Tuesday, July 14, 2009 10:17 AM
Review all exchanges organized by Senator
SEN. PATRICK LEAHY: Good morning, everybody.
Just so we can understand what's going on, I'm not sure whether we have votes or not today. To the extent if we do have votes, to the extent that we can keep the hearing going during votes and have different senators leave between them, we will. If we can't, then I will recess for those votes.
I will also have -- I guess we're one minute early here. With the way the traffic was today, I think some people are still having trouble getting in here. I talked with Senator Sessions about this -- excuse me -- and what we're going to do is have 30-minute rounds. We will go back and forth between -- between sides. And we will -- senators will be recognized based on seniority if they're there. If not, then we'll go to -- we'll go to the next person.
And with that, as I said yesterday when we concluded, and now the American people finally have heard from Judge Sotomayor, and I appreciate your opening statement yesterday. You've had weeks of silence. You have followed the traditional way of nominees. I think you've visited more senators than any nominee I know of for just about any position.
But the -- we get used to the traditional, the press is outside, questions are asked, you give a nice wave and keep going. But finally you're able to speak, and I think your statement yesterday went a long way to answering the critic and the naysayers.
And so we're going to start with the questions here. I would hope that everybody will keep their questions pertaining to you and to your background as a judge. You're going to be the first Supreme Court nominee in more than 50 years who served as a federal trial court judge, the first in 50 years to have served as both a federal trial court and a federal appellate court judge.
Let me ask you the obvious one. What are the qualities that a judge should possess. I mean, you've had time on both the trial court and the appellate court. What qualities should a judge have and how does that experience you've had -- how does that shape your approach -- your approach to being on the bench?
JUDGE SOTOMAYOR: Senator Leahy, yesterday, many of the senators emphasized that their -- the values they thought were important for judging, and central to many of their comments was the fact that a judge had to come to the process understanding the importance and respect the Constitution must receive in the judging process and an understanding that that respect is guided by, and should be guided by, a full appreciation of the limited jurisdiction of the court in our system of government, but understanding its importance as well.
That is the central part of judging. What my experiences on the trial court and the appellate court have reinforced for me is that the process of judging is a process of keeping an open mind. It's the process of not coming to a decision with a pre-judgment ever of an outcome and that reaching a conclusion has to start with understanding what the parties are arguing, but examining in all situations carefully the facts as they prove them or not prove them, the record as they create it, and then making a decision that is limited to what the law says on the facts before the judge.
LEAHY: Well, you -- let's go into some of the particulars on this. One of the things that I found appealing in your record, that you were a prosecutor, as many of us, both the ranking member and I had that privilege, and you worked on the front lines, an assistant district attorney in the Manhattan D.A.'s office.
Your former boss, District Attorney Robert Morgenthal, the dean of the American Prosecutors, said one of the most important cases you worked on was the prosecution of the man known as the Tarzan Burglar. He terrorized people in Harlem. He would swing on ropes into their apartments and rob them and steal, and actually killed three people.
Your co-counsel, Hugh Mo, described how you threw yourself into every aspect of the investigation, the prosecution of the case. You helped to secure a conviction, sentence of 62 years to life for the murders. Your co-counsel described you, quote, as a "Skilled legal practitioner who not only ruthlessly pursued justice for victims of violent crimes, but understood the root cause of crime and how to curb it."
How did that experience -- did that experience shape your views in any way as -- both as a lawyer but also as a judge? I mean, this was getting into about as nitty-gritty as you could into the whole area of criminal law.
SOTOMAYOR: I became a lawyer in the prosecutor's office. To this day, I owe who I have become as a -- who I became as a lawyer and who have --who I have become as a judge to Mr. Morgenthal. He gave me a privilege and honor in working in his office that has shaped my life.
When I say I became a lawyer in his office, it's because in law school, law schools teach you on hypotheticals.
SOTOMAYOR: They set forth facts for you. They give you a little bit of teaching on how those facts are developed, but not a whole lot. And then they ask you to opine about legal theory and apply legal theory to the facts before you.
Well, when you work in a prosecutor's office, you understand that the law is not legal theory. It's facts. It's what witnesses say and don't say. It's how you develop your position in the record. And then it's taking those facts and making arguments based on the law as it exists.
That's what I took with me as a trial judge. It's what I take with me as an appellate judge. It is respect that each case gets decided case by case, applying the law as it exists to the facts before you.
You asked me a second question about the Tarzan murderer case, and that case brought to life for me in a way that perhaps no other case had fully done before the tragic consequences of needless deaths.
In that case, Mr. Maddicks was dubbed "the Tarzan murderer" by the press because he used acrobatic feats to gain entry into apartments. In one case, he took a rope, placed it on a pipe on top of a roof, put a paint can at the other end, and threw it into a window in a building below and broke the window. He then swung himself into the apartment and, on the other side, shot a person he found.
He did that repeatedly, and, as a result, he destroyed families. I saw a family that had been in tact, with a mother living with three of her children, some grandchildren. They all worked at various jobs. Some were going to school.
They stood as they watched one of their -- the mother stood as she watched one of her children be struck by a bullet that Mr. Maddicks fired and killed him because the bullet struck the middle of his head.
That family was destroyed. They scattered to the four winds, and only one brother remained in New York who could testify. That case taught me that prosecutors, as all participants in the justice system, must be sensitive to the price that crime imposes on our entire society.
At the same time, as a prosecutor in that case, I had to consider how to ensure that the presentation of that case would be fully understood by jurors. And to do that, it was important for us as prosecutors to be able to present those number of incidences that Mr. Maddicks had engaged in, in one trial, so the full extent of his conduct could be determined by a jury.
SOTOMAYOR: There had never been a case quite like that, where an individual who used different acrobatic feats to gain entry into an apartment was tried with all of his crimes in one indictment. I researched very carefully the law and found a theory in New York law, called the Molyneax (ph) theory then, that -- that basically said if you can show a pattern that established a person's identity or assisted in establishing a person's identity -- simplifying the argument, by the way -- then you can try different cases together.
This was not a conspiracy under law because Mr. Maddicks acted alone. So I had to find a different theory to bring all his acts together. Well, a presented that to the trial judge. It was a different application of the law. But what I did was draw on the principles of the Molyneax (ph) theory. And arguing those principles to the judge, the judge permitted that joint trial of all of Mr. Maddox's activities.
In the end, carefully developing the facts in the case, making my record -- our record, I should say -- Mr. Moe's (ph) and my record complete -- we convinced the judge that our theory was supported by law.
That harkens back to my earlier answer which is that's what being a trial judge teaches you.
LEAHY: And you -- so you see it from both ends having, obviously, to a novel theory and now a theory that is well established in the law but was novel at that time. But you also, as a trial judge, you've seen theories brought in by prosecutors or by defense and you have to make your decisions based on those.
The fairly easy answer to that is you do, do you not?
SOTOMAYOR: Well, it's important to remember that, as a judge, I don't make law. And so the task for me as a judge is not to accept or not accept new theories; it's to decide whether the law, as it exists, has principles that apply to new situations.
LEAHY: Let's go into that because I -- you know, obviously, the Tarzan case is -- was unique at least. And as I said, Mr. Morgenthal singled that out as an example of the kind of lawyer you are.
And I find compelling your story about being in the apartment. I've stood in homes at three o'clock in the morning as they're carrying the body out from a murder. I can understand how you're feeling. But in applying the law and applying the facts, you told me once that, ultimately and completely, the law is what controls.
And I was struck by that when you did. And so there's been a great deal of talk about the Ricci case -- Ricci v. DeStephano. And you and two other judges were assigned this appeal involving firefighters in New Haven. The plaintiffs were challenging the decision to voluntarily discard the result of a paper-and-pencil test to measure leadership abilities.
LEAHY: Now, the legal issue that was presented to you in that case was not a new one, not in your circuit. In fact, there was a unanimous decade's old Supreme Court decision as well. In addition, in 1991, Congress acted to reinforce (inaudible) the law.
I might note that every Republican member of this committee still serving in the Senate supported that statement of the law. So you have a binding precedent. You and two other judges came to a unanimous decision. Your decision deferred to the district court's ruling allowing the city's voluntary determination that could not justify using that paper-and-pencil test under our civil rights laws and settled -- you said it was settled judicial precedent.
A majority of the Second Circuit later voted not to revisit the panel's unanimous decision; therefore, they upheld your decision.
So you had Supreme Court precedent. You had your circuit precedent. You upheld within the circuit. Subsequently, it went to the Supreme Court and five -- a bare majority -- five justices reversed the decision, and reversed their precedent, and many have said that they created a new interpretation of the law.
Ironically, if you had done something other than follow the precedent, some would be now attacking you as being an activist. You followed the precedent. So now they attack you as being biased and racist. It's kind of a unique thing. You're damned if you do and damned if you don't.
How do you react to the Supreme Court's decision in the New Haven firefighters case?
SOTOMAYOR: You are correct, Senator, that the panel, made up of myself and two other judges in the Second Circuit, decided that case on the basis of the very thorough 78-page decision by the district court and on the basis of established precedent.
The issue was not what we would do or not do, because we were following precedent, and you, when on (ph) circuit court, are obligated on a panel to follow established circuit precedent. The issue in Ricci was what the city did or could do when it was presented with a challenge to one of its tests that -- for promotion.
This was not a quota case; this was not an affirmative action case. This was a challenge to a test that everybody agreed had a very wide difference between the pass rate of a variety of different groups. The city was faced with the possibility recognized in law that the employees who were disparately impacted -- that's the terminology used in the law and is a part of the civil rights amendment that you were talking about in 1991 -- that those employees who could show a disparate impact, a disproportionate pass rate, that they could bring a suit and that then the employer had to defend the test that it gave.
The city here, after a number of days of hearings and a variety of different witnesses, decided that it wouldn't certify the test and it wouldn't certify it in an attempt to determine whether they could develop a test that was of equal value in measuring qualifications, but which didn't have a disparate impact.
And so the question before the panel was, was the decision a -- of the city based on race or based on its understanding of what the law required it to do?
SOTOMAYOR: Given Second Circuit precedent, Bushey v. New York State -- New York State Civil Services Commission, the panel concluded that the city's decision in that particular situation was lawful under established law.
The Supreme Court, in looking and review that case, applied a new standard. In fact, it announced that it was applying a standard from a different area of law and explaining to employers and the courts below how to look at this question in the future.
LEAHY: But when you were deciding the -- when you were deciding it, you had precedent from the Supreme Court and from your circuit that basically determined how -- determined the outcome you had to come up with. Is that correct?
LEAHY: And if today, now that the Supreme Court has changed their decision without you having to relitigate the case, it would -- it may open, obviously, a different result. Certainly, the circuit would be bound by the new decision even though it's only a 5-to-4 decision, a circuit would be bound by the new decision of the Supreme Court. Is that correct?
SOTOMAYOR: Absolutely, sir.
LEAHY: Thank you.
SOTOMAYOR: That is now the statement of the Supreme Court of how employers and the Court should examine this issue.
LEAHY: During the course of this nomination, there have been some unfortunate comments, including outrageous charges of racism made about you on radio and television. Some -- one person referred to you as being the equivalent of the head of the Ku Klux Klan. Another leader in the other party referred to you as -- as being a bigot.
And to the credit of the senators, the Republican senators as well as the Democratic senators, they have not repeated those charges. But you haven't been able to respond to any of these things. You've had to be quiet. Your critics have taken a line out of your speeches and twisted it, in my view, to mean something you never intended.
You said that, quote, you "would hope that a wise Latina woman with the richness of her experiences would reach wise decisions." I remember other justices -- the most recent one, Justice Alito -- talking about the experience of his immigrants -- the immigrants in his family and how that would influence his thinking and help him reach decisions.
What -- and you also said in your speech, I quote, that you "love America and value its lessons," that great things could be achieved in one works hard for it.
And then you said judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of the fairness and integrity based on reason of law. And I'll throw one more quote in there. It's what you told me that ultimately and completely, the law is what counts -- or the law is what controls.
So tell us, you've heard all of these charges and countercharges, the wise Latina and on and on. Here's your chance. You tell us -- you tell us what's going on here, Judge.
SOTOMAYOR: Thank you for giving me an opportunity to explain my remarks.
No words I have ever spoken for written have received so much attention.
SOTOMAYOR: I gave a variant of my speech to a variety of different groups, most often to groups of women lawyers or to groups, most particularly, of young Latino lawyers and students.
As my speech made clear in one of the quotes that you reference, I was trying to inspire them to believe that their life experiences would enrich the legal system, because different life experiences and backgrounds always do. I don't think that there is a quarrel with that in our society.
I was also trying to inspire them to believe that they could become anything they wanted to become, just as I had. The context of the words that I spoke have created a misunderstanding, and I want -- and misunderstanding -- and to give everyone assurances, I want to state up front, unequivocally and without doubt, I do not believe that any ethnic, racial or gender group has an advantage in sound judging. I do believe that every person has an equal opportunity to be a good and wise judge regardless of their background or life experiences.
What -- the words that I use, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey. I understood that sentiment to be what I just spoke about, which is that both men and women were equally capable of being wise and fair judges.
That has to be what she meant, because judges disagree about legal outcomes all of the time -- or I shouldn't say all of the time, at least in close cases they do. Justices on the Supreme Court come to different conclusions. It can't mean that one of them is unwise, despite the fact that some people think that.
So her literal words couldn't have meant what they said. She had to have meant that she was talking about the equal value of the capacity to be fair and impartial.
LEAHY: Well, and isn't that what -- you've been on the bench for 17 years. Have you set your goal to be fair and show integrity, based on the law?
SOTOMAYOR: I believe my 17-year record on the two courts would show that, in every case that I render, I first decide what the law requires under the facts before me, and that what I do is explain to litigants why the law requires a result. And whether their position is sympathetic or not, I explain why the result is commanded by law.
LEAHY: Well, and doesn't your oath of office actually require you to do that?
SOTOMAYOR: That is the fundamental job of a judge.
Let me (ph) talk to you about another decision that's been talked about, District of Columbia v. Heller. In that one, the Supreme Court held that the Second Amendment guarantees to Americans the right to keep and bear arms, and that it's an individual right.
LEAHY: I've owned firearms since my early teen years. I suspect a large majority of Vermonters do. I enjoy target shooting on a very regular basis at our home in Vermont. So I watched that decision rather carefully and found it interesting.
Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right? Is that correct?
SOTOMAYOR: Yes, sir.
LEAHY: Thank you.
And in the Second Circuit decision, Maloney v. Cuomo, you, in fact, recognized the Supreme Court decided in Heller that the personal right to bear arms is guaranteed by the Second Amendment of the Constitution against federal law restrictions. Is that correct?
SOTOMAYOR: It is.
LEAHY: And you accept and applied the Heller decision when you decided Maloney?
SOTOMAYOR: Completely, sir. I accepted and applied established Supreme Court precedent that the Supreme Court in its own opinion in Heller acknowledged, answered the -- a different question.
LEAHY: Well, that -- let me -- let me refer to that, because Justice Scalia's opinion in the Heller case expressly left unresolved and explicitly reserved as a separate question whether the Second Amendment guarantee applies to the states and laws adopted by the -- by the states.
Earlier this year, you were on a Second Circuit panel in a case posing that specific question, analyzing a New York state law restriction on so-called chuka sticks (ph), a martial arts device.
Now, the unanimous decision of your court cited Supreme Court precedent as binding on your decision, and that Supreme Court -- longstanding Supreme Court cases have held that the Second Amendment applies only to the federal government and not to the states.
And I noticed that the panel of the Seventh Circuit, including people like Judge Posner, one of the best-known very conservative judges, cited the same Supreme Court authority, agreed with the Second Circuit decision. We all know that not every constitutional right has been applied to the states by the Supreme Court. I know one of my very first cases as a prosecutor was a question of whether the Fifth Amendment guaranteed a grand jury indictment has been made applicable to the states. The Supreme Court has not held that applicable to the states.
Seventh Amendment right to jury trial, Eighth Amendment prohibition against excessive fines, these have not been made applicable to the states. And I understand that petitions asking -- seeking to have the Supreme Court revisit the question applied to the Second Amendment to the states are pending (inaudible) that case appears before the Supreme Court and you're there how you're going to rule, but would you have an open mind, as -- on the Supreme Court, in evaluating that, the legal proposition of whether the Second Amendment right should be considered fundamental rights and thus applicable to the states?
SOTOMAYOR: Like you, I understand that how important the right to bear arms is to many, many Americans. In fact, one of my godchildren is a member of the NRA. And I have friends who hunt. I understand the individual right fully that the Supreme Court recognized in Heller.
SOTOMAYOR: As you pointed out, Senator, in the Heller decision, the Supreme Court was addressing a very narrow issue, which was whether an individual right under the Second Amendment applied to limit the federal government's rights to regulate the possession of firearms. The court expressly -- Justice Scalia in a footnote -- identified that there was Supreme Court precedent that has said that that right is not incorporated against the states. What that term of incorporation means in the law is that that right doesn't apply to the states in its regulation of its relationship with its citizens.
In Supreme Court province (ph), the right is not fundamental. It's a legal term. It's not talking about the importance of the right in a legal term. It's talking about is that right incorporated against the states.
When Maloney (ph) came before the Second Circuit, as you indicated, myself and two other judges read what the Supreme Court said, saw that it had not explicitly rejected its precedent on application to the states and followed that precedent because it's the job of the Supreme Court to change it.
SOTOMAYOR: You asked me -- I'm sorry, Senator. I didn't mean...
LEAHY: No, no, go ahead.
SOTOMAYOR: ... to cut you off.
LEAHY: No, go ahead.
SOTOMAYOR: If you asked me whether I have an open mind on that question, absolutely. My decision in Maloney (ph) and on any case of this type would be to follow the precedent of the Supreme Court when it speaks directly on an issue. And I would not prejudge any question that came before me if I was a justice on the Supreme Court.
LEAHY: Let me just ask -- I just asked Senator Sessions if he might have one -- might want to ask one more question. And it goes to the area of prosecution. You've heard appeals in over 800 criminal cases. You affirmed 98 percent of the convictions for violent crimes, including terrorism cases. Ninety-nine percent of the time at least one of the Republican appointed judges on the panel agreed with you.
Let me just ask you about one, the United States vs. Giordano. It was a conviction against the mayor of Waterbury, Connecticut. The victim in that case are the young daughter and niece of a prostitute, young children who as young as nine and 11 were forced to engage in sexual acts with the defendant. The mayor was convicted under a law passed by Congress prohibiting the use of any facility or means of interstate commerce to transmit or contact information about persons under 16 for the purpose of illegal sexual activity.
You spoke for a unanimous panel in the Second Circuit, which included Judge Jacobs and Judge Hall. You upheld that conviction against the constitutional challenge that the federal criminal statute in question exceeded Congress' power in the commerce clause. I mention that only because I appreciate your deference to the constitutional congressional authority to prohibit illegal conduct. Did you have any difficulty in reaching the conclusion you did in the -- in the Giordano case?
SOTOMAYOR: No, sir.
LEAHY: Thank you. I'm glad you reached it.
And I appreciate Senator Sessions' forbearance.