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

CQ Transcriptions
Tuesday, July 14, 2009 11:09 AM

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SEN. HERB KOHL: Thank you very much, Mr. Chairman, and good morning, Judge Sotomayor.

JUDGE SOTOMAYOR: Good morning.

KOHL: Senator Sessions has spent a great deal of time on the New Haven case, and so I would like to see if we can't put it into some perspective. Isn't it true that Ricci was a very close case? Isn't it true that 11 of the 22 judges the reviewed the case did agree with you and that it was only reversed by the Supreme Court by a one-vote 5-4 margin?

So, do you agree, Judge, that it was a close case and that reasonable minds could have seen it in one way or another and not be seen as prejudiced or unable or -- unable to make a clear decision?

SOTOMAYOR: To the extent that reasonable minds can differ on any case, that's true, as to what the legal conclusion should be in a case. But the panel, at least as the case was presented to itself, was relying on the reasonable views that Second Circuit precedent had established.

And so, to the extent that one as a judge adheres to precedence, because it is that which guides and gives stability to the law, then those reasonable minds who decided the precedent and the judges who apply it are coming to the legal conclusion they think the facts and law require.

KOHL: All right. Judge, we've heard several of our colleagues now, particularly on the other side, criticize you because they believe some things that you have said in speeches show that you'll not be able to put your personal views aside.

But I believe rather than pulling lines out of speeches, oftentimes out of context, the better way is to examine your record as a judge. In fact, when I asked now-Justice Alito what sort of a justice he was going to make, he said, quote, "If you want to know what sort of justice I would make, look at what sort of judge I've been."

KOHL: So you've served now as a federal judge for the past 17 years, the last 11 as an appellate court judge. If we examine the record, I believe it's plain that you are a careful jurist, respectful of precedent, and author of dozens of moderate and carefully reasoned decisions. The best evidence, I believe, is the infrequency with which you have been reversed.

You have authored over 230 majority opinions in your 11 years on the Second Circuit Court of Appeals. But in only three out of those 230-plus cases have your decisions been reversed by the Supreme Court -- a very, very low reversal rate of 2 percent.

Doesn't this very low reversal rate indicate that you do have, in fact, an ability to be faithful to the law and put your personal opinions and background aside when deciding cases as you have in your experience as a federal judge?

SOTOMAYOR: I believe what my record shows is that I follow the law and that my small reversal rate vis-a-vis the vast body of cases that I have examined, as you mentioned, (inaudible) the opinions I've authored but I've been a participant in thousands more that have not been either reviewed by the Supreme Court or reversed.

KOHL: Well, I agree with what you're saying. And I would like to suggest that this constant criticism of you in terms of your inability to be an impartial judge is totally refuted by the record that you've compiled as a federal judge up to this point.

We heard as much recently about Chief Justice Roberts' view that judges are like umpires simply calling balls and strikes. So finally, would you like to take the opportunity to give us your view about this sort of an analogy?

SOTOMAYOR: Few judges could claim they love baseball more than I do.


For obvious reasons. But analogies are always imperfect. And I prefer to describe what judges do, like umpires, is to be impartial and bring an open mind to every case before them. And by an open mind, I mean a judge who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law as the law commands. It's a refrain I keep repeating because that is my philosophy of judging -- applying the law to the facts at hand.

And that's my description of judging.

KOHL: Thank you.

Judge, which current one or two Supreme Court justices do you most identify with and which ones might we expect you to be agreeing with most of the time in the event that you are confirmed?

SOTOMAYOR: Senator, to suggest that I admire one of the sitting Supreme Court justices would suggest that I think of myself as a clone of one of the justices. I don't.

Each one of them bring integrity, their sense of respect for the law, and their sense of their best efforts and hard work to come to the decisions they think the law requires.

Going further than that would put me in the position of suggesting that by picking one justice, I was disagreeing or criticizing another. And I don't wish to do that. I wish to describe just myself.

I'm a judge who believes that the facts drive the law and the conclusion that the law will apply to that case. And when I say "drives the law," I mean determines how the law will apply in that individual case.

If you would ask me instead, if you permit me, to tell you a justice from the past that I admire for applying that approach to the law, it would be Justice Cardozo.

Now, Justice Cardozo didn't spend a whole lot of time on the Supreme Court. He had an untimely passing. But he had been a judge on the New York Court of Appeals for a very long time.

And during his short tenure on the bench, one of the factors that he was so well known for was his great respect for precedent and his great respect for -- respect and deference to the legislative branch and to the other branches of government and their powers under the Constitution.

In those regards, I do admire those parts of Justice Cardozo, which he was most famous for, and think that that is how I approach the -- the law as a case-by-case application of law to facts.

KOHL: Thank you. Appreciate that.

Judge Sotomayor, many of us are impressed with you and your nomination, and we hold you in great regard, but I believe we have a right to know what we're getting before we give you a lifetime appointment to the highest court in the land.

In past confirmation hearings, we've seen nominees who tell us one thing during our private meetings and in the confirmation hearings and then go to the court and become a justice that is quite different from the way they've portrayed themselves at the hearing.

So I'd like to ask you questions about a few issues that have generated much discussion. First, affirmative action.

Judge, first, I'd like to discuss the issue of affirmative action. We can all agree that it is good for our society when employers, schools, and government institutions encourage diversity. On the other hand, the consideration of ethnicity or gender should not trump qualifications or turn into a rigid quota system.

Without asking you how you would rule in any particular case, what do you think of affirmative action? Do you believe that affirmative action is a necessary part of our society today?

Do you agree with Justice O'Connor that she expects in 25 years the use of racial preferences will no longer be necessary to promote diversity? Do you believe affirmative action is more justified in education than in employment? Or do you think it makes no difference?

SOTOMAYOR: The question of whether affirmative action is necessary in our society or not and what form it should take is always, first, a legislative determination, in terms of legislative or government employer determination, in terms of what issue it is addressing and what remedy it is looking to structure.

The Constitution promotes and requires the equal protection of law of all citizens in its 14th Amendment. To ensure that protection, there are situations in which race in some form must be considered; the courts have recognized that. Equality requires effort, and so there are some situations in which some form of race has been recognized by the court.

SOTOMAYOR: It is firmly my hope, as it was expressed by Justice O'Connor in her decision involving the University of Michigan Law School admissions criteria, that in 25 years, race in our society won't be needed to be considered in any situation. That's the hope. And we've taken such great strides in our society to achieve that hope, but there are situations in which there are compelling state interests and the admissions case that Justice O'Connor was looking at, the court recognized that in the education field.

And the state is applying a solution that is very narrowly tailored. And there, the court determined that the law school's use of race is only one factor among many others with no presumption of admission whatsoever was appropriate under the circumstances.

In another case, companion case, the court determined that a more fixed use of race that didn't consider the individual was inappropriate, and it struck down the undergraduate admissions policy. That is what the court has said about the educational use of race in a narrow way.

The question, as I indicated, of whether that should apply in other contexts has not been looked at by the Supreme Court directly. The holdings of that case have not been applied or discussed in another case. That would have to await another state action that would come before the court where the state would articulate its reasons for doing what it did and the court would consider if those actions were constitutional or not.

KOHL: Judge, Bush v. Gore. Many critics saw the Bush v. Gore decision as an example of the judiciary improperly injecting itself into a political dispute. In your opinion, should the Supreme Court even have decided to get involved in Bush v. Gore?

SOTOMAYOR: That case took the attention of the nation, and there's been so much discussion about what the Court did or didn't do. I look at the case, and my reaction as a sitting judge is not to criticize it or to challenge it even if I were disposed that way because I don't take a position on that.

The Court took and made the decision it did. The question for me, as I look at that sui generis situation, it's only happened once in the lifetime of our country, is that some good came from that discussion. There's been and was enormous electoral process changes in many states as a result of the flaws that were reflected in the process that went on. That is a tribute to the greatness of our American system which is whether you agree or disagree with a Supreme Court decision, that all of the branches become involved in the conversation of how to improve things. And as an indicated, both Congress, who devoted a very significant amount of money to electoral reform in certain of its legislation -- and states have looked to address what happened there.

KOHL: Judge, in a 5-4 decision in 2005, the Supreme Court ruled that Kelo v. City of New London was a -- that it was constitutional for local government to seize private property for private economic development.

Many people, including myself, were alarmed about the consequences of this landmark ruling because, in the words of dissenting Justice O'Connor, under the logic of the Kelo case, quote, "Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory," unquote.

This decision was a major shift in the law. It said that private development was a permissible, quote, "public use," according to the Fifth Amendment, as long as it provided economic growth for the community.

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?


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.


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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