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Opening Statement Of Senator Patrick Leahy (D-Vt.), Chairman, Committee On The Judiciary,

Confirmation Hearing On The Nomination Of Judge Sonia Sotomayor To Be An Associate Justice Of The U.S. Supreme Court

July 13, 2009


Today, we consider the nomination of Judge Sonia Sotomayor to be a Justice of the United States Supreme Court. Our Constitution assigns just 101 of us the responsibility to act on behalf of all 320 million Americans in considering this important appointment. The President has done his part and made an historic nomination. Now it is up to the Senate to do its part on behalf of the American people.

President Obama often quotes Dr. Martin Luther King, Jr.'s insight that "the arc of the moral universe is long, but it bends toward justice." Each generation of Americans has sought that arc toward justice. We have improved upon the foundation of our Constitution through the Bill of Rights, the Civil War amendments, the 19th Amendment's expansion of the right to vote to women, the Civil Rights Act of 1964 and Voting Rights Act of 1965, and the 26th Amendment's extension of the right to vote to young people. These actions have marked progress toward our more perfect union. This nomination can be another step along that path.

Judge Sotomayor's journey to this hearing room is a truly American story. She was raised by her mother, Celina, a nurse, in the South Bronx. Like her mother, Sonia Sotomayor worked hard. She graduated as the valedictorian of her class at Blessed Sacrament and at Cardinal Spellman High School in New York. She was a member of just the third class at Princeton University in which women were included. She continued to work hard, including reading classics that had been unavailable to her when she was younger and arranging tutoring to improve her writing. She graduated summa cum laude, Phi Beta Kappa, and was awarded the M. Taylor Senior Pyne Prize for scholastic excellence and service to the university, an honor awarded for outstanding merit.

After excelling at Princeton she entered Yale Law School, where she was an active member of the law school community. Upon graduation, she had many options but chose to serve her community in the New York District Attorney's Office, where she prosecuted murders, robberies, assaults and child pornography.

The first President Bush named her to the Federal bench in 1992, and she served as a trial judge for six years. President Clinton named her to the United States Court of Appeals for the Second Circuit where she has served for more than 10 years. She was confirmed each time by a bipartisan majority of the Senate.

Judge Sotomayor's qualifications are outstanding. She has more Federal court judicial experience than any nominee to the United States Supreme Court in 100 years. She is the first nominee in well over a century to be nominated to three different Federal judgeships by three different Presidents. She is the first nominee in 50 years to be nominated to the Supreme Court after serving as both a Federal trial judge and a Federal appellate judge. She will be the only current Supreme Court Justice to have served as a trial judge. She was a prosecutor and a lawyer in private practice. She will bring a wealth and diversity of experience to the Court. I hope all Americans are encouraged by Judge Sotomayor's achievements and by her nomination to the Nation's highest court. Hers is a success story in which all Americans can take pride.

Those who break barriers often face the added burden of overcoming prejudice. That has been true on the Supreme Court. Thurgood Marshall graduated first in his law school class, was the lead counsel for the NAACP Legal Defense Fund, sat on the United States Court of Appeals for the Second Circuit, and served as the Nation's top lawyer, the Solicitor General of the United States. He won a remarkable 29 out of 32 cases before the Supreme Court. Despite his qualifications and achievements, at his confirmation hearing, he was asked questions designed to embarrass him, questions such as "Are you prejudiced against the white people of the South?"

The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism and charges that he was a "radical". The commentary at the time included questions about "the Jewish mind" and how "its operations are complicated by altruism." Likewise, the first Catholic nominee had to overcome the argument that "as a Catholic he would be dominated by the pope."

I trust that all Members of this Committee here today will reject the efforts of partisans and outside pressure groups that have sought to create a caricature of Judge Sotomayor while belittling her record, her achievements and her intelligence. Let no one demean this extraordinary woman, her success, or her understanding of the constitutional duties she has faithfully performed for the last 17 years. I hope all Senators will join together as we did when we considered President Reagan's nomination of Sandra Day O'Connor as the first woman to serve on the Supreme Court and voted unanimously to confirm her.

This hearing is an opportunity for Americans to see and hear Judge Sotomayor for themselves and to consider her qualifications. It is the most transparent confirmation hearing ever held. Judge Sotomayor's decisions and confirmation materials have been posted online and made publicly available. The record is significantly more complete than that available when we considered President Bush's nominations of John Roberts and Samuel Alito just a few years ago. The Judge's testimony will be carried live on several television stations and live via webcast on the Judiciary Committee website.

My review of her judicial record leads me to conclude that she is a careful and restrained judge with a deep respect for judicial precedent and for the powers of the other branches of the government, including the law-making role of Congress. That conclusion is supported by a number of independent studies that have been made of her record, and shines through in a comprehensive review of her tough and fair record on criminal cases. She has a deep understanding of the real lives of Americans, the duty of law enforcement to help keep Americans safe, and the responsibilities of all to respect the freedoms that define America.

Unfortunately, some have sought to twist her words and her record and to engage in partisan political attacks. Ideological pressure groups have attacked her before the President had even made his selection. They then stepped up their attacks by threatening Republican Senators who do not oppose her.

In truth, we do not have to speculate about what kind of a Justice she will be because we have seen the kind of judge she has been. She is a judge in which all Americans can have confidence. She has been a judge for all Americans and will be a Justice for all Americans.

Our ranking Republican Senator on this Committee reflected on the confirmation process recently, saying: "What I found was that charges come flying in from right and left that are unsupported and false. It's very, very difficult for a nominee to push back. So I think we have a high responsibility to base any criticisms that we have on a fair and honest statement of the facts and that nominees should not be subjected to distortions of their record." I agree. As we proceed, let no one distort Judge Sotomayor's record. Let us be fair to her and to the American people by not misrepresenting her views. We are a country bound together by our Constitution. It guarantees the promise that ours will be a country based on the rule of law. In her service as a Federal judge, Sonia Sotomayor has kept faith with that promise. She understands that there is not one law for one race or another. There is not one law for one color or another. There is not one law for rich and a different one for poor. There is only one law. She has said that" ultimately and completely" a judge has to follow the law, no matter what their upbringing has been. That is the kind of fair and impartial judging that the American people expect. That is respect for the rule of law. That is the kind of judge she has been. That is the kind of fair and impartial Justice she will be and that the American people deserve.

Judge Sotomayor has been nominated to replace Justice Souter, whose retirement last month has left the Court with only eight Justices. Justice Souter served the Nation with distinction for nearly two decades on the Supreme Court with a commitment to justice, an admiration for the law, and an understanding of the impact of the Court's decisions on the daily lives of ordinary Americans. I believe that Judge Sotomayor will be in this same mold and will serve as a Justice in the manner of Sandra Day O'Connor, committed to the law and not to ideology.

In the weeks and months leading up to this hearing, I have heard the President and Senators from both sides of the aisle make reference to the engraving over the entrance of the Supreme Court. The words engraved in that Vermont marble say: "Equal Justice Under Law." Judge Sotomayor's nomination keeps faith with those words.

Opening Statement of US Senator Jeff Sessions (R-AL) at Judge Sotomayor's Supreme Court Confirmation Hearing - July 13, 2009

Before I begin, I want to thank Chairman Leahy for his openness and willingness to work together on the procedures for this hearing.

I hope it will be viewed as the best hearing this Committee has ever held.

Judge Sotomayor, I join Chairman Leahy in welcoming you here today.

This hearing marks an important milestone in your distinguished legal career. I know your family is proud, and rightfully so. It is a pleasure to have them with us today.

I expect this hearing and resulting debate to be characterized by a respectful tone, a discussion of serious issues, and a thoughtful dialogue, and I have worked hard to achieve that from day one.

I have been an active litigator in federal courts for the majority of my professional life. I have tried cases in private practice, as a federal prosecutor with the Department of Justice, and as Attorney General of the State of Alabama.

The Constitution and our great heritage of law are things I care deeply about--they are the foundation of our liberty and prosperity.

This nomination hearing is critically important for two reasons.

First, Justices on the Supreme Court have great responsibility, hold enormous power, and have a lifetime appointment.

Just five members can declare the meaning of our Constitution, bending or changing its meaning from what the people intended.

Second, this hearing is important because I believe our legal system is at a dangerous crossroads.

Down one path is the traditional American legal system, so admired around the world, where judges impartially apply the law to the facts without regard to their own personal views.

This is the compassionate system because this is the fair system.

In the American legal system, courts do not make the law or set policy, because allowing unelected officials to make laws would strike at the heart of our democracy.

Here, judges take an oath to administer justice impartially, which reads:

"I . . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States. So help me God."[1]

These principles give the traditional system its moral authority, which is why Americans respect and accept the rulings of courts--even when they lose.

Indeed, our legal system is based on a firm belief in an ordered universe and objective truth. The trial is the process by which the impartial and wise judge guides us to the truth.

Down the other path lies a Brave New World where words have no true meaning and judges are free to decide what facts they choose to see. In this world, a judge is free to push his or her own political and social agenda. I reject this view.

We have seen federal judges force their own political and social agenda on the nation, dictating that the words "under God" be removed from the Pledge of Allegiance[2] and barring students from even silent prayer in schools.[3]

Judges have dismissed the people's right to their property, saying the government can take a person's home for the purpose of developing a private shopping center.[4]

Judges have--contrary to the longstanding rules of war--created a right for terrorists, captured on a foreign battlefield, to sue the United States government in our own courts.[5]

Judges have cited foreign laws, world opinion, and a United Nations resolution to determine that a state death penalty law was unconstitutional.[6]

I'm afraid our system will only be further corrupted as a result of President Obama's views that, in tough cases, the critical ingredient for a judge is the "depth and breadth of one's empathy,"[7] as well as "their broader vision of what America should be."[8]

Like the American people, I have watched this for a number of years, and I fear this "empathy standard" is another step down the road to a liberal activist, results-oriented, and relativistic world where: • Laws lose their fixed meaning, • Unelected judges set policy, • Americans are seen as members of separate groups rather than simply Americans, and • Where the constitutional limits on government power are ignored when politicians want to buy out private companies.

So, we have reached a fork in the road. And there are stark differences between the two paths.

I want to be clear:

I will not vote for--no senator should vote for--an individual nominated by any President who is not fully committed to fairness and impartiality towards every person who appears before them.

I will not vote for--no senator should vote for--an individual nominated by any President who believes it is acceptable for a judge to allow their own personal background, gender, prejudices, or sympathies to sway their decision in favor of, or against, parties before the court.

In my view, such a philosophy is disqualifying.

Such an approach to judging means that the umpire calling the game is not neutral, but instead feels empowered to favor one team over the other.

Call it empathy, call it prejudice, or call it sympathy, but whatever it is, it is not law. In truth it is more akin to politics. And politics has no place in the courtroom.

Some will respond, "Judge Sotomayor would never say that it's acceptable for a judge to display prejudice in a case."

But, I regret to say, Judge Sotomayor has outlined such a view in many, many statements over the years.

Let's look at just a few examples:

We've all seen the video of the Duke University panel where Judge Sotomayor says "?it is [the] Court of Appeals where policy is made. And I know, and I know, that this is on tape, and I should never say that."[9]

And during a speech 15 years ago, Judge Sotomayor said, "I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt . . . continuously to judge when those opinions, sympathies, and prejudices are appropriate."[10]

And in the same speech, she said, "my experiences will affect the facts I choose to see as a judge."[11]

Having tried cases for many years, these statements are shocking and offensive to me.

I think it is noteworthy that, when asked about Judge Sotomayor's now-famous statement that a "wise Latina" would come to a better conclusion than others, President Obama, White House Press Secretary Robert Gibbs, and Supreme Court Justice Ginsburg declined to defend the substance of the nominee's remarks.

They each assumed that the nominee misspoke. But the nominee did not misspeak. She is on record making this statement at least five times over the course of a decade.

These are her own words, spoken well before her nomination. They are not taken out of context.

I am providing a copy of the full text of these speeches to the hearing room today.

Others will say that, despite these statements, we should look to the nominee's record, which they characterize as moderate. People said the same of Justice Ginsburg, who is now considered to be one of the most activist judges in history.

Some senators ignored Justice Ginsburg's philosophy and focused on the nominee's judicial opinions. But that is not a good test because those cases were necessarily restrained by precedent and the threat of reversal from higher courts.

On the Supreme Court, those checks on judicial power will be removed, and the judge's philosophy will be allowed to reach full bloom.

But even as a lower court judge, the nominee has made some very troubling rulings.

I am concerned by the nominee's decision in Ricci, the New Haven Firefighters case--recently reversed by the Supreme Court--where she agreed with the City of New Haven's decision to change its promotion rules in the middle of the game.

Incredibly, her opinion consisted of just one substantive paragraph of analysis concerning the major legal question involved in the case.

Judge Sotomayor has said that she accepts that her opinions, sympathies, and prejudices will affect her rulings. Could it be that her time as a leader of the Puerto Rican Legal Defense and Education Fund provides a clue as to her decision against the firefighters?

While the nominee was Chair of the Fund's Litigation Committee,[12] the organization aggressively pursued racial quotas in city hiring and, in numerous cases, fought to overturn the results of promotion exams.[13]

It seems to me that in Ricci, Judge Sotomayor's empathy for one group of firefighters turned out to be prejudice against the others.

That is, of course, the logical flaw in the "empathy standard." Empathy for one party is always prejudice against another.

Judge Sotomayor, we will inquire into how your philosophy, which allows subjectivity into the courtroom, affects your rulings on issues like:

• Abortion, where an organization in which you were an active leader argued that the Constitution requires that taxpayer money be used for abortions;

• Gun control, where you recently ruled that it is "settled law" that the Second Amendment does not prevent a city or state from barring gun ownership;

• Private property, where you have already ruled that the government could take property from one pharmacy developer and give it to another; and

• Capital punishment, where you personally signed a statement opposing the reinstatement of the death penalty because of the "inhuman[e] psychological burden" it places on the offender and his or her family.

I hope the American people will follow these hearings closely.

They should learn about the issues, and listen to both sides of the argument. And, at the end of the hearing, ask: 'If I must one day go to court, what kind of judge do I want to hear my case?

'Do I want a judge that allows his or her social, political, or religious views to change the outcome?

'Or, do I want a judge that impartially applies the law to the facts, and fairly rules on the merits, without bias or prejudice?'

It is our job to determine on which side of that fundamental divide the nominee stands.

We hear that House leaders may delay releasing their proposed health care reform bill yet another day. They were first set to unveil the draft at the end of last week, but postponed the event until today after a number of Democrats raised objections. Now it seems there's some chance may not happen either. We'll try to confirm that one way or another this afternoon.

Last month, I noted that House Minority Leader John Boehner had gone to battle against the Waxman-Markey bill with a bright blue board, designed without any logic other than to imply that cap-and-trade legislation is complicated.

That battle ultimately failed--the bill passed by a slim margin--but Republicans haven't given up on the weapon. Via Grist, I see that Sen. Kit Bond (R-MO) is taking up Boehner's arms as the fight moves to the Senate.

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Rep. Joe Sestak (D-PA) pulled in an impressive haul this past quarter, but he's still at least a few million behind his primary opponent, Sen. Arlen Specter (D-PA).

Specter had $6.7 million on hand at the end of the first quarter, after raising about $1.2 million--just about the same amount Sestak raised this quarter. But remember, that money was collected when Specter was a Republican. Since then he's become a Democrat, and has won the backing of almost the entire Democratic establishment. With that in mind, we eagerly await Specter's forthcoming financial disclosure.

This spring, TPMDC broke the news that Rep. Joe Sestak (D-PA) was raising money from supporters ahead of an intended Senate candidacy. Now, with the fiscal quarter over, we know how well that effort worked.

"Many have doubted that we would be able to raise sufficient money for our upcoming race against Arlen Specter," Sestak writes in a letter to supporters, "but we raised over $1 million last quarter ... thanks to you ... and now have over $4.2 million cash-on-hand, making us the number one Senate challenger in the nation!"

The letter, though, is also a fundraising appeal. "But we can't stop there; here's why we need to raise additional funds to continue this extraordinary momentum -- Arlen has decided to start running his 'GOP negative style campaign' against us!"

Sestak's referring to a recent dust-up, which touched off last week when Sen. Arlen Specter (D-PA) launched his first attack against his new rival.

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Sen. Tom Harkin (D-IA), who sits on the Senate Health, Education, Labor, and Pensions Committee, is at odds with some of his liberal colleagues. Unlike Sens. Bernie Sanders (I-VT) and Sherrod Brown (D-OH), Harkin thinks it may be hard to keep the 60 members of the Democratic caucus united against Republican filibusters--and that means the party may pass health care reform through the budget reconciliation process.

"I think Democrats being Democrats -- like Will Rogers once said, 'I'm a member of no organized political party: I'm a Democrat' -- I think that holds true today," Harkin told the Iowa Gazette.

Under those circumstances--and with Republicans largely united against all of President Obama's agenda items--how will Democrats possibly pass a major initiative like health care reform? In a budget reconciliation bill, it seems, which can't be filibustered. Harkin called that a "distinct possibility."

Democrats in both chambers are hoping to pass a health care bill through regular order by the beginning of August, and have it ready for the president to sign by October, ahead of the budget reconciliation bill--but time is running out.

House leaders have proposed financing about half the cost of a health care reform bill with a surtax on wealthy people--and something like that might fly in the lower chamber. But in the Senate? Here's Sen. Chuck Grassley (R-IA), ranking member of the Senate Finance Committee, now trying to figure out how to pay for it's own reform legislation.



Translated, once again, from Grassley's famous twitterese, that reads: "Charles Rangel [chairman of the House Ways and Means committee, who first announced the tax proposal] the wealthy one percent make 27 percent of total income and pay 40 percent of collected income tax. You suggest a five percent health care surtax. How much will the beleaguered wealthy have to pay to satisfy you? Let's talk."

Grassley's committee was expected to propose taxing employer-provided health benefits benefits to finance a health care system overhaul, but that idea seems to have been put on ice, leaving the taxation averse panel without a funding mechanism for their incomplete bill. The House's bill will be unveiled today.

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