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Sen. Kohl Questions Judge Sonia Sotomayor During Her Supreme Court Confirmation Hearing

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What is your opinion of the Kelo decision, Judge Sotomayor? What is an appropriate, quote, "public use" for condemning private property?

SOTOMAYOR: Kelo is now a precedent of the court. I must follow it. I am bound by a Supreme Court decision as a Second Circuit judge.

As a Supreme Court judge, I must give it the deference that the doctrine of stare decisis, which suggests the question of the reach of Kelo has to be examined in the context of each situation, and the court did, in Kelo, note that there was a role for the courts to play in ensuring that takings by a state did, in fact, intend to serve the public -- a public purpose and public use.

I understand the concern that many citizens have expressed about whether Kelo did or did not honor the importance of property rights, but the question in Kelo was a complicated one about what constituted public use. And there, the court held that a taking to develop an economically blighted area was appropriate.

KOHL: Yes. That's what they decided in Kelo. I asked you your opinion, and apparently you feel that you're not in a position to offer an opinion because it's precedent, and now you're required to follow precedent as an appellate court judge. But I asked you if you would express your opinion, assuming that you became a Supreme Court Justice, and assuming that you might have a chance some day to review the scope of that decision.

SOTOMAYOR: I don't pre-judge issues. KOHL: OK.

SOTOMAYOR: That is actually -- I come to every case with an open mind.

KOHL: All right.

SOTOMAYOR: Every case is new for me.

KOHL: That's good. All right. Let's leave that.

As you know, Judge, the landmark case of Griswold v. Connecticut guarantees that there is a fundamental constitutional right to privacy as it applies to contraception. Do you agree with that? In your opinion, is that settled law?

SOTOMAYOR: That is the precedent of the court, so it is settled law.

KOHL: Is there a general constitutional right to privacy? And where is the right to privacy, in your opinion, found in the Constitution?

SOTOMAYOR: There is a right of privacy. The court has found it in various places in the Constitution, has recognized rights under those various provisions of the Constitution. It's found it in the Fourth Amendment's right and prohibition against unreasonable search and seizures.

Most commonly, it's considered -- I shouldn't say most commonly, because search and seizure cases are quite frequent before the court, but it's also found in the 14th Amendment of the Constitution when it is considered in the context of the liberty interests protected by the due process clause of the Constitution.

KOHL: All right. Judge, the court's ruling about the right to privacy in Griswold laid the foundation for Roe v. Wade. In your opinion, is Roe settled law?

SOTOMAYOR: The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.

KOHL: Do you agree with Justices Souter, O'Connor, and Kennedy in their opinion in Casey, which reaffirmed the core holding in Roe?

SOTOMAYOR: As I said, I -- Casey reaffirmed the holding in Roe. That is the Supreme Court's settled interpretation of what the core holding is and its reaffirmance of it.

KOHL: All right.

Let's talk a little bit about cameras in the court. You sit on a court of appeals which does allow cameras into court. And, from all indications, your experience with it has not been negative. In fact, I understand it's been somewhat positive.

So how would you feel about allowing cameras in the Supreme Court, where the country would have a chance to view discussions and arguments about the most important issues that the Supreme Court decides with respect to our Constitution, our rights, and our future?

SOTOMAYOR: I have had positive experiences with cameras. When I have been asked to join experiments of using cameras in the courtroom, I have participated. I have volunteered.

Perhaps it would be useful if I explain to you my approach to collegiality on a court. It is my practice, when I enter a new enterprise, whether it's on a court or in my private practice or when I was a prosecutor, to experience what those courts were doing or those -- those individuals doing that job were doing, understand and listen to the arguments of my colleagues about why certain practices were necessary or helpful or why certain practices shouldn't be done or new procedures tried, and then spend my time trying to convince them.

But I wouldn't try to come in with prejudgment so that they thought that I was unwilling to engage in a conversation with them or unwilling to listen to their views. I go in, and I try to share my experiences, to share my thoughts, and to be collegial and come to a conclusion together.

And I can assure you that, if this august body gives me the privilege of becoming a justice of the Supreme Court, that I will follow that practice with respect to the tall issues of procedure on the court, including the question of cameras in the courtroom.

KOHL: I appreciate the fact that, if you can't convince them, it won't happen. But how do you feel?

(LAUGHTER)

How do you feel about admitting cameras in the Supreme Court, recognizing that, you know, you cannot decree it by fiat?

SOTOMAYOR: You know, I'm a pretty...

KOHL: Think it's a good idea?

SOTOMAYOR: I'm a pretty good litigator, or I was a really good litigator, and -- and I know that when I worked hard at trying to convince my colleagues of something after listening to them, they'll often try it for a while. I mean, we'll have to talk together. We'll have to figure out that issue together.

KOHL: OK.

SOTOMAYOR: I will -- I would be, again, if I was fortunate enough to be confirmed, the new voice in the discussion. A new voices often see things and talk about them and consider taking new approaches.

KOHL: All right. Judge, all of us in public office, other than federal judges, have specific fixed terms. And we must periodically run for reelection if you want to remain in office. Even most state court judges have fixed terms of office.

The federal judiciary, as you know, is very different. You have no term of office. Instead you serve for life. So I'd like to ask you -- would you support term limits for Supreme Court justices, for example, 15, 20 or 25 years? Would this help ensure that justices do not become victims of a cloistered, ivory tower existence and that you will be able to stay in touch with the problems of ordinary Americans -- term limits for Supreme Court justices?

SOTOMAYOR: All questions of policy are within the providence of Congress first. And so, that particular question would have to be considered by Congress first. But it'd have to consider it in light of the Constitution and then of statutes that govern these issues. And so, that first step and decision would be Congress'.

I can only know that there was a purpose to the structure of our Constitution. And it was a view by the -- by the founding fathers that they wanted justices who would not be subject to political whim or to the emotions of a moment. And they felt that by giving them certain protections that that would ensure that -- their objectivity and their impartiality over time.

KOHL: Sure.

SOTOMAYOR: I do know, having served with many of my colleagues who have been members of the court, sometimes for decades -- I had one colleague who was still an active member of the court in his 90s. And at close to 90, he was learning the Internet and encouraging my colleagues of a much younger age to participate in learning the Internet.

So I don't think that it's service or the length of time. I think there is wisdom that comes to judges from their experience that helps them in the process over time. I think in the end it is a question of one of what the structure of our government is best served by. And as I said, that policy question will be considered first by Congress and the processes set forth by the Constitution. But I do think there is a value in the services of judges for long periods of time.

KOHL: All right, Judge. Finally, I'd like to turn to anti-trust law. Anti-trust law is not some mysterious legal theory, as you know, that only lawyers can understand. Anti-trust is just an old-fashioned word for fair competition, Judge. And it is a law we use to protect consumers and competitors alike from unfair and illegal trade practices.

A prominent anti-trust lawyer named Kyle Hittinger (ph) was quoted in an A.P. story recently of saying that, quote, "Judge Sotomayor has surprisingly broke the pro-business record in the area of anti-trust. In nearly every case in which she has -- she was one of the three judges considering a dispute, the court ruled against the plaintiff bringing an anti-trust complaint." I'd like you to respond to that and to one other thing I'd like to -- to raise.

In 2007, Leegin case in a 5-4 decision, Supreme Court overturned a 97-year-old precedent and held that vertical price fixing no longer automatically violated anti-trust law. In effect, this means that a manufacturer is now free to set minimum prices at retail for its products and, thereby, to prohibit discounting of its products.

What do you think of this decision? Do you think it was appropriate for the Supreme Court, by judicial fiat, to overturn a nearly century-old decision on the meaning of the Sherman Act that businesses and consumers had come it rely on and which had been never altered by Congress? Those two things -- anti-trust.

SOTOMAYOR: I cannot speak, Senator, to whether Leegin was right or wrong. It's now the established law of the court. That case, in large measure, centered around the justices' different views of the effects of stare decisis on a question which none of them seemed to dispute that there were a basis to question the economic assumptions of the court in this field of law.

Leegin is the court's holding. Its teachings and holding I will have to apply in new cases, so I can't say more that what I know about it and what I thought the court was doing there.

With respect to my record, I can't speak for why someone else would view my record as suggesting a pro an anti approach to any series of cases. All of the businesses cases, as with all of the cases, my structure of approaching is the same. What is the law requiring?

I would note that I have cases that have upheld anti-trust complaints and uphold those cases going forward. I did it in my Visa- Mastercard anti-trust decision. And that was also a major decision in this field.

All I can say is that with business and the interest of any party before me, I will consider and apply the law as it is written by Congress and informed by precedent.

KOHL: Thank you very much, Judge Sotomayor.

I thank you, Mr. Chairman.

LEAHY: Thank you.

Judge Sotomayor, we've -- this would probably be an appropriate place to take a short break, and we will. And then what we will -- we will come back. At some point, we will break for the both the Republicans and the Democrats to be in a caucus lunch but it also gives you a chance to have lunch.

So we'll take a -- we'll take a 10-minute -- flexible 10-minute break. And I thank you for your patience here, Judge Sotomayor. And we'll be back.


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