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Sen. Orrin Hatch Holds a Hearing on the Nomination of Judge Sonia Sotomayor to Be an Associate Justice of the U.S. Supreme Court

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Tuesday, July 14, 2009; 11:29 AM

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LEAHY: There's been some question during the break from -- from the press what our schedule will be. And I fully -- I fully understand that they have to work out their own schedules.

But I -- what I would suggest would just -- Senator Kohl ask questions. We'll go to -- next is Senator Hatch, a former chairman of this committee. Following Senator Hatch, we'll go to Senator Feinstein. They'll bring us to roughly 12:30.

Because of the caucuses, we'll break at 12:30, but then resume right at 2 o'clock, which will mean -- I've -- I've talked to Republicans and Democrats. It means everybody will have to leave their -- want to come back and leave their caucus a few minutes early, but I think -- I think everybody will understand that.

So Senator Hatch is a former chairman of this committee and a friend of many years. And I recognize Senator Hatch.

HATCH: Well, thank you, Mr. Chairman.

Welcome again and to your lovely family. We're -- we're grateful to have you all here.

Now, let me ask you a question about settled law. If a holding in the Supreme Court means it is settled, do you believe that -- that Gonzales v. Carhart, upholding the partial-birth abortion ban, is settled law?

SOTOMAYOR: All precedents of the Supreme Court I consider settled law, subject to the deference to doctrine of stare decisis would counsel.

HATCH: I want to begin here today by looking at your cases in an area that is very important to -- to many of us, and that's the Second Amendment, the right to keep and bear arms, and your conclusion that the -- that the right is not fundamental.

Now, in the 2004 case entitled United States v. Sanchez Villar, you handled the Second Amendment issue in a short footnote. You cited the second circuit's decision in United States v. Toner for the proposition that the right to possess a gun is not a fundamental right.

Toner, in turn, relied on the Supreme Court's decision in United States v. Miller. Last year, in the District of Columbia v. Heller, the Supreme Court examined Miller and concluded that, quote, "The case did not even purport to be a thorough examination of the Second Amendment," unquote, and that Miller provided, quote, "no explanation of the content of the right," unquote.

You're familiar with that.

SOTOMAYOR: I am, sir.

HATCH: OK. So let me ask you, doesn't the Supreme Court's treatment of Miller at least cast doubts on whether relying on Miller, as the second circuit has done, for this proposition is proper?

SOTOMAYOR: The issue...

HATCH: Remember, I'm saying at least cast doubts.

SOTOMAYOR: Well, that is what I believe Justice Scalia implied in his footnote 23, but he acknowledged that the issue of whether the right, as understood in Supreme Court jurisprudence, was fundamental.

It's not that I considered it unfundamental, but that the Supreme Court didn't consider it fundamental so as to be incorporated against the state.

HATCH: Well, it didn't decide that point.

SOTOMAYOR: Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the court's precedent had held it was not.

His opinion with respect to the application of the Second Amendment to government regulation was a different inquiry and a different inquiry as to the meaning of U.S. v. Miller with respect to that issue.

HATCH: Well, if Heller had already been decided, would you have addressed that issue differently than Heller or would you take the position that it -- that the doctrine of incorporation is inevitable with regard to state -- state issues?

SOTOMAYOR: That's the very question that the Supreme Court is more than likely to be...

HATCH: To decide.

SOTOMAYOR: ... considering. There are three cases addressing this issue, at least, I should say, three cases...

HATCH: Right.

SOTOMAYOR: ... addressing this issue in the circuit courts. And so it's not a question that I can address. As I said, I bring an open mind to every case.

HATCH: I accept that. In Sanchez Villar, you identified the premise that a right to possess a gun is not fundamental and the conclusion that New York's ban on gun possession was permissible under the Second Amendment, but there's not a word actually connecting the premise to the conclusion.

Without any analysis at all, that footnote that you wrote leaves the impression that unless the right to bear arms is considered fundamental, any gun restriction is necessarily permissible under the Second Amendment.

Is that what you believe?

SOTOMAYOR: No, sir, because that's not -- I'm not taking an opinion on that issue, because it's an open question.

Sanchez was...

HATCH: So you admit it's an open question.

SOTOMAYOR: Well, I admit that Justice -- admit. I -- the courts have been addressing that question. The Supreme Court, in the opinion authored by Justice Scalia, suggested that it was a question that the court should consider.

I'm just attempting to explain that U.S. v. Sanchez was using fundamental in its legal sense, that -- whether or not it had been incorporated against the states.

With respect to that question, moreover, even if it's not incorporated against the states, the question would be would the states have a rational basis for the regulation it has in place. And I believe that the question there was whether or not a prohibition against felons possessing firearms was at question, if my memory serves me correctly, if it doesn't. But even Justice Scalia, in the majority opinion in Heller, recognized that that was a rational basis regulation for a state under all circumstances, whether or not there was a Second Amendment right.

HATCH: Well, in the District of Columbia v. Heller, the Supreme Court observed that, quote, "It has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right," unquote. And the court also observed this, quote, "By the time of the founding, the right to have arms had become fundamental for English subjects," unquote.

Now, the court also described the right to bear arms as a natural right. Do you recall that from that decision?

SOTOMAYOR: I do remember that discussion.

HATCH: OK. All right.

In what way does the court's observation that the Second Amendment codified a pre-existing fundamental right to bear arms affect your conclusion that the Second Amendment does not protect a fundamental right?

SOTOMAYOR: My conclusion in the Maloney case or in the U.S. Sanchez-Villar was based on precedence and the holding of precedence that the Second Circuit did not apply to the states.

HATCH: Well, what's ... excuse me, I'm sorry. I didn't mean to interrupt you.

What's your understanding of the test or standard the Supreme Court has used to determine whether a right should be considered fundamental? I'm not asking a hypothetical here. I'm only asking about what the Supreme Court has said in the past on this question. I recall (inaudible) emphasizing that a right must be deeply rooted in our nation's history and tradition, that it is necessary to an Anglo- American regime of ordered liberty, or that it is an enduring American tradition.

I think I've cited that pretty accurately on what the court has held with regard to what is a fundamental right. Now, those are different formulations from the Supreme Court's decisions, but I think the common thread there is obvious. Now, is that your understanding of how the Supreme Court has evaluated whether a right should be deemed fundamental?

SOTOMAYOR: The Supreme Court's decision with respect to the Second Circuit incorporation -- Second Amendment incorporation doctrine is reliant on old precedent of the court, and I don't mean to use that as precedent that doesn't bind when I call it old. I'm talking about precedent that was passed in the 19th century.

Since that time, there is no question that different cases addressing different amendments of the Constitution have applied a different framework. And whether that framework and the language you quoted are precise or not, I haven't examined that framework in a while to know if that language is precise or not. I'm not suggesting it's not, Senator. I just can't affirm that description.

SOTOMAYOR; My point is, however, that once there's Supreme Court precedent directly on point, and Second Circuit precedent directly on point on a question, which there is on this incorporation doctrine and how it uses the word "fundamental," then my panel, which was unanimous on this point -- there were two other judges -- and at least one other -- or one other panel on the Seventh Circuit by Justice -- by Justice -- by Judge Easterbrook has agreed that, once you have settled precedent in an area, then, on a precise question, then the Supreme Court has to look at that.

And under the deference one gives to stare decisis and the factors one considers in deciding whether that older precedent should be changed or not, that's what the Supreme Court will do.

HATCH: OK. As I noted, the Supreme Court puts the Second Amendment in the same category as the First and the Fourth Amendments as pre-existing rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?

SOTOMAYOR: Those rights have been incorporated against the states. The states must comply with them. So in -- to the extent that the court has held that...

HATCH: Right.

SOTOMAYOR: ... then they are -- they have been deemed fundamental, as that term is understood legally.

HATCH: What about the Fourth Amendment, about unreasonable -- unreasonable searches and seizures?

SOTOMAYOR: As well.

HATCH: Same...

SOTOMAYOR: But with respect to the holding as it relates to that particular amendment.

HATCH: I understand.

Let me turn to your decision in Maloney v. Cuomo. This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court. I think I should be more specific. In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller. And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?

SOTOMAYOR: That, plus some Second Circuit precedent that had held...

HATCH: OK.

SOTOMAYOR: ... that it had not been -- that the amendment had not...

HATCH: But Presser was definitely one of the...

SOTOMAYOR: It was, but...

HATCH: ... cases you relied on? OK. In that case -- or, I should say, that case involved the 14th Amendment's privileges and immunities clause. Is that correct? You're aware of that?

SOTOMAYOR: It may have. I haven't read it recently enough to remember exactly.

HATCH: You can take my word on it.

SOTOMAYOR: OK. I'll accept...

HATCH: Thank you. Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of 14th Amendment inquiry required by our later cases," unquote.

Now, here's my question: Am I right that those later cases to which the court referred involved the 14th Amendment's due process clause rather than its privileges and immunities clause?

SOTOMAYOR: As I said, I haven't examined those cases recently enough to be able to answer your question, Senator. But what I can say is that, regardless of what those cases addressed or didn't address, the Second Circuit had very directly addressed the question of whether the Second -- whether it viewed the Second Amendment as applying against the states.

To that extent, if that precedent got the Supreme Court's teachings wrong, it still would bind my court...

HATCH: I understand that.

SOTOMAYOR: ... to the extent that justice...

HATCH: I'm talking about something beyond that. I'm talking about what should be done here. Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the privileges and immunities clause, not the 14th Amendment due process clause, to incorporate?

See, the later cases have all used 14th Amendment, as far as I can recall.

SOTOMAYOR: As I said, Senator, I just haven't looked at those cases to analyze it. I know what Heller said about them. In Maloney, we were addressing a very, very narrow question.

HATCH: Right.

SOTOMAYOR: And in the end, the issue of whether that precedent should be followed or not, it's a question the Supreme Court's going to address if it accepts certiorari in one of the three cases in which courts have looked at this question, the court of appeals has.

HATCH: Well, the reason -- the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the privileges and immunities clause and not cases that used the 14th Amendment due process clause.

Let me just clarify your decision in Maloney. As I read it, you held that the Second Amendment does not apply to state or local governments. You also held that, since the right to bear arms is not fundamental, all that is required to justify a weapons restriction is some reasonably conceivable state effects that could provide a rational basis for it.

Now, am I right that this is a very permissive standard that could be easily met, the rational basis standard?

SOTOMAYOR: Well, all standards of the court are attempting to ensure that government action has a basis.

HATCH: Right.

SOTOMAYOR: In some cases, the court looks at the action and applies a stricter scrutiny to the government's action. In others, if it's not a fundamental right in the way the law defines that, but it hasn't been incorporated against the states, then the standard of review is of rational basis.

HATCH: And my point is, it's a permissive standard that can be easily met. Is that correct?

SOTOMAYOR: Well, the government can remedy a social problem that it is identifying or a difficulty it's identifying in conduct not in the most narrowly tailored way, but one that reasonably seeks to achieve that result. In the end, it can't be arbitrary and capricious.

HATCH: Well...

SOTOMAYOR: That's a word that is not in the definition...

(CROSSTALK)

HATCH: Maybe I could use the words "more easily met." How's that? OK?

SOTOMAYOR: As I said, it -- the rational basis does look more broadly than strict scrutiny may.

HATCH: Right, that's my point. That's my point. As a result of this very permissive legal standard -- and it is permissive -- doesn't your decision in Maloney mean that virtually any state or local weapons ban would be permissible?

SOTOMAYOR: Sir, in Maloney, we were talking about nunchuk sticks.

HATCH: I understand.

SOTOMAYOR: Those are martial arts sticks.

HATCH: Two sticks bound together by rawhide or some sort of a...

SOTOMAYOR: Exactly. And -- and when the sticks are swung, which is what you do with them, if there's anybody near you, you're going to be seriously injured, because that swinging mechanism can break arms, it can bust someone's skull...

HATCH: Sure.

SOTOMAYOR: ... it can cause not only serious, but fatal damage.

So to the extent that a state government would choose to address this issue of the danger of that instrument by prohibiting its possession in the way New York did, the question before our court -- because the Second Amendment has not been incorporated against the state -- was, did the state have a rational basis for prohibiting the possession of this kind of instrument?

Every kind of regulation would come to a court with a particular statute, which judicial -- judicial -- legislative findings as to why a remedy is needed, and that statute would then be subject to rational basis review.

HATCH: Well, the point that I'm really making is that the decision was based upon a 19th century case that relied on the privileges and immunities clause, which is not the clause that we use to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.

Let me just change the subject. In the Ricci case -- and I'm very concerned about that, because -- because of a variety of reasons. The court split 5-4 on whether to grant summary judgment to the firefighters. And it was a summary judgment, meaning it didn't have to be distributed to the other judges on the court.

The only reason that Judge Cabranes raised the issue is that he read it in the newspaper and then said, "I want to see that case." Then he got it and he realized, "My gosh, this is a case of first impression."

So the court split 5-4 -- it was 5-4 -- on whether to grant summary judgment to the firefighters. Now, even the four dissenters said that the firefighters deserved their day in court to find more facts.

But all nine justices disagreed with your handling of that particular case. Now, thus, your decision in Ricci -- I mean, even though there was a 5-4 decision, all nine of them disagreed with your handling.

Now, OK, but as you noted, your decision in Ricci v. Destefano has become very controversial. People all over the country are tired of courts imposing their will against one group or another without justification.

Now, the primary response or defense so far seems to be that you had no choice, because you were bound by clear and longstanding precedent. Most say you were bound by second circuit precedent. Some say it was Supreme Court precedent.

So I need to ask you about this. To be clear, this case involved not only disparate impact, discrimination, but both disparate treatment and disparate impact. That's what made it a case of first impression.

The city says that they had to engage in disparate treatment or they would have been sued for disparate impact. So it was how these two concepts of discrimination, disparate treatment and disparate impact, relate in the same case.

But back to the issue of whether you were bound by clear, longstanding precedent, as I recall your opinion in this case, whether it was the summary order or the pro curium opinion, did not cite any Supreme Court or second circuit court precedent at all. Is that right?

SOTOMAYOR: I believe they cited the Bushey case.

HATCH: OK. The only case citation in your opinion was to the district court opinion, because you were simply adopting what the district court had said rather than doing your own analysis of the issues, and I think that is right. But you can correct me if I'm wrong, I'd be happy to be corrected.

HATCH: But didn't the district court say that this was actually a very unusual case? This is how the distinct court put it. Quote, "This case presents the opposite scenario of the usual challenge to an employment or promotional examination as plaintiffs attack not the use of allegedly racially discriminatory exam results, but defendants' reason for their refusal to use those results," unquote.

Now, this seems complicated, I know, but you know more about it than probably anybody here in this room. The district court cited three Second Circuit precedents, but didn't -- didn't two of them -- the Kirkland (ph) and the Bushey cases -- didn't they deal with race- norming of test scores, which did not occur in this case?

SOTOMAYOR: They dealt with when employees could prove a disparate impact of a case and when there would be...

HATCH: But based upon race-norming.

SOTOMAYOR: But the principles underlying when employees could bring a case are the same, when they establish a prima facie case, which is, can an employee be sued -- employer be sued by employees who can prove a disparate impact? And the basic principles of those cases were the same, regardless of what form the practice at issue took.

HATCH: OK. Well, the third case, the Hayden case, didn't it present a challenge to the design of the employment test rather than the results of the test?

SOTOMAYOR: I'm sorry. Say this again? I...

HATCH: The Hayden case, didn't -- didn't it actually present a challenge to the design of the case, rather than the results of the -- the design of the employment test rather than the results of the test?

SOTOMAYOR: Again, regardless of what the challenge is about, what test is at issue, the core holding of that precedent was that, if an employee could show a disparate impact from a particular practice or test or activity by a employer, then that employee had a prima facie case of liability under Title VII.

So the question is, was the city subject to potential liability because the employees -- the city of New Haven -- because the employees could bring a suit under established law challenging that the city of New Haven had violated Title VII?

HATCH: Which was one... SOTOMAYOR: So that -- that was the question.

HATCH: OK. It was one of the reasons why it's a very important case. When the circuit -- Second Circuit considered whether to review the decision en block, didn't you join an opinion admitting that the case presents, quote, "difficult issues," unquote?

SOTOMAYOR: Well, the district court noted that it was a different scenario, but it evaluated its decision -- it evaluated the case in a 78-page decision and gave a full explanation, one which the panel agreed with by adopting the opinion of the district court.

Those questions, as I indicated, are always whether -- given the risk the city was facing, the fact that it could face a law school -- lawsuit and its conclusion that perhaps a better test could be devised, that would not have a disparate impact, whether it was liable for discrimination -- disparate -- not disparate -- different treatment under the law, the Supreme Court came back and said "New standard."

SOTOMAYOR: As I understood the dissenters in that case, what they were saying is, to the majority, if you're going to apply a new standard, then give the Second Circuit a chance to look at the record and apply that standard. It wasn't disagreeing that the circuit wasn't applying the law as it was understood at the time. If the circuit -- the dissenters, as I read what they were doing, was saying send it back to the circuit and let them look at this in the first instance.

HATCH: Well, as I understand it, Judge Cabranes basically didn't know the decision was done until he read it in the newspaper and then asked to look at it. And his opinion, joined by five other judges, supporting en banc review opens with these words. Quote, "This appeal raises important questions of first impression in our circuit and, indeed, in the nation regarding the application of the 14th Amendment and Title VII's prohibition on discriminatory employment practices," unquote. Was he wrong?

SOTOMAYOR: That was his view. He expressed it in his -- in his opinion on his vote. I can't speak for him. I know that the -- I know that the panel...

HATCH: No, I'm just asking you to speak for you. Look, when the Supreme Court reversed you, Justice Kennedy wrote, quote, "This action presents two provisions of Title VII to be interpreted and reconciled with few, if any, precedence in the courts of appeals discussing the issue," unquote. He was referring to the lack of precedent anywhere in the country, not just the 2nd Circuit. Was he wrong?

SOTOMAYOR: He was talking about whether -- I understood him to be talking about, not whether the precedent that existed would have determined the outcome as the panel did, but whether the courts should be looking at these two provisions in a different way to establish a choice, a different choice in considerations by the city.

As I indicated, that argument about what new standard or new approach to the questions that the city should consider before it denies certification of a test, yes, had not been addressed by other courts. But the ability of a city when presented with a prima facie case to determine whether or not it would attempt to reach a non- disparate impact had been recognized by the courts.

HATCH: OK. If even the district court acknowledged that this was an unusual case and if there was little or no 2nd Circuit precedent directly on point for a case like this, you know, one of the questions that I had is why did your panel not just do your own analysis and your own opinion. Judge Cabranes pointed out that the pro curiam approach that simply adopts the district court's reasoning is reserved for cases that involve only, quote, "straightforward questions that do not require explanation," unquote.

As I asked you about a minute ago, you yourself joined an opinion regarding rehearings saying the case raised difficult questions. Now, the issue that I'm raising is why did you not analyze the issues yourself and apply what law existed to the difficult and perhaps unprecedented cases or issues in the case.

HATCH: And whether you got it right or wrong -- and the Supreme Court did find that you got it wrong because they reversed it -- I just can't understand the claim that you were just sticking to branding (ph) clear, longstanding precedent when all of that was part of the total decision. And all nine justices found it to be a flaw that you didn't -- you know, that you didn't give serious, adequate consideration to what really turned out to be a cases of first -- a case of first impression.

Look, it seems to be always to look at these things in retrospect, and you're under a lot of pressure here. But I just wanted to cover that case because I think it's important that that case be covered. I think it's also important for you to know how I feel about these type of cases and I think many here in the United States Senate. These are important cases.

These are cases where people are discriminated against. And let me just make one last point here. You have nothing to do with this, I know. But there's a rumor that People for the American Way has -- that this organization has been smearing Frank Ricci, who is only one of 20 plaintiffs in this case, because he may be willing to be a witness in this -- in these proceedings.

I hope that's not true. And I know you have nothing to do with it, so don't -- don't think I'm trying to make a point against you. I'm not. I'm making a point that that's the type of stuff that doesn't belong in Supreme Court nomination hearings. And I know you would agree with me on that.

SOTOMAYOR: Absolutely, Senator. I would never, ever endorse, approve, or tolerate, if I had no one control over individuals, that kind of conduct.

HATCH: I believe that.

SOTOMAYOR: Reprehensible.

HATCH: I believe that, and I want you to know I've appreciated this little time we've had together.

SOTOMAYOR: Thank you, Senator.

LEAHY: Senator Hatch, thank you.

I would also put in record because race-related cases come up, an independent study Supreme Court expert, Tom Goldstein, found of the 97 race-related cases which Judge Sotomayor participated in the Second Circuit, she and the rest of her panel rejected discrimination claims (inaudible) 80 times, agreed them 10 times, rejecting discrimination claims by a margin of 8 to 1.

Mr. Goldstein found that in 10 cases favoring discrimination, nine of those were unanimous. And of those, nine in seven, the unanimous panel included at least one Republican-appointed judge. And he said is seems absurd to say Judge Sotomayor allows race to affect her decision making. And without objection, that report will be part of the record.

I yield now to Senator Feinstein, the chair of the U.S. Senate...

SESSIONS: Mr. Chairman, I would just like to cite for the record a Washington Post study that show that Judge Sotomayor's votes came out liberal 59 percent of the time compared with 52 percent for other judges who, like her, were appointed by Democratic presidents and that the Democratic appointees were 13 percent more liberal than Republican appointees.

So I don't know. It's not a huge difference, but the suggestion that -- I would just make that for the record and (inaudible) whatever else you offered. And I would offer, Mr. Chairman, a correction of the record regarding the Miguel Estrada case, I have a statement from him. He was nominated by President Bush and would offer that into the record as an explanation of how his nomination was blocked by consistent filibuster by the Democrats when there was a majority to confirm him.

LEAHY: Thank you, and that will be in the record.

I would also not want anything -- make any suggestion that Mr. Estrada is anything but an exceptionally good lawyer. The argument there was not so much with him, but withholding by -- of some material by the Bush administration, something he had no control over.

Senator Feinstein?


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