justice or to apply the law? President Obama says that a judge's personal empathy is an essential ingredient for doing justice. At the hearing on Judge Sotomayor's nomination, one of my Democratic colleagues invoked what he called ``America's common law inheritance'' to describe Federal judges with broad discretion to decide cases based on their personal notions of justice or fairness.
That may be the judiciary some of my colleagues would prefer, but it is not the judiciary America's Founders gave us. Federal judges are not common-law judges. They may not decide cases based on subjective feelings they find inside themselves, but only on objective law they find outside themselves. Thankfully, the American people overwhelmingly say today what America's Founders said, that judges must follow the law rather than their personal empathy to decide cases.
The question is which kind of Supreme Court Justice Sonia Sotomayor will be. In one speech that she gave several times over nearly a decade while she was on the bench, she spoke directly about how judges should approach deciding cases. In this speech, she said that factors such as race and gender affect how judges decide cases and, as she put it, ``the facts I choose to see.'' She embraced the notion that there is no objectivity or neutrality in judging, and that impartiality is merely an aspiration which judges probably cannot achieve, and perhaps should not even attempt. She said that judges must decide when their personal sympathies and prejudices are appropriate in deciding cases.
Judge Sotomayor and her advocates have tried unsuccessfully to blunt this speech's more controversial edges. Their claim that she used the speech solely to inspire young lawyers or law students, even if true, is irrelevant because the speech is controversial for its content, not its audience.
My concern only grew after discussing this speech with Judge Sotomayor during the hearing. Rather than adequately defend or disavow these views, she presented a different, and contradictory, picture. I am not the only one who noticed. The Washington Post editorialized that Judge Sotomayor's attempts to explain away or distance herself from past statements ``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.''
In another speech just a few months ago, Judge Sotomayor addressed whether judges may use foreign law to interpret and apply American law in deciding cases. The distinguished ranking member of the committee mentioned this as well. She said that foreign law ``will be very important in the discussion of how we think about the unsettled issues in our own legal system.'' She endorsed the idea that judges may, as they interpret American law, consider anything, from any source, that they find persuasive.
Once again, Senators discussed this issue with Judge Sotomayor at her hearing. And once again, she neither defended nor disavowed these controversial statements but presented a different, contradictory picture. In her speech, she hoped that judges would continue to consult what others have said, including foreign law, to ``interpret our law in the best way we can.'' But in the hearing, she said that ``I will not use foreign law, to interpret the Constitution or American statutes.'' In her speech, she said that judges may use ideas from any source that they find persuasive. But in the hearing, she said that foreign law cannot be used to influence a legal decision. These different versions are clearly at odds with each other.
Judge Sotomayor took a different tack in answering post-hearing questions. She said that decisions of foreign courts may not serve as ``binding or controlling precedent'' in deciding cases. The issue, however, is not whether a decision by the Supreme Court of France literally binds the Supreme Court of the United States. Of course it does not. The issue is whether that foreign decision may influence our Supreme Court in determining what our statutes and the Constitution mean. And in her answers to post-hearing questions, Judge Sotomayor once again said that decisions of foreign courts can indeed be ``a source of ideas informing our understanding of our own constitutional rights.''
In these speeches, Judge Sotomayor described how such things as race, gender, life experience, personal sympathies, or prejudices affect judges and their decisions. That is certainly possible. But I waited for her to say that judges have an obligation to eliminate the influence of these factors. I wanted her to say that because these things undermine a judge's impartiality, judges must be vigilant to prevent their influence. That would have given me more solace about what Judge Sotomayor's phrase, fidelity to the law, really means. But she never said it. Instead, she endorsed the notion that judges may look either inside themselves to their empathy, or outside to foreign law, for ideas and notions to guide their decisions.
Turning to her cases, the Supreme Court has disagreed with Judge Sotomayor in nine of the ten cases it has reviewed, three of them in the most recent Supreme Court term alone. That is nine of her ten cases they reviewed. And these were not close decisions, either. The total vote in the cases reversing Judge Sotomayor was a lopsided 52-19.
In one case, Judge Sotomayor had held that the Environmental Protection Agency could not consider cost-benefit analysis when adopting a regulation. The Supreme Court reversed
her, citing its own precedents extending back more than 30 years and holding that the EPA's use of cost-benefit analysis was well within the bounds of its statutory authority.
In another case, Judge Sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago to resurrect a tort suit. Justice Souter, whom Judge Sotomayor would replace, wrote the opinion for the Supreme Court's 7-2 decision reversing her.
In another case, Judge Sotomayor declared unconstitutional a State law providing for political party election of judges because she felt the law did not give people what she called a ``fair shot.'' The Supreme Court unanimously reversed her, saying that traditional electoral practice ``gives no hint of even the existence, much less the content,'' of the fair-shot standard Judge Sotomayor had invented.
In one case, the Supreme Court affirmed Judge Sotomayor's result but rejected her reasoning because her reading of the relevant statute ``flies in the face of the statutory language.''
And in the one case where the Supreme Court affirmed both Judge Sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. This is a very shaky record on appeal.
The Ricci v. DeStefano case, which has been mentioned quite a lot around here, is one of the cases in which the Supreme Court reversed Judge Sotomayor. The Court reversed her result by a 5-4 vote but unanimously rejected her reasoning. In this case, Judge Sotomayor affirmed the city of New Haven's decision to throw out the results of a fairly designed and administered firefighter promotion exam because too few racial minorities passed it.
This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit. That bothered me a great deal, because judges know when they issue a summary order, the rest of the judges are not going to see it. She then converted it to a per curiam opinion that is permissible only when the law is entirely settled. The summary order and the per curiam opinion were each a mere single paragraph and neither appears to be an appropriate vehicle for deciding this challenging case.
On the merits, Title VII of the 1964 Civil Rights Act prohibits two kinds of discrimination. It prohibits disparate treatment, which is intentional, and disparate impact, which may be unintentional. Disparate treatment focuses on the motivation of an employment decision, while disparate impact focuses on its effect. While discrimination cases typically involve one or the other, the Ricci case involved both. In this case, the city claimed it had to engage in disparate treatment of those who passed the promotion exam because it feared a disparate impact lawsuit by those who failed the exam.
I point out that this case involved both disparate treatment and disparate impact because Judge Sotomayor and her advocates claim that her decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. We have heard some of that here on the floor tonight. Contrary to her statement to me at the hearing, however, her one-paragraph opinion cited no precedent at all. The only case she cited was the district court opinion in that very case. But the district court actually acknowledged that this case was the opposite of the norm. Rather than those failing an employment test challenging the use of the results, in this case those who passed the test challenged the refusal to use the results. None of the precedents cited by the district court involved this kind of case.
For this reason, six of Judge Sotomayor's Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised important questions of first impression in the Second Circuit and the entire Nation. When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were few, if any, precedents in any court even discussing the issue in this case.
In a column published today in National Journal, the respected legal analyst Stuart Taylor carefully analyzed whether Judge Sotomayor's decision in Ricci was indeed compelled by precedent. We have all read Stuart Taylor over the years. He is one of the most prescient commentators and journalists with regard to the law. He concludes: ``The bottom line is that Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.'' I ask unanimous consent that Mr. Taylor's column appear in the Record following my remarks.
In addition to claiming that her decision in Ricci was grounded in either Second Circuit or Supreme Court precedent, Judge Sotomayor offered at the hearing that the Sixth Circuit had addressed a similar issue in the same way. I can only assume she did so to imply that if the Sixth Circuit independently came to the same conclusion in a parallel case, then it would be difficult to say that Judge Sotomayor's decision in Ricci is controversial.
I would first note that in Oakley v. City of Memphis, the Sixth Circuit actually analyzed the case, applied the law to the facts, and issued a real opinion. I wish Judge Sotomayor had done that in her case. But more importantly, Judge Sotomayor failed to mention that the Sixth Circuit case was issued 3 months after hers and, in fact, relied upon her decision as persuasive authority. That is no evidence that her decision was procedurally or substantively sound.
Neither are her decisions on the Second Amendment right to keep and bear arms. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds States as well as the Federal Government. Several months later, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had discarded, that the right to bear arms does not apply to the States. She also held that the right to bear arms is so insignificant that virtually any conceivable reason is sufficient to justify a weapons restriction.
When I asked her about these decisions at the hearing, she refused to acknowledge that the Supreme Court's so-called rational basis test is its most permissive legal standard. Yet this is practically a self- evident truth in the law, one that Judge Sotomayor herself cited and applied just last fall to uphold a weapons restriction in Maloney v. Cuomo.
She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner's lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held in Kelo v. City of New London that economic development can constitute the public use for which the Fifth Amendment allows the taking of private property. In Didden, however, the village had only announced a general plan for economic development. No taking of anyone's property had occurred. Mr. Didden sued only after the village actually took his property.
In yet another cursory opinion that for some reason took more than a year to produce, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the 3-year period for filing suit began not when the village actually took his property, but when the village earlier had merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Once again, Judge Sotomayor gave inadequate protection to a fundamental constitutional right.
In another effort to blunt the impact of such controversial decisions, Judge Sotomayor's supporters attempt to portray her as moderate by observing that on the Second Circuit, she agreed with Republican-appointed colleagues 95 percent of the time. On the one hand, this is one of several misguided attempts to defend her by suggesting that a calculator is all it takes properly to evaluate a judicial record. On
the other hand, however, this claim comes from the same Democratic Senators who voted against Justice Samuel Alito just a few years ago. On the Third Circuit, he had agreed with his Democratic-appointed colleagues 99 percent of the time over a much longer tenure. It shows how specious some of the arguments are.
Let me return to where I began. I believe that Judge Sotomayor is a good person. I respect her achievements and applaud her service to her community, the judiciary, and the country. While appointment of the first Puerto Rican Justice says a lot about America, however, I believe that appointing a Justice with her judicial philosophy says the wrong thing about the power and role of judges in our system of government.
A nominee's approach to judging is more important than her resume, especially on the Supreme Court where Justices operate with the fewest constraints. Judge Sotomayor has expressed particular admiration for Justice Benjamin Cardozo. His book on the judicial process contains a chapter titled ``The Judge as a Legislator'' in which he compares judges to legislators who decide difficult cases on the basis of personal reflections and life considerations. That sounds very much like President Obama's appointment standard and Judge Sotomayor's expressed judicial philosophy. I believe it is inconsistent with the limited role that America's founders prescribed for judges in our system of government.
My colleagues know that I take a generous approach to the confirmation process and I believe some deference to the President of the United States and his choice is appropriate. I have rarely voted against any judicial nominee and took very seriously the question of whether to do so now. To that end, I studied her speeches, articles, and cases. I spoke with experts and advocates from different perspectives. I participated in all three question rounds during the Judiciary Committee hearing.
But in the end, neither general deference to the President nor a specific desire to support a Hispanic nominee could overcome the serious conflicts between Judge Sotomayor's record and the principles about the judiciary and liberty in which I deeply believe.
I was the one who started the Republican Senatorial Hispanic Task Force and ran it for many years, bringing Democrats, Independents, and Republicans together in the best interest of the Hispanic community to try to give them more of a voice. I feel pretty deeply about Hispanic people, as I do all people.
I just want everybody to know that this took a lot of consideration on my part to come to the conclusion I have. I wish President Obama had taken a different course, but this is the decision I have to make in this case. As I say, I like Judge Sotomayor. I particularly like her life story and her wonderful family. I did not want to vote against her but I think I have explained here some of the serious concerns I have.
Exhibit 1
The Constitution as the Playbook for Judicial Selection
Orrin G. Hatch*
The Federalist Society plays an indispensable role in
educating our fellow citizens about the principles of
liberty, a task that is both critical and challenging. It is
critical because, as James Madison put it, ``a well-
instructed people alone can be permanently a free people.''
\1\ The ordered liberty we enjoy is neither self-generating
nor self-sustaining, but is based on certain principles that
require certain conditions. Knowledge and defense of those
principles and conditions will be the difference between
keeping and losing our liberty.
This educational challenge, however, has perhaps never been
more daunting. We live in a culture in which words mean
anything to anyone, celebrities substitute for statesmen, and
people are no longer well instructed. Forty-two percent of
Americans do not know the number of branches in the federal
government, and more than sixty percent cannot name all three
\2\ Four times as many Americans say that a detailed
knowledge of the Constitution is absolutely necessary as say
they actually have such knowledge.\3\ Twenty-one percent of
Americans believe the First Amendment protects the right to
own a pet.\4\
A few factors contribute to this state of affairs. Most
people get their information about the legal system only from
television. Unless people sue each other or commit crimes--
habits we really should not encourage--they will likely have
no firsthand knowledge or experience to draw from.
Furthermore, people hold lawyers in low esteem. If you plug
the term ``lawyer joke'' into Yahoo, it returns a whopping
25.7 million hits, a number on the rise almost as fast as the
national debt. The problem with lawyer jokes is that most
lawyers do not think they are funny and most other people do
not think they are jokes. This low view of lawyers means
people have little motivation to learn more about what
lawyers and judges really do.
The media do not help this state of affairs. The Harvard
Journal of Law & Public Policy recently published an
excellent article by Michigan Supreme Court Justice Stephen
Markman,\5\ who served as my chief counsel when I chaired the
Senate Judiciary Subcommittee on the Constitution in the
early 1980s. He describes how the media's penchant for
focusing on winners and losers significantly shapes and
distorts how people understand what judges actually do, often
for the worse.\6\
Nonetheless, the timing of this Essay is auspicious in
several respects. First, I write in the wake of two very
relevant Federalist Society student symposia, last year's
about the people and the courts \7\ and this year's about the
separation of powers.\8\ Second, President Obama has been
particularly clear from the time he was a candidate about his
intention to appoint judges who will exercise a strikingly
political version of judicial power.\9\ Third, he has already
started acting on that intention by making his first judicial
nominations.\10\ New Presidents typically make their first
judicial nominations in July or even August, yet the Senate
Judiciary Committee has already held a hearing on the
President's first nominee to the U.S. Court of Appeals, and
the President sent two more nominees to the Senate just a few
days ago.
Mark Twain popularized the notion that there are three
kinds of lies: lies, damned lies, and statistics.\11\ I
prefer Senator Daniel Patrick Moynihan's comment that you may
be entitled to your own opinion, but not your own set of
facts.\12\ Either way, I will statistically describe two
macro and two micro factors of the judicial confirmation
process to show its recent transformation before turning to
how it should be conducted going forward.
The two macro factors are hearings and confirmations. The
Judiciary Committee held hearings for fewer judicial nominees
during the 110th Congress than any Congress since before I
entered the Senate. This lack of hearings is not the result
of the Judiciary Committee's inability to multitask. Instead,
it is the result of a political choice, one that has been
reversed since the last election. The Judiciary Committee has
already held a hearing on President Obama's first appeals
court nominee, just two weeks after that nominee arrived in
the Senate.\13\ Under a Republican President, Judiciary
Committee Chairman Patrick Leahy waited an average of 197
days to give an appeals court nominee a hearing.\14\ The last
election amounted to the political equivalent of Drano, as
the confirmation pipes are now wonderfully unobstructed and
flowing freely once again.
Some might assume that Republicans demonstrate such strong
partisan preference, but they would be wrong. Since I was
first elected, Democrats running the Senate have granted
hearings to forty-one percent more Democratic than Republican
judicial nominees. When Republicans run the Senate, the
partisan differential is less than five percent.
Moving from the Judiciary Committee to the Senate floor,
the second macro factor is confirmations. In the last eight
years, President Bush had the slowest pace of judicial
confirmations of any President since Gerald Ford. Last year,
the Senate confirmed fewer judicial nominees than in any
President's final year since 1968, the end of the Johnson
Administration. By comparison, when I chaired the Judiciary
Committee during President Clinton's last year in office, the
Senate confirmed twice as many appeals court nominees as it
did last year.
As with hearings, the picture is not the same when
Republicans are in charge. When Democrats run the Senate,
they confirm forty-five percent more Democratic than
Republican judicial nominees. When Republicans run the
Senate, the differential is only nine percent.
At the ground level, the two micro factors in the
confirmation process are votes and filibusters. The Senate
has traditionally confirmed most unopposed lower court
nominees by unanimous consent rather than by time-consuming
roll call votes. From 1950 to 2000 the Senate confirmed only
3.2 percent of all district and appeals court nominees by
roll call vote. During the Bush presidency, that figure
jumped to nearly sixty percent. The percentage of roll calls
without a single negative vote nearly tripled. And under
President Bush, for the first time in American history, the
filibuster was used to defeat majority-supported judicial
nominees.\15\ With all due respect to Mark Twain, I think
these numbers accurately give you at least a taste for the
partisan division and conflict that now characterize the
judicial confirmation process. It has become, to edit Thomas
Hobbes just a bit, quite nasty and brutish.
Turning from what has been to what should be, I believe we
can get on a better path by, as Madison emphasized in The
Federalist No. 39, ``recurring to principles.'' \16\ The
judicial selection process has changed because ideas about
judicial power have changed. My basic thesis is this: Our
written Constitution and its separation of powers define both
judicial power and judicial selection. They define the
judicial philosophy
that is a necessary qualification for judicial service, and
they counsel that the Senate defer to the President when he
nominates qualified individuals.
Consider a judicial nomination as a hiring process based on
a job description. The job description of a judge is to
interpret and apply law to decide cases. This job description
does not mean whatever a President, political party, or
Senate majority wants it to mean. Our written Constitution
and its separation of powers set the judicial job
description. Interpreting written law must be different than
making written law. Because law written in statutes or the
Constitution is not simply words, but really the meaning of
the words, only those with authority to make law may
determine what the words of our laws say and what those words
mean. Judges do not have authority to make law, so they do
not have authority to choose what the words of our laws say
or what they mean. In other words, judges apply the law to
decide cases, but they may not make the law they apply.
Judges and the law they use to decide cases are two different
things. Judging, therefore, is about a process that
legitimates results, a process by which the law made by the
people and those they elect determines winners and losers.
The Constitution and its separation of powers compel this
judicial job description. This kind of judge is consistent
with limited government and the ordered liberty it makes
possible. Justice Markman's article describes what he calls a
``traditional jurisprudence--one that views the
responsibility of the courts to say what the law `is' rather
than what it `ought' to be.'' \17\ Such a philosophy of
judicial restraint--an understanding of the limited power and
role of judges--is a qualification for judicial service. This
is the kind of judge a President should nominate.
Our written Constitution and its separation of powers also
define how the confirmation stage of the judicial selection
process should operate. The Constitution gives the power to
nominate and appoint judges to the President, not to the
Senate. The best way to understand the Senate's role is that
the Senate advises the President whether to appoint his
nominees by giving or withholding its consent. I explored
this role in more detail in the Utah Law Review a few years
ago in the context of showing that the use of the filibuster
to defeat majority-supported judicial nominees is
inconsistent with the separation of powers.\18\ One basis on
which the Senate may legitimately withhold its consent to a
judicial nominee, however, is that the nominee is not
qualified for judicial service. Qualifications include more
than information on a nominee's resume. And with all due
respect to the American Bar Association, their rating does
not a qualification determine. Instead, qualifications for
judicial service include whether a nominee's judicial
philosophy--his understanding of a judge's power and role--is
in sync with our written Constitution and its separation of
powers.
Judges, after all, take an oath to support and defend the
Constitution of the United States. To be qualified for
judicial service, a nominee must believe there is such a
thing, that the supreme law of the land is not simply in the
eye of the judicial beholder, and that judges need something
more than a legal education, a personal opinion, and an
imagination to interpret it.
I propose looking to the basic principles of our written
Constitution and its separation of powers to guide the
judicial selection process. For the President, those
principles require nominees with a restrained judicial
philosophy. For the Senate, they require deference to a
President's qualified nominees. Senators, of course, must
decide how to balance qualifications and deference. Our
written Constitution and its separation of powers, however,
provide normative guidance for the judicial selection
process. Presidents and Senators will have to decide, and be
accountable for, how they use or reject that guidance.
No matter how philosophically sound this proposal may be--
and I believe it is philosophically rock solid--it may
nevertheless be politically controversial. We have traveled a
long way from Alexander Hamilton describing the judiciary as
the weakest and least dangerous branch.\19\ We have traveled
a long way from the Supreme Court saying in 1795 that the
Constitution is ``certain and fixed; it contains the
permanent will of the people, and is the supreme law of the
land; it is paramount to the power of the Legislature, and
can be revoked or altered only by the authority that made
it.'' \20\ We have traveled a long way from the Senate
Judiciary Committee saying in 1872 that giving the
Constitution a meaning different from what the people
provided when adopting it would be unconstitutional.\21\
For a long time now, we have instead labored under Chief
Justice Charles Evans Hughes's notion that the Constitution
is whatever judges say it is.\22\ It has become fashionable
to suppose that the only law judges may not make is law we do
not like. Legal commentator Stuart Taylor correctly observes
that ``[l]ike a great, ever-spreading blob, judicial power
has insinuated itself into every nook and cranny.'' \23\ One
of my predecessors as Senator from Utah who later served on
the Supreme Court, George Sutherland, described the
transformation in 1937 as it was literally under way. He
warned that abandoning the separation of powers by ignoring
the distinction between interpreting and amending the
Constitution would convert ``what was intended as inescapable
and enduring mandates into mere moral reflections.'' \24\
Less than two decades later, Justice Robert Jackson described
what he saw as a widely held belief that the Supreme Court
decides cases based on personal impressions rather than
impersonal rules of law.\25\
Judicial power and judicial selection are inextricably
linked. Sometimes the Senate can appear to produce a lot of
activity but take very little action. To some, that means the
Senate is the world's greatest deliberative body. To others,
it means that it produces a lot of sound and fury signifying
nothing. But I hope that the debate over President Obama's
judicial nominees will really be a debate over the kind of
judge our liberty requires. The debate should be about
whether judges should decide cases by using enduring mandates
and impersonal rules of law or by using their own moral
reflections and personal impressions.
President Obama has already taken sides in this debate.
When he was a Senator, he voted against the nomination of
John Roberts to be Chief Justice, stating that judges decide
cases based on their deepest values, their core concerns, and
the content of their hearts.\26\ On the campaign trail, he
pledged that he would select judges according to their
empathy for certain groups such as the poor, African
Americans, gays, the disabled, or the elderly.\27\ The real
debate is about whether judges may decide cases based on
empathy at all, not the groups for which they have empathy.
It is about whether judges may make law at all, not about
what law judges should make. Conservatives as well as
liberals often evaluate judges and judicial decisions by
their political results rather than by their judicial
process. But a principle is just politics unless it applies
across the board. Professor Steven Calabresi, one of the
Federalist Society's founders, wrote last fall that
``[n]othing less than the very idea of liberty and the rule
of law are at stake in this election.'' \28\ He was right,
and they remain at stake in the ongoing selection of federal
judges.
Judges have no authority to change the law, regardless of
whether they change it in a way I like. I am distinguishing
here between judicial philosophy, which relates to process,
and political ideology, which relates to results. Senators
often reveal their view of judicial power when participating
in judicial selection, proving once again that the two are
inextricably linked. During the debate over Chief Justice
Roberts's nomination, for example, one of my Democratic
colleagues wanted to know whether the nominee would stand
with families or with special interests. She said the
American people were entitled to know how he would decide
legal questions even before he had considered them.\29\
Another Democratic Senator similarly said that the real
question was whose side the nominee would be on when he
decided important issues.\30\ Would he be on the side of
corporate or consumer interests, the side of polluters or
Congress when it seeks to regulate them, or the side of labor
or management?
In this activist view of judicial power, the desired ends
defined by a judge's empathy justify whatever means he uses
to decide cases. This activist view of judicial power is at
odds with our written Constitution and its separation of
powers and, therefore, with ordered liberty itself. The
people are not free if they do not govern themselves. The
people do not govern themselves if their Constitution does
not limit government. The Constitution cannot limit
government if judges define the Constitution.
Terry Eastland aptly described the result of judicial
activism in a 2006 essay titled The Good Judge: ``The
people's text, whether made by majorities or, in the case of
the Constitution, supermajorities, would be displaced by the
judges' text. The justices became lawmakers.'' \31\ This
quotation highlights one of the many differences between God
and federal judges. God, at least, does not think He is a
federal judge. And it brings up the question of how many
federal judges it takes to screw in a light bulb. Only one,
because the judge simply holds the bulb as the entire world
revolves around him.
There is perhaps some reason for optimism. One poll found
last year that, no matter for whom they voted, nearly three-
quarters of Americans said they wanted judges ``who will
interpret and apply the law as it is written and not take
into account their own viewpoints and experiences.'' \32\
This debate is indeed the one we should be having, whether
judges have the power to make law. When judges apply law they
have properly interpreted rather than improperly made, their
rulings may have the effect of helping or hurting a
particular cause, of advancing or inhibiting a particular
agenda. They may, at least by the political science bean
counters, be considered liberal or conservative. The point,
therefore, is not which side wins in a particular case, but
whether the winner is decided by the law or by the judge.
When judges interpret law, the law produces the results.
Thus, the people can choose to change the law. When judges
make law, judges produce the results and the people are left
with no recourse at all. That state of affairs is the
antithesis of self-government.
Let me close by saying that the effort to defend liberty
never ends. Andrew Jackson reminded us as he left office in
1837 that ``eternal vigilance by the people is the price of
liberty; and that you must pay the price if you wish to
secure the blessing.'' \33\ The approach I outline
actually joins an effort that began long ago and reminds
me of a resolution passed by the Senate Republican
Conference in 1997:
Be it resolved, that the Republican Conference opposes
judicial activism, whereby life-tenured, unaccountable judges
exceed their constitutional role of interpreting already
enacted, written law, and instead legislate from the bench by
imposing their personal preference or views of what is right
or just. Such activism threatens the basic democratic values
on which our Constitution is founded.\34\
There you have it. Our written Constitution and its
separation of powers define both judicial power and judicial
selection. They require judicial restraint as a qualification
for judicial service and require Senate deference to a
President's qualified nominees. The weeks and months ahead
will provide opportunities to debate these principles and
their application. Nothing less than ordered liberty is at
stake. I know the Federalist Society will be right in the
thick of that debate.
endnotes
* United States Senator (R-Utah); J.D., University of
Pittsburgh School of Law, 1962; B.A., Brigham Young
University, 1959. This Essay was delivered as a speech to the
Harvard Law School Federalist Society and Harvard Journal of
Law & Public Policy at the Union Club in Boston,
Massachusetts, on April 4, 2009.
1. James Madison, Second Annual Message, in 8 The Writings
of James Madison 123, 127 (Gaillard Hunt ed., 1908).
2. Press Release, Nat'l Constitution Ctr., Startling Lack
of Constitutional Knowledge Revealed in First-Ever National
Poll (1997).
3. Steve Farkas et al., Knowing it by Heart: Americans
Consider the Constitution and its Meaning 16 (2002),
available at http://www.publicagenda.;org/files/pdf/
knowing_by_heart.pdf.
4. Christopher Lee, Noted with Interest, Wash. Post, Mar.
3, 2006, at A15; see also McCormick Tribune Freedom Museum,
Americans' Awareness of First Amendment Freedoms, Forum for
Education and Democracy, Mar. 1, 2006, http:// www.forumforeducation.org/node/147.
5. Stephen J. Markman, An Interpretivist Judge and the
Media, 32 Harv. J.L. & Pub. Pol'Y 149 (2009).
6. Id. at 151-52.
7. Symposium, The People & The Courts, 32 Harv. J.L. & Pub.
Pol'y 1 (2009).
8. Symposium, Separation of Powers in American
Constitutionalism, 33 Harv. J.L. & Pub. Pol'y (forthcoming
2010).
9. See infra notes 26-27.
10. President Obama has nominated David Hamilton to the
U.S. Court of Appeals for the Seventh Circuit, Gerard Lynch
to the Second Circuit, and Andre Davis to the Fourth Circuit.
Michael A. Fletcher, Obama Names Judge to Appeals Court,
Wash. Post, Mar. 18, 2009, at A4; Jerry Markon, Obama Taps 2
for Key Appellate Courts, Wash. Post, Apr. 3, 2009, at A6.
Each is currently a U.S. District Judge.
11. Mark Twain, Chapters from My Autobiography-XX, 186 N.
Am. Rev. 465, 471 (1907) (quoting Benjamin Disraeli).
12. Timothy J. Penny, Facts Are Facts, Nat'l Rev. Online,
Sept. 4, 2003, http://www.nationalreview.com/nrof_comment/ comment-penny090403.asp.
13. President Obama nominated David Hamilton to the Seventh
Circuit on March 17, 2009. Fletcher, supra note 10. His
hearing was on April 1, 2009. U.S. Senate Judiciary Comm.,
Official Hearing Notice (Apr. 1, 2009), http:// judiciary.senate.gov/hearings/hearing.cfm?id=3757.
14. This statistic, like those that follow, was compiled by
Senator Hatch's staff from sources including the
Congressional Record; Federal Judicial Center, Biographical
Directory of Federal Judges, http://www.fjc.gov/public/ home.nsf/hisj; The Library of Congress, Legislative
Information Service Databases, http://thomas.loc.gov/; and
the records of the Senate Judiciary Committee and Senator
Hatch's staff. The statistics are on file with Senator
Hatch's staff.
15. See Orrin G. Hatch, Judicial Nomination Filibuster
Cause and Cure, 2005 Utah L. Rev. 803, 819--23.
16. The Federalist No. 39, at 240 (James Madison) (Clinton
Rossiter ed., 1961).
17. Markman, supra note 5, at 149.
18. See Hatch, supra note 15, at 82631.
19. The Federalist No. 78 (Alexander Hamilton).
20. Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 308 (1795).
21. See Raoul Berger, Original Intention in Historical
Perspective, 54 Geo. Wash. L. Rev. 296, 297--98 (1986)
(citing S. Rep. No. 21, 42d Cong., 2d Sess. 2 (1872)).
22. Charles Evans Hughes, Speech before the Elmira Chamber
of Commerce, May 3, 1907, in Addresses and Papers of Charles
Evans Hughes 133, 139 (Robert H. Fuller & Gardner Richardson
eds., 1908).
23. Stuart Taylor Jr., Imperial Judges Could Pick the
President--Again, 36 Nat'l J. 2877, 2877 (2004).
24. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404
(1937) (Sutherland, J., dissenting).
25. Brown v. Allen, 344 U.S. 443, 535 (1953) (Jackson, J.,
concurring in the result).
26. 151 Cong. Rec. S10366 (daily ed. Sept. 22, 2005)
(statement of Sen. Obama).
27. Posting of Mark Murray to First Read, http:// firstread.msnbc.msn.com/archive/2007/07/17/274143.aspx (July
17, 2007, 16:21 EDT) (report by Carrie Dann).
28. Steven G. Calabresi, Obama's ``Redistribution''
Constitution, Wall St. J., Oct. 28, 2008, at A17.
29. 109 Cong. Rec. S10641 (daily ed. Sept. 29, 2005)
(statement of Sen. Stabenow).
30. Interview by Matt Lauer with Senator Edward Kennedy,
available at http://www.tedkennedy.com/journal/165/senator- kennedy-nbctoday-show-interview.
31. Terry Eastland, The ''Good Judge'': Antonin Scalia's
two decades on the Supreme Court, Wkly. Standard, Nov. 13,
2006.
32. Press Release, The Federalist Society, Key Findings
from a National Survey of 800 Actual Voters (Nov. 5, 2008),
available at http://www.fed-soc.org/publications/pubid.1183/ pub_detail.asp.
33. Andrew Jackson, Farewell Address, in 2 The Statesman's
Manual: The Addresses and Messages of the Presidents of the
United States 947, 957 (Edwin Williams ed., New York, Edward
Walker 1846).
34. On file with Author.
Exhibit 2
[From the National Journal, Aug. 4, 2009]
(By Stuart Taylor Jr.)
Did Precedent Make Sotomayor Rule Against Ricci?
Judge Sonia Sotomayor has not defended her most widely
criticized decision--the one rejecting a discrimination
lawsuit by 17 white firefighters, and one Hispanic, against
the city of New Haven, Conn.--as a just or fair result.
That would have been an uphill battle: Polls in June showed
that huge majorities of the public wanted the Supreme Court
to reverse Sotomayor's decision.
And as I've explained elsewhere, although the Supreme Court
split 5-4 in ruling for the firefighters in Ricci v.
DeStefano, all nine justices rejected the specific legal rule
applied by Sotomayor's three judge panel. That rule would
allow employers to deny promotions after the fact to those
who did best on any measure of qualifications--no matter how
job-related and racially neutral--on which blacks or
Hispanics did badly.
Instead of defending her panel's quota-friendly rule and
its harsh impact on the high-scoring firefighters, Sotomayor
and her supporters have argued that she essentially had no
choice. The rule that her panel applied had been dictated,
they say, by three precedents of her own court, the U.S.
Court of Appeals for the 2nd Circuit.
Some critics have expressed skepticism about this claim,
but the media have shed little light on its plausibility. I
seek to shed some below.
Because some of this gets technical, I'll begin with
critics' simplest rebuttal to Sotomayor's precedent-made-me-
do-it claim:
Even assuming for the sake of argument that the Sotomayor
panel's decision was dictated by the three 2nd Circuit
precedents, it is undisputed that the full 2nd Circuit could
have modified or overruled them if Sotomayor had voted to
rehear the case en banc, meaning with all active 2nd Circuit
judges participating. Instead, Sotomayor cast a deciding vote
in the 7-6 decision not to rehear the case, suggesting she
was satisfied with the ruling.
There is also ample reason to doubt that any of the three
2nd Circuit precedents actually required the Sotomayor panel
to rule as it did, as some politicized professors have
pretended.
Sotomayor fleshed out her vague testimony about the issue
in answers to senators' written questions. She quoted her 2nd
Circuit colleague Barrington Parker's concurrence, which she
and three other judges had joined, in the 7-6 vote not to
rehear Ricci. Judge Parker wrote:
There was controlling authority in our decisions--among
them, Hayden v. County of Nassau [in 1999] and Bushey v. N.Y.
State Civil Serv. Comm'n [in 1984]. These cases clearly
establish for the circuit that a public employer, faced with
a prima facie case of disparate-impact liability under Title
VII, does not violate Title VII or the Equal Protection
Clause by taking facially neutral, albeit race-conscious,
actions to avoid such liability.
To unpack the legal language: Title VII is the employment
discrimination portion of the 1964 Civil Rights Act. Title
VII disparate-impact lawsuits are typically brought by blacks
or Hispanics who challenge as discriminatory employers' use
of objective tests on which those minorities do poorly. New
Haven's ostensible reason for denying promotions to the white
and Hispanic firefighters who had done well on qualifying
exams was fear of being hit with a disparate impact lawsuit
by blacks who had done poorly. And any black plaintiffs would
indeed have had a prima facie disparate-impact case, which is
legalese for proof that blacks had done much worse on the
tests than whites.
But Judge Parker gave short shrift to the fact that even
when plaintiffs have a prima facie case, an employer such as
the city ``could be held liable for disparate-impact
discrimination only if the examinations were not job related
and consistent with business necessity, or if there existed
an equally valid, less-discriminatory alternative,'' as the
Supreme Court stressed in Ricci.
In addition, Parker's reading of both Hayden and Bushey is
conspicuously overbroad. Their facts (especially Hayden's)
were quite different from those of Ricci. And Bushey has been
undermined by subsequent Supreme Court precedents and
legislation.
That's why Judge Jose Cabranes, in the main dissent from
the 2nd Circuit's 7-6 denial of rehearing en banc, began:
``This appeal raises important questions of first
impression''--meaning questions not controlled by precedent--
``in our circuit and, indeed, in the nation, regarding the
application of the Fourteenth Amendment's Equal
Protection Clause and Title VII's prohibition on
discriminatory employment practices.''
The question at the core of the case, Cabranes said, was:
``May a municipal employer disregard the results of a
qualifying examination, which was carefully constructed to
ensure race neutrality, on the ground that the results of the
examination yielded too many qualified applicants of one race
and not enough of another?''
This and other questions raised by the case, Cabranes
continued, were ``indisputably complex and far from well-
settled'' and ``not addressed by any precedent of the Supreme
Court or our Circuit,'' including Hayden and Bushey.
Ricci differed from Hayden in three critical respects.
First, as Cabranes explained, Hayden had approved Nassau
County's ``race-conscious design of an employment
examination,'' which was achieved mainly by eliminating tests
of cognitive skills. Ricci, on the other hand, involved
``race-based treatment of examination results'' (emphasis
added) to override local civil service laws under which
promotions are virtually automatic for the firefighters with
the best scores on job-related oral and written tests.
Second, Hayden stressed that the white plaintiffs ``cannot
establish that they were injured or disadvantaged'' by the
Nassau County test's race-conscious design. The Ricci
plaintiffs were very clearly injured: They were denied
promotions that they had done everything possible to earn
under New Haven's civil service laws, and thus were
``deprived of the pursuit of happiness on account of race,''
in the words of Washington Post columnist Richard Cohen.
Third, Hayden upheld the Nassau County exam's black-
friendly design in part ``to rectify prior discrimination''
by the county against blacks seeking police jobs. Ricci
involved no claim of prior discrimination by New Haven
against blacks.
Bushey was a lawsuit by whites challenging New York State's
race-norming of scores--by substantially raising each
minority applicant's score--on a qualifying exam to become a
correction captain. The 2nd Circuit's mixed ruling in the
case was entitled to little or no weight as a precedent in
Ricci for at least four reasons:
While Bushey held that the state could use unspecified
``race-conscious remedies'' to avert a lawsuit by minorities
who had done badly on a test, the 2nd Circuit ordered further
proceedings to determine whether the race-norming remedy
chosen by the state went too far, and violated Title VII by
``trammel[ing] the interests of nonminority candidates.'' In
Ricci, the Sotomayor panel gave no weight at all to the
interests of non-minority candidates.
In a key provision of the 1991 Civil Rights Act, Congress
banned the sort of race-norming that the state had used in
Bushey. This provision stated broadly that employers may not
``adjust the scores of, use different cutoff scores for, or
otherwise alter the results of employment-related tests on
the basis of race.'' Indeed, by throwing out (``altering''?)
the results of its test, New Haven arguably violated the 1991
provision, as well as others, in Ricci itself.
Bushey noted that the white plaintiffs' initial claims that
their constitutional rights had been violated ``are not
before us,'' because on appeal they had relied solely on
their Title VII claims. In Ricci, ``significant
constitutional claims . . . of first impression [were] at the
core of this case,'' as Cabranes wrote. The Sotomayor panel
completely ignored them.
The high-scoring firefighters' constitutional claims in
Ricci were especially strong because landmark Supreme Court
decisions in 1989 and 1995 had washed away the foundations of
Bushey and another 2nd Circuit decision cited by Sotomayor
defenders, Kirkland v. New York State Department of
Correctional Services (1980). The 1989 and 1995 decisions
held for the first time that (respectively) state and federal
favoritism toward blacks is just as suspect under the
Constitution as favoritism toward whites. ``Any preference
based on racial or ethnic criteria must necessarily receive a
most searching examination'' and be struck down unless
``narrowly tailored'' to serve a ``compelling'' governmental
interest, according to the 1995 decision, Adarand
Constructors v. Pena.
The justices' constitutional rulings seem quite contrary to
the 2nd Circuit's approach not only in Bushey but also in
Ricci, in which--Cabranes suggested--Sotomayor and her allies
``took the city's justifications at face value,'' ignoring
strong evidence that its decision to dump the test scores was
driven by racial politics, not legal principle. The result,
Cabranes said, was that ``municipal employers could reject
the results of an employment examination whenever those
results failed to yield a desired racial outcome--i.e. failed
to satisfy a racial quota.''
Later, in the Supreme Court's June 29 majority opinion in
Ricci, Justice Anthony Kennedy said it was unnecessary to
address the firefighters' constitutional claims because their
Title VII claims alone were sufficient to win the case. But
Kennedy stressed that there were ``few, if any, precedents in
the courts of appeals discussing the issue.''
The bottom line is that 2nd Circuit precedents did not make
Sotomayor rule as she did. Supreme Court precedent favored
the firefighters. Sotomayor's ruling was her own.