TPM News

At the opening statements this morning of the Sonia Sotomayor confirmation hearings, Sen. Lindsay Graham (R-SC) told the Supreme Court nominee "unless you have a complete meltdown, you're going to get confirmed. And I don't think you will."

Graham's statements differ from other Republicans' opening statements, in which they attacked Sotomayor for alleged bias in the areas of ethnicity and gender - notably, Sens. Kyl, Grassley, and Coburn discussed this.

The senator from South Carolina also brought up twice that President Obama won the election in November, and that such "elections matter," rounding out his optimistic opening statement for Judge Sotomayor.

We've gotten some more information in recent days about that secret CIA program that the agency withheld key information from Congress about, and that CIA director Leon Panetta promptly shut down when he learned about it last month. But the new reports only raise more questions.

On Saturday, the New York Times reported that the CIA withheld information about the secret program "on direct orders" from then-Vice President Dick Cheney. The Times did not identify the program, but noted that, according to intelligence and congressional officials, it involved neither the CIA's interrogation program nor its domestic intelligence (e.g. warrantless wiretapping and surveillance) activities.

Read More →

Judge Sotomayor, let me also extend my welcome to you this morning and to your family. You are to be congratulated on your nomination.

Your nomination is a reflection of who we are as a country and it represents an American success story that we can all be proud of. Your academic and professional accomplishments - as prosecutor, private practitioner, trial judge and appellate judge - are exemplary. And as a judge, you have brought a richness of experience to the bench and to the judiciary which has been an inspiration for so many.

Today, we begin a process through which the Senate engages in its Constitutional role to "advise and consent" on your nomination. This week's hearing is the only opportunity we, and the American people, will have to learn about your judicial philosophy, your temperament, and your motivations before you put on the black robe and are heard from only in your judicial opinions.

The President has asked us to entrust you with an immense amount of power. Power which, by design, is free from political constraints, unchecked by the people, and unaccountable to Congress, except in the most extreme circumstances.

Our democracy, our rights, and everything we hold dear about America are built on the foundation of our Constitution. For more than 200 years, the Court has interpreted the meaning of the Constitution and in doing so guaranteed our most cherished rights. The right to equal education regardless of race. The right to an attorney and a fair trial for the accused. The right to personal privacy. The right to speak, vote and worship without interference from the government. Should you be confirmed, you and your colleagues will decide the future scope of our rights and the breadth of our freedoms. Your decisions will shape the fabric of American society for years to come.

That is why it is so important that over the course of the next few days, we gain a good understanding of what is in your heart and your mind. We don't have a right to know in advance how you will rule on cases which will come before you. But we need - and we deserve - to know what you think about fundamental issues such as civil rights, privacy, property rights, the separation of church and state, and civil liberties, to name a few. Some believe that the confirmation process has become thoroughly scripted, and that nominees are far too careful in cloaking their answers to important questions in generalities and with caveats about future cases. I recognize this concern, but I also hope that you recognize our desire to have a frank discussion with you about substantive issues.

These are not just concepts for law books. They are issues Americans care about. As crime plagues our communities, we navigate the balance between individual rights and the duty of law enforcement to protect and maintain order. As families struggle to make ends meet in these difficult times, we question the permissible role for government in helping get the economy back on track. As we continue to strive for equal rights in our schools and workplaces, we debate the tension between admissions policies and hiring practices that acknowledge diversity and those that attempt to be color-blind.

These issues invite all Americans to struggle with the dilemmas of democracy and the great questions of our Constitution. If we discuss them with candor, I believe we will have a conversation that the American people will profit from.

When considering Supreme Court nominees over the years, I have judged each one with a test of judicial excellence.

First, judicial excellence means the competence, character, and temperament that we expect of a Supreme Court Justice. He or she must have a keen understanding of the law, and the ability to explain it in ways that both the litigants and the American people will understand and respect, even if they disagree with the outcome.

Second, I look for a nominee to have the sense of values which form the core of our political and economic system. No one, including the President, has the right to require ideological purity from a member of the Supreme Court. But we do have a right to require that the nominee accept both the basic principles of the Constitution and its core values implanted in society.

Third, we want a nominee with a sense of compassion. This is a quality that I have considered with the last 6 Supreme Court Justices. Compassion does not mean bias or lack of impartiality. It is meant to remind us that the law is more than an intellectual game, and more than a mental exercise.

As Justice Black said, "The courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered or because they are non-conforming victims of prejudice and public excitement."

A Supreme Court Justice must be able to recognize that real people, with real problems are affected by the decisions rendered by the court. They must have a connection with and an understanding of the problems that people struggle with on a daily basis. Justice, after all, may be blind, but it should not be deaf.

As Justice Thomas told us at his confirmation hearing, it is important that a justice, "can walk in the shoes of the people who are affected by what the Court does." I believe this comment embodies what President Obama intended when he said he wanted a nominee with "an understanding of how the world works and how ordinary people live."

Your critics are concerned that your background will inappropriately impact your decision-making. But, it is impossible for any of us to remove ourselves from our life story with all of the twists and turns that make us who we are.

As you have acknowledged, "My experiences in life unquestionably shape my attitudes." And, I hope that we on this Committee can appreciate and relate to ourselves what you said next, "but I am cognizant enough that mine is not the only experience." You will have an opportunity before this Committee to assure us that your life experiences will impact but not overwhelm your duty to follow the law and Constitution.

After your confirmation to the Court of Appeals in 1998, you said about the discussions at your confirmation hearing, "So long as people of good will are participating in the process and attempting to be balanced in their approach, then the system will remain healthy." I hope our process will include a healthy level of balanced and respectful debate and I look forward to the opportunity to learn more about you and what sort of justice you aspire to be.

U.S. SENATOR BENJAMIN L. CARDIN (D-MD) CONFIRMATION HEARING FOR JUDGE SONIA SOTOMAYOR TO BE AN ASSOCIATE JUSTICE OF THE SUPREME COURT OF THE UNITED STATES OPENING STATEMENT

I am honored to represent the people of Maryland in the U.S. Senate, and to serve on the Judiciary Committee, as we consider one of our most important responsibilities - whether we should recommend to the full Senate the confirmation of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States.

The next term of the Supreme Court that begins in October is likely to consider fundamental issues that will impact the lives of all Americans. In recent years, there have been many important cases decided by the Supreme Court by a 5-4 vote. Each Justice can play a critical role in forming the needed consensus in our nation's highest court. A new Justice could - and very well may -- have a profound impact on the direction of the court.

Supreme Court decisions affect each and every person in our nation. I think of my own family history. My grandparents came to America more than 100 years ago. I am convinced that they came to America not only for greater economic opportunities, but because of the ideals expressed in our Constitution, especially the First Amendment guaranteeing religious freedom. My grandparents wanted their children to grow up in a country where they would be able to practice their Jewish faith and fully participate in their community and government. My father, one of their sons, became a lawyer, state legislator, circuit court judge and President of his synagogue. And now his son serves in the U.S. Senate.

While our Founding Fathers made freedom of religion a priority, equal protection for all races took longer to achieve. I attended Liberty School No. 64, a public elementary school in Baltimore City. It was part of a segregated public school system that - under the law - denied every student in Baltimore the opportunity to learn in a classroom that represented the diversity of our community.

I remember with great sadness how discrimination was not only condoned but, more often than not, actually encouraged against Blacks, Jews, Catholics, and other minorities in the community. There were neighborhoods that my parents warned me to avoid for fear of my safety because I was Jewish. The local movie theater denied admission to African Americans. Community swimming pools had signs that said "No Jews, No Blacks Allowed." Even Baltimore's amusement parks and sports clubs were segregated by race. Then came Brown vs. Board of Education and, suddenly, my universe and community were changed forever.

The decision itself moved our nation forward by correcting grievous wrongs that were built into the law. It also brought to the forefront of our national consciousness a great future jurist from Baltimore - Thurgood Marshall. Marshall had been denied admission to the University of Maryland Law School due to the color of his skin but went on to represent the plaintiff in the 1954 landmark Brown vs. Board of Education. And in 1967, it was Marshall - the grandson of a slave - who was appointed by President Lyndon Johnson as the first African American to serve on the Supreme Court.

The nine justices of the United States Supreme Court have the tremendous responsibility of safeguarding the framers' intent and the guiding values of our Constitution while ensuring the protections and rights found in that very Constitution are applied to and relevant to the issues of the day. At times, the Supreme Court has and should look beyond popular sentiment to preserve these basic principles and the rule of law. The next justice, who will fill Justice Souter's place on the court, will be an important voice on these fundamental issues.

It is my belief that the Constitution and Bill of Rights were created to be living documents that stand together as the foundation for the rule of law in our nation. Our history reflects this. When the Constitution was written, African Americans were considered property and counted only as three-fifths of a person. Non-whites and women were not allowed to vote. Individuals were restricted by race as to whom they could marry. Decisions by the Supreme Court undeniably have moved our country forward, continuing the progression of Constitutional protections that have changed our Nation for the better.

Before the Court ruled in Brown vs. Board of Education that "separate was not equal," the law permitted our society to have separate facilities for black and white students. Before the Court ruled in Loving vs. Virginia, a state could prohibit persons from marrying based on race. Before the Court ruled in Roe vs. Wade, women had no constitutional implied right to privacy. These are the difficult questions that have come before the Court, and that the Framers could not have anticipated. New challenges will continue to arise but the basic framework of protections remains.

I want to complement President Obama in forwarding to the U.S. Senate a nominee, Judge Sonia Sotomayor, who is well qualified for our consideration. Her well-rounded background, including extensive experiences as a prosecutor, trial judge and appellate judge, will prove a valuable addition to our nation's highest court.

As a relatively new member of the Senate Judiciary Committee, as I prepared for this week, I considered a few key standards that I apply to all judicial nominations. First, I believe nominees must have an appreciation for the Constitution and the protections it provides to each and every American. She (or he) must embrace a judicial philosophy that reflects mainstream American values, not narrow ideological interests. They should have a strong passion to continue the Court's advances in Civil Rights. There is a careful balance to be found here: our next Justice should advance the protections found in our Constitution, but not disregard important precedent that has made our society stronger by embracing our civil liberties. I believe judicial nominees also must demonstrate a respect for the rights and responsibilities of each branch of government.

These criteria allow me to evaluate a particular judge and whether she or he might place their personal philosophy ahead of the responsibility of the office. The First Congress enacted the Judiciary Act of 1789, which requires judges to swear or affirm that they 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 on me, according to the best of my abilities and understanding, agreeably to the Constitution, and laws of the United States, so help me God."

As this Committee begins considering the nomination of Sonia Sotomayor, I want to quote Justice Thurgood Marshall, who said, "None of us got where we are solely by pulling ourselves up by our bootstraps." Judge Sotomayor is a perfect example of how family, hard work, supportive professors and mentors, and opportunity can all come together to create a real American success story.

She was born in New York, to a Puerto Rican family, and grew up in a public housing project in the South Bronx. Her mother was a nurse and her father was a factory worker with a third-grade education. She was taught early in life that education is the key to success, and her strong work ethic enabled her to excel in school and graduate valedictorian of her high school. She attended Princeton University, graduating cum laude and Phi Beta Kappa, and she received the highest honor Princeton awards to an undergraduate. At Yale Law School, she was editor of the Law Review, where she was known to stand up for herself and not to be intimidated by anyone.

Nominated by both Democratic and Republican presidents, for 17 years she has been a distinguished jurist and now has more federal judicial experience than any Supreme Court nominee in the last hundred years.

At this time, I also want to recognize Justice David Souter; the justice whose vacancy Judge Sotomayor has been nominated to fill. His jurisprudence is rightly characterized as thoughtful and independent, crafted to keep faith with the requirements of justice and the duties of the judiciary. I thank him for his work.

This week's hearings are essential. With some understanding of the context of Judge Sotomayor's life and the role that she potentially is about to fill on the Supreme Court, I believe it is particularly important during this confirmation hearing to question Judge Sotomayor on the guiding principles she would use on reaching decisions. For example, it is important for me to understand her interpretation of "established precedent" on protecting individual Constitutional rights. I believe it would be wrong for Supreme Court Justices to turn their back on landmark Court precedents protecting individual Constitutional rights.

It is likely that the Supreme Court will consider important protections in our Constitution for women, our environment and consumers, as well as voting rights, privacy, and the separation of church and state, among others, in coming years. The Supreme Court also has recently been active in imposing limits on executive power. It will continue to deal with the Constitutional rights in our criminal justice system, the rights of terror detainees and the rights of non-citizens.

All of these issues test our Nation's - and the Supreme Court's - commitment to our founding principles and fundamental values. For this reason, we need to know how our nominee might approach these issues and analyzes these decisions.

I look forward to hearing from Judge Sotomayor on these issues and expect that she will share with this Committee, and the American People, her judicial views and her thoughts on the protections in our Constitution.

I want to thank Judge Sotomayor for her public service and readiness to take on this great responsibility for our Nation. I also wish to thank her family for their clear support and sacrifice that has brought us to this hearing today.

Thank you, Mr. Chairman and Ranking Member Sessions.

And welcome to the many members of Judge Sotomayor's family, who I know are exceptionally proud to be here today in support of her historic nomination.

Our presence here today is about a nominee who is supremely well-qualified, with experience on the district court and appellate court benches that is unmatched in recent history. It is about a nominee who, in 17 years of judging, has authored opinion after opinion that is smart, thoughtful, and judicially modest.

In short, Judge Sotomayor has stellar credentials. There's no question about that. Judge Sotomayor has twice before been nominated to the bench and gone through confirmation hearings with bipartisan support. The first time, she was nominated by a Republican President.

But most important, Judge Sotomayor's record bespeaks judicial modesty--something that our friends on the right have been clamoring for--in a way that no recent nominee's has. It is the judicial record, more than speeches and statements, more than personal background, that most accurately measures how "modest" a judicial nominee will be.

There are several ways of measuring modesty in the judicial record. I think that Judge Sotomayor more than measures up to each of them.

First, as we will hear in the next few days, Judge Sotomayor puts rule of law above everything else. Given her extensive and even-handed record, I am not sure how any member of this panel can sit here today and seriously suggest that she comes to the bench with a personal agenda. Unlike Justice Alito, she does not come to the bench with a record number of dissents.

Instead, her record shows that she is in the mainstream:

- She has agreed with your Republican colleagues 95 percent of the time;

- She has ruled for the government in 83 percent of immigration cases;

- She has ruled for the government in 92 percent of criminal cases;

- She has denied race claims in 83 percent of cases;

- She has split evenly in a variety of employment cases.

Second - and this is an important point because of her unique experience in the district court - Judge Sotomayor delves thoroughly into the facts of each case. She trusts that an understanding of the facts will lead, ultimately, to justice.

I would ask my colleagues to do this: examine a sampling of her cases in a variety of areas. In case after case after case, Judge Sotomayor rolls up her sleeves, learns the facts, applies the law to the facts, and comes to a decision irrespective of her inclinations or her personal experience.

- In a case involving a New York police officer who made white supremicist remarks, she upheld his right to make them; - In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it; - And she upheld the First Amendment right of a prisoner to wear religious beads under his uniform. And, in hot-button cases such as ones involving professional sports, she carefully adheres to the facts before her. She upheld the NFL's ability to maintain certain player restrictions, and she also ruled in favor of baseball players to end the Major League Baseball strike.

I'd rather have a Supreme Court justice whose clear and obvious agenda is to examine each case than one whose covert goal is to change the way that courts decide cases.

Third, Judge Sotomayor has hewed carefully to the text of statutes, even when doing so results in rulings that go against so-called "sympathetic" litigants.

In dissenting from an award of damages to injured plaintiffs in a maritime accident, she wrote "we start with the assumption that it is for Congress, not the federal courts, to articulate the appropriate standards to be applied as a matter of federal law."

Just short of four years ago, then-Judge Roberts sat where Judge Sotomayor is sitting. He told us that his jurisprudence would be characterized by "modesty and humility." He illustrated this with a now well-known quote: "Judges are like umpires. Umpires don't make the rules. They apply them."

Chief Justice Roberts was, and is, a supremely intelligent man with impeccable credentials. But many can debate whether during his four years on the Supreme Court he actually has called pitches as they come -- or has tried to change the rules.

But any objective review of Judge Sotomayor's record on the Second Circuit leaves no doubt that she has simply called balls and strikes for 17 years, far more closely than Chief Justice Roberts has during his four years on the Supreme Court.

More important, if Judge Sotomayor continues to approach cases on the Supreme Court as she has for the last 17 years, she will actually be modest. This is because she does not adhere to a philosophy that dictates results over the facts that are presented.

So, if the number one standard that conservatives use and apply is judicial "modesty and humility" - no activism on the Supreme Court - they should vote for Judge Sotomayor unanimously.

I look forward to the next few days of hearings, and to Judge Sotomayor's confirmation.

Statement of Senator Feinstein at Senate Judiciary Committee Confirmation Hearing on Supreme Court Nominee Sonia Sotomayor.

Thank you Mr. Chairman. Judge Sotomayor, congratulations on your nomination and welcome to the Senate Judiciary Committee.

I want to start out with a couple of personal words. Your nomination I view with a great sense of personal pride. You are indeed a very special woman. You have overcome adversity and disadvantages. You have grown in strength and determination and you have achieved respect and admiration for what has been a brilliant legal and judicial career.

If confirmed, you will join the Supreme Court with more federal judicial experience than any Justice in the past 100 years. And you bring with you 29 years of varied legal experience to the court. By this standard you are well-qualified.

You have 11 years as a federal appellate court judge. You have participated in 3,000 appeals, authored roughly 400 published opinions. In your six years on the federal court you were the trial judge in approximately 450 cases. For 4 years, you prosecuted crimes as an assistant district attorney in New York City. You spent eight years litigating business cases at a New York law firm.

What is unique about this broad experience is that you have seen the law truly from all sides.

On the district court you saw firsthand the actual impact of the law on people before you in both civil and criminal cases.

You considered, wrote and joined thousands of opinions clarifying the law and reviewing district court decisions in your time on the appellate court. Your eleven years there were a rigorous training ground for the Supreme Court.

It is very unique for a judge to have both levels of federal court experience and you will be the only one on the current supreme court with this background.

You were a prosecutor who tried murder, robbery and child pornography cases. So you know firsthand the impact of crime on a major metropolis and you have administered justice in the close and personal forum of a trial court.

You also possess a wealth of knowledge in the complicated arena of business law with its contract disputes, patent and copyright issues, and antitrust questions.

And as an associate and partner at a private law firm, you've tried complex civil cases in the areas of real estate, banking and contracts law, as well as intellectual property, which I'm told was a specialty of yours.

So you bring a deep and broad experience in the law to the Supreme Court.

In my 16 years on this committee, I have held certain qualities that a Supreme Court nominee must possess:

• First, broad and relative experience - you satisfy that.

• Second, strong and deep knowledge of the law and the Constitution - you satisfy that.

• Third, a firm commitment to follow the law - and you have in all of the statistics indicated that.

• Next, a judicial temperament and integrity - and you have both of those.

• Finally, mainstream legal reasoning. And there is everything in your record to indicate that.

Bottom line I believe your record indicates that you possess all of these qualities.

Over the past years of my service on this committee, I have found it increasingly difficult to know from answers to questions from this dais how a nominee will actually act as a Supreme Court justice, because answers here are often indirect and are increasingly couched in euphemistic phrases.

For example, nominees have often responded to our specific questions with phrases like: "I have an open mind," or yes, that is precedent "entitled to respect," or "I have no quarrel with that."

Of course, these phrases obfuscate and prevent a clear understanding of where a nominee really stands.

For example, several past nominees have been asked about the Casey decision, where the Court held that the government cannot restrict access to abortions that are medically necessary to preserve a woman's health.

Some nominees responded by assuring that Roe and Casey were precedents of the Court entitled to great respect. And in one of the hearings, through questioning by Senator Specter, this line of cases was acknowledged to have created a "super-precedent."

But once on the Court, the same nominees voted to overturn the key holding in Casey -- that laws restricting a woman's medical care must contain an exception to protect her health.

Their decision did not comport with the answers they gave here, and it disregarded stare decisis and the precedents established in Roe, in Ashcroft, in Casey, in Thornburgh, in Carhart I, and in Ayotte.

"Super precedent" went out the window and women lost a fundamental constitutional protection that had existed for 36 years.

Also, it showed me that Supreme Court justices are much more than umpires calling balls and strikes and that the word activist often is used only to describe opinions of one side.

As a matter of fact, in just two years, these same nominees have either disregarded or overturned precedent in at least eight other cases:

• A case involving assignments to attain racial diversity in school assignments, (Parents Involved in Community Schools v. Seattle School Dist. No. 1)

• A case overruling 70 years of precedent on the Second Amendment and federal gun-control law, (District of Columbia v. Heller)

• A case which increased the burden of proof on older workers to prove age discrimination, (Jack Gross v. FBL Financial Services)

• A case overturning a 1911 decision to allow manufacturers to set minimum prices for their products, (Leegin Creative Leather Products v. PSKS)

• A case overruling two cases from the 1960s on time limits for filing criminal appeals, (Bowles v. Russell)

• A case reversing precedent on the Sixth Amendment right to counsel, (Montejo v. Louisiana)

• A case overturning a prior ruling on regulation of issue ads relating to political campaigns, (FEC v. Wisconsin Right to Life)

• And a case disregarding prior law and creating a new standard that limits when cities can replace civil service exams that they believe may have discriminated against a group of workers, (Ricci v. DeStefano).

So I do not believe that Supreme Court justices are merely umpires calling balls and strikes. Rather I believe that they make the decisions of individuals who bring to the court their own experiences and philosophies.

Judge Sotomayor, I believe you are a warm and intelligent woman. I believe that you are well studied and experienced in the law with some 17 years of federal court experience involving 3,000 appeals and 450 trial cases.

So I believe you too will bring your experiences and philosophies to this highest court and I believe that will do only one thing - and that is to strengthen this high institution of our great country.

Thank you Mr. Chairman.

Statement of U.S. Senator Russ Feingold On the Nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States Senate Judiciary Committee

"The Supreme Court plays a unique and central role in the life of our nation. Those who sit as Justices have extraordinary power over some of the most important, and most intimate, aspects of the lives of American citizens. It is therefore not surprising at all that the nomination and confirmation of a Supreme Court Justice is such a widely anticipated and widely covered event. The nine men and women who sit on the court have enormous responsibilities, and those of us tasked with voting on the confirmation of a nominee have a significant responsibility as well. I consider this one of the most consequential things I must do as a United States Senator, and I am honored and humbled to have been given this role by the people of Wisconsin.

"The ultimate responsibility of the Supreme Court is to safeguard the rule of law, which defines us as a nation, and protects us all. In the past eight years, the Supreme Court has played a crucial role in checking some of the previous Administration's most egregious departures from the rule of law. Time after time in cases arising out of actions taken by the administration after September 11, the Court has said 'No. You have gone too far.'

"It said 'No' to the Bush Administration's view that it could set up a law-free zone at Guantanamo Bay. It said 'No' to the administration's view that it could hold a citizen in the United States incommunicado indefinitely, with no access to a lawyer. It said 'No' to the administration's decision to create military commissions without congressional authorization. And it said 'No' to the administration and to Congress when they tried to strip the constitutional right to habeas corpus from prisoners held at Guantanamo.

"These were courageous decisions, and in my opinion, they were correct decisions. They made plain, as Justice O'Connor wrote in the Hamdi decision in 2004, 'A state of war is not a blank check for the president when it comes to the rights of the nation's citizens.'

"These were also close decisions, some decided by a 5-4 vote. That fact underscores the unparalleled power that each Supreme Court justice has. In my opinion, one of the most important qualities that a Supreme Court justice must have is courage: courage to stand up to the president, and to Congress, in order to protect the constitutional rights of the American people and preserve the rule of law.

"I have touched on the crucial recent decisions of the Court in the area of executive power, but we know, of course, that there are countless past Supreme Court decisions that have had a major impact on many aspects of our national life. The Court rejected racial discrimination in education; it guaranteed the principle of 'one person, one vote'; it made sure that even the poorest person accused of a crime in this country can be represented by counsel; it made sure that newspapers can't be sued for libel by public figures for making a mistake; it protected the privacy of telephone conversations from unjustified government eavesdropping; it protected an individual's right to possess a firearm for private use, and it even decided a presidential election. It made these decisions by interpreting and applying open-ended language in our Constitution like 'equal protection of the laws,' 'due process of law,' 'freedom of the press,' 'unreasonable searches and seizures,' and 'the right to bear arms.' These momentous decisions were not simply the result of an umpire calling balls and strikes. Easy cases where the law is clear almost never make it to the Supreme Court. The great constitutional issues that the Supreme Court is called upon to decide require much more than mechanical application of universally accepted legal principles.

"That is why Justices need great legal expertise, but they also need wisdom, they need judgment, they need to understand the impact of their decisions on the parties before them and the country around them, from New York City to small towns like Spooner, Wisconsin, and they need a deep appreciation of and dedication to equality, to liberty, to democracy.

"That is why I suggest to everyone watching today that they be a little wary of a phrase they may hear at these hearings - 'judicial activism.' That term really has lost all usefulness, particularly since so many rulings of the conservative majority on the Supreme Court can fairly be described as 'activist' in their disregard for precedent and their willingness to ignore or override the intent of Congress. At this point, perhaps we should all accept that the best definition of a 'judicial activist' is a judge who decides a case in a way you don't like. Each of the decisions I mentioned earlier was undoubtedly criticized by someone at the time it was issued, and maybe even today, as being 'judicial activism.' Yet some of them are among the most revered Supreme Court decisions in modern times.

"Mr. Chairman, every senator is entitled to ask whatever questions he or she wants at these hearings and to look to whatever factors he or she finds significant in evaluating this nominee. I hope Judge Sotomayor will answer all questions as fully as possible. I will have questions of my own on a range of issues. Certainly, with the two most recent Supreme Court nominations, senators asked tough questions and sought as much information from the nominees as we possibly could get. I expect nothing less from my colleagues in these hearings. I'm glad, however, that Judge Sotomayor will finally have an opportunity to answer some of the unsubstantiated charges that have been made against her.

"One attack that I find particularly shocking is the suggestion that she will be biased against some litigants because of her racial and ethnic heritage. This charge is not based on anything in her judicial record because there is absolutely nothing in the hundreds of opinions she has written to support it. That long record - which is obviously the most relevant evidence we have to evaluate her - demonstrates a cautious and careful approach to judging. Instead, a few lines from a 2001 speech, taken out of context, have prompted some to charge that she is a racist. I believe that no one who reads the whole Berkeley speech could honestly come to that conclusion. The speech is actually a remarkably thoughtful attempt to grapple with a difficult issue not often discussed by judges - how do a judge's personal background and experiences affect her judging. And Judge Sotomayor concludes her speech by saying the following:

'I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me require.'

"Mr. Chairman, those are the words of a thoughtful, humble, and self-aware judge striving to do her very best to administer impartial justice for all Americans, from New York City to Spooner, Wisconsin. It seems to me that is a quality we want in our judges.

"Judge Sotomayor is living proof that this country is moving in the right direction on the issue of race, that doors of opportunity are finally starting to open to all of our citizens. Just as the election of President Obama gave new hope and encouragement to African American children all over this country, Judge Sotomayor's nomination will inspire countless Hispanic American children to study harder and dream higher, and that is something we should all celebrate.

"Let me again welcome and congratulate the nominee. I look forward to learning in these hearings whether she has the knowledge, the wisdom, the judgment, the integrity, and yes, the courage, to serve with distinction on our nation's highest court. Thank you Mr. Chairman."

Prepared Statement of Senator Chuck Grassley Senate Committee on the Judiciary Nomination Hearing of Sonia Sotomayor to be an Associate Justice on the United States Supreme Court Monday, July 13, 2009

Judge Sotomayor, congratulations on your nomination to be an Associate Justice on the Supreme Court of the United States. Welcome to the Judiciary Committee. I extend a warm welcome to your family and friends. They must all be very proud of your nomination, and rightfully so.

Judge Sotomayor, you have a distinguished legal and judicial record. No doubt it's one we'd expect of any individual nominated to be a Supreme Court Justice. You made your start from very humble beginnings. You overcame substantial obstacles and went on to excel at some of the nation's top schools. You became an Assistant District Attorney and successful private practice attorney in New York City. You've been on the federal bench as a district court and appellate court judge since 1992. These are all impressive legal accomplishments which certainly qualify you as Supreme Court material.

However, an impressive legal record and a superior intellect are not the only criteria we consider. To be truly qualified, the nominee must understand the proper role of a judge in society. That is, we want to be absolutely certain that the nominee will faithfully interpret the law and Constitution without personal bias or prejudice. This is the most critical qualification of a Supreme Court Justice - the capacity to set aside one's own feelings so he or she can blindly and dispassionately administer equal justice for all.

So the Senate has a constitutional responsibility of "advise and consent" to confirm intelligent, experienced individuals anchored in the Constitution, not individuals who will pursue personal and political agendas from the bench. Judge Sotomayor, you are nominated to the highest court of the land which has the final say on the law. As such, it's even more important for the Senate to ascertain whether you can resist the temptation to mold the Constitution to your own personal beliefs and preferences.

It's even more important for the Senate to ascertain whether you can dispense justice without bias or prejudice. Supreme Court Justices sit on the highest court of the land, so they aren't as constrained to follow precedent to the same extent as district or circuit judges.

There is a proper role of a judge in our system of limited government and checks and balances. Our democratic system of government demands that judges not take on the role of policy makers. That's a role properly reserved to legislators. The Supreme Court is meant to be a legal institution, not a political one. But some individuals and groups don't see it that way. They see the Supreme Court as ground zero for their political and social battles. They want Justices to implement their political and social agenda through the judicial process. That's not what our great American tradition envisioned - those battles are appropriately fought in the legislative branch. So it's incredibly important that we confirm the right kind of person to be a Supreme Court Justice.

Supreme Court nominees should respect the constitutional separation of powers. They should understand that the touchstone of being a good judge is the exercise of judicial restraint. Good judges understand that their job is not to impose their own personal opinions of "right" and "wrong." They know their job is to say what the law "is," rather than what they personally think it "ought to be." Good judges understand that they must meticulously apply the law and the Constitution, even if the results they reach are unpopular. Good judges know that the Constitution and the laws constrain judges every bit as much as they constrain legislators, executives and citizens. Good judges not only understand these fundamental principles, they live and breathe them.

President Obama said that he would nominate judges based on their ability to "empathize" in general and with certain groups in particular. This "empathy" standard is troubling to me. In fact, I'm concerned that judging based on 'empathy" is really just legislating from the bench.

The Constitution requires that judges be free from personal politics, feelings and preferences. President Obama's "empathy" standard appears to encourage judges to make use of their personal politics, feelings and preferences. This is contrary to what most of us understand to be the role of the judiciary.

Judge Sotomayor, President Obama clearly believes you measure up to his "empathy" standard. That worries me. I've reviewed your record and have concerns about your judicial philosophy. For example, in one speech, you doubted that a judge could ever be truly impartial. In another speech, you argued it'd be a "disservice both to the law and society" for judges to disregard personal views shaped by one's "differences as women or men of color." In yet another speech, you proclaimed that the court of appeals is where "policy is made." Your "wise Latina" comment starkly contradicts a statement by Justice O'Connor that "a wise old woman and a wise old man would eventually reach the same conclusion in a case." These statements go directly to your views of how a judge should use his or her background and experiences when deciding cases. Unfortunately, I fear they don't comport with what I and many others believe is the proper role of a judge or an appropriate judicial method.

The American legal system requires that judges check their biases, personal preferences and politics at the door of the courthouse. Lady Justice stands before the Supreme Court with a blindfold holding the scales of justice. Just like Lady Justice, judges and Justices must wear blindfolds when they interpret the Constitution and administer justice.

Judge Sotomayor, I'll be asking you about your ability to wear that judicial blindfold. I'll be asking you about your ability to decide cases in an impartial manner and in accordance with the law and Constitution. I'll be asking you about your judicial philosophy, whether you allow biases and personal preferences to dictate your judicial method.

Ideally, the Supreme Court shouldn't be made up of men and women who are on the side of one special group or issue. Rather, the Supreme Court should be made up of men and women who are on the side of the law and the Constitution. I'm looking to support a restrained jurist committed to the rule of law and the Constitution. I'm not looking to support a creative jurist who will allow his or her background and personal preferences to decide cases.

Judge Sotomayor, the Senate needs to do its job and conduct a comprehensive and careful review of your record and qualifications. You are nominated to a lifetime position on the highest court. The Senate has a tremendous responsibility to confirm an individual who has superior intellectual abilities, solid legal expertise, and an even judicial demeanor and temperament. Above all, we have a tremendous responsibility to confirm an individual who truly understands the proper role of a Justice.

I'll be asking questions about your judicial qualifications. However, I'm also committed to giving you a fair and respectful hearing, as is appropriate of all Supreme Court nominees.

Again, Judge Sotomayor, I congratulate you on your nomination.

Kyl Opening Statement at Sotomayor Hearing

"Many of Judge Sotomayor's public statements suggest that she may, indeed, allow, and even embrace, decision-making based on her biases and prejudices"

"I would hope every American is proud that a Hispanic woman has been nominated to sit on the Supreme Court. In fulfilling our advise and consent role, of course, we must evaluate Judge Sotomayor's fitness to serve on the merits, not on the basis of her ethnicity.

"With a background that creates a prima facie case for confirmation, the primary question I believe Judge Sotomayor must address in this hearing is her understanding of the role of an appellate judge. From what she has said, she appears to believe that her role is not constrained to objectively decide who wins based on the weight of the law, but who, in her opinion, should win. The factors that will influence her decisions apparently include her 'gender and Latina heritage' and foreign legal concepts that get her 'creative juices going.'

"What is the traditional basis for judging in America? For 220 years, presidents and the Senate have focused on appointing and confirming judges and justices who are committed to putting aside their biases and prejudices and applying law to fairly and impartially resolve disputes between parties. "This principle is universally recognized and shared by judges across the ideological spectrum. For instance, Judge Richard Paez of the Ninth Circuit - with whom I disagree on a number of issues -explained this in the same venue where, less than 24 hours earlier, Judge Sotomayor made her now-famous remarks about a 'wise Latina woman' making better decisions than other judges. Judge Paez described the instructions that he gave to jurors who were about to hear a case. 'As jurors,' he said, 'recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot--if you cannot set aside those prejudices, biases and passions--then you should not sit on the case.'

"And then Judge Paez said: 'The same principle applies to judges. We take an oath of office. At the federal level, it is a very interesting oath. It says, in part, that you promise or swear to do justice to both the poor and the rich. The first time I heard this oath, I was startled by its significance. I have my oath hanging on the wall in the office to remind me of my obligations. And so, although I am a Latino judge and there is no question about that--I am viewed as a Latino judge--as I judge cases, I try to judge them fairly. I try to remain faithful to my oath.'

"What Judge Paez said has been the standard for 220 years--it correctly describes the fundamental and proper role for a judge.

"Unfortunately, a very important person has decided it is time for change--time for a new kind of judge; one who will apply a different standard of judging, including employment of his or her empathy for one of the parties to the dispute. That person is President Obama; and the question before us is whether his first nominee to the Supreme Court follows his new model of judging or the traditional model articulated by Judge Paez. "President Obama, in opposing the nomination of Chief Justice Roberts, said that 'while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court . . . --what matters on the Supreme Court is those 5 percent of cases that are truly difficult. . . . In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision.' "How does President Obama propose judges deal with these hard cases? Does he want them to use judicial precedent, canons of construction, and other accepted tools of interpretation that judges have used for centuries? No, President Obama says that 'in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.'

"Of course, every person should have empathy, and in certain situations, such as sentencing, it may not be wrong for judges to be empathetic. The problem arises when empathy and other biases or prejudices that are 'in the judge's heart' become 'the critical ingredient' to deciding cases. As Judge Paez explained, a judge's prejudices, biases, and passions should not be embraced--they must be 'set aside' so that a judge can render an impartial decision as required by the judicial oath and as parties before the court expect.

"I respectfully submit that President Obama is simply outside the mainstream in his statements about how judges should decide cases. I practiced law for almost 20 years before every level of state and federal court, including the U.S. Supreme Court, and never once did I hear a lawyer argue that he had no legal basis to sustain his client's position, so that he had to ask the judge to go with his 'gut' or 'heart.' If judges routinely started ruling on the basis of their personal feelings, however well-intentioned, the entire legitimacy of the judicial system would be jeopardized.

"The question for this committee is whether Judge Sotomayor agrees with President Obama's theory of judging or whether she will faithfully interpret the laws and Constitution and take seriously the oath of her prospective office. "Many of Judge Sotomayor's public statements suggest that she may, indeed, allow, and even embrace, decision-making based on her biases and prejudices.

"The 'wise Latina woman' quote, which I referred to earlier, suggests that Judge Sotomayor endorses the view that a judge should allow her gender-, ethnic-, and experience-based biases to guide her when rendering judicial opinions. This is in stark contrast to Judge Paez's view that these factors should be 'set aside.'

"In the same lecture, Judge Sotomayor posits that 'there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging' and claims that '[t]he aspiration to impartiality is just that--it's an aspiration because it denies the fact that we are by our experiences making different choices than others.' No neutrality, no impartiality in judging? Yet, isn't that what the judicial oath explicitly requires?

"And according to Judge Sotomayor, 'Personal experiences affect the facts that judges choose to see. . . . I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.'

"Judge Sotomayor clearly rejected the notion that judges should strive for an impartial brand of justice. She has already 'accepted' that her gender and Latina heritage will affect the outcome of her cases. This is a serious issue, and it's not the only indication that Judge Sotomayor has an expansive view of what a judge may appropriately consider. In a speech to the Puerto Rican ACLU, Judge Sotomayor endorsed the idea that American judges should use 'good ideas' found in foreign law so that America does not 'lose influence in the world.'

"As I've explained on the floor of the Senate, the laws and practices of foreign nations are simply irrelevant to interpreting the will of the American people as expressed through our Constitution.

Additionally, the vast expanse of foreign judicial opinions and practices from which one might draw simply gives activist judges cover for promoting their personal preferences instead of the law. You can, therefore, understand my concern when I hear Judge Sotomayor say that unless judges take it upon themselves to borrow ideas from foreign jurisdictions, America is 'going to lose influence in the world.' That's not a judge's concern. "Some people will suggest that we shouldn't read too much into Judge Sotomayor's speeches and articles--that the focus should instead be on her judicial decisions. I agree that her judicial record is an important component of our evaluation, and I look forward to hearing why, for instance, the Supreme Court has reversed or vacated 80 percent of her opinions that have reached that body, by a total vote count of 52 to 19.

"But we cannot simply brush aside her extrajudicial statements. Until now, Judge Sotomayor has been operating under the restraining influence of a higher authority--the Supreme Court. If confirmed, there will be no such restraint that would prevent her from--to paraphrase President Obama--deciding cases based on her heart-felt views. Before we can faithfully discharge our duty to advise and consent, we must be confident that Judge Sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based upon the rule of law."

President Obama will host key labor leaders at the White House this afternoon to discuss a number of pressing issues, including the Employee Free Choice Act and health care.

The administration has put EFCA on the back burner, focusing instead on issues like economic recovery, health care, and climate change--much to the dismay of the very people the President will meet with today. But that doesn't mean there's no common ground. Labor has by and large been on board with Obama's health care push, and have by and large succeeded at taking a key financing scheme--a tax on employer-provided health care benefits--off the table, at a time when Democrats are trying desperately to cover the trillion-dollar up front cost of a reform bill.

On hand today will be the labor presidents of the National Labor Coordinating Committee, which was formed earlier this year by AFL-CIO, Change to Win, and the National Education Association. More on the meeting as details emerge.

TPMLivewire