Transcript of Sen. Feinstein Questioning at Judge Sotomayor Confirmation Hearing

CQ Transcriptions
Tuesday, July 14, 2009 12:34 PM

Review all exchanges organized by Senator

FEINSTEIN: Thank you very much, Mr. Chairman.

I'm puzzled why Mr. Estrada keeps coming up. Mr. Estrada had no judicial experience. The nominee before us has considerable judicial experience. And Mr. Estrada wouldn't answer questions presented to him.

This nominee, I think, has been very straightforward. She has not used catchy phrases. She has answered the questions directly the best she could. And to me, that gets points.

I must say that, if there's a test for judicial temperament, you pass it with an A-plus-plus. I want you to know that, because I wanted to respond, and my adrenaline was moving along. And you have just sat there, very quietly, and responded to questions that, in their very nature, are quite provocative. So I want to congratulate you about that.

Now, it was just said that all nine justices disagreed with you in the Ricci case, but I want to point out that Justice Ginsburg and three other justices stated in the dissent that the Second Circuit decision should have been affirmed. Is that correct?


FEINSTEIN: Thank you very much.

Also, a senator made a comment about the Second Circuit not being bound in the Ricci case that I wanted to follow up on, because I think what he said was not correct. You made the point that the unanimous Ricci panel was bound by Second Circuit precedent, as we've said. The senator said that you easily could have overruled that precedent by voting for the case to be heard en banc.

First, my understanding is that a majority of the Second Circuit voted not to re-hear the case. Is that correct?

SOTOMAYOR: That's correct.

FEINSTEIN: Secondly, it took a significant change in disparate law -- in disparate impact law to change the result of the Second Circuit reached in this case. And the Supreme Court itself in Ricci recognized that it was creating a new standard. Is my understanding correct?

SOTOMAYOR: Yes, Senator.


So what's happening here, ladies and gentlemen and members, is that this very reserved and very factual and very considered nominee is being characterized as being an activist when she is anything but. And I have a problem with this, because some of it is getting across out there. Calls began to come into my office, "Wow, she's an activist."

In my view, because you have agreed with your Republican colleagues on constitutional issues some 98 percent of the time, I don't see how you can possibly be construed to be an activist. And by your comments here, and you've -- and as I walked in the room earlier, somebody asked you how you see your role, and you said, "To apply the law as it exists with the cases behind it."

That's a direct quote. It's a very clear statement. It does not say, "Oh, I think it's a good idea," or it does not say any other cliche. It states a definitive statement.

And later, you said, "Precedent is that which gives stability to the law," and I think that's a very important statement.

FEINSTEIN: And what we're talking about here is following precedent, so let me ask you in a difficult area of the law a question.

The Supreme Court has decided on more than seven occasions that the law cannot put a woman's health at risk. It said it in Roe in '73; in Danforth in '76; in Planned Parenthood in '83; in Thornburgh in '86; in Casey in '92; in Carhart in 2000; and in Ayotte in 2006.

With both Justices Roberts and Alito on the court, however, this rule seems to have changed, because, in 2007, in Carhart II, the court essentially removed this basic constitutional right from women.

Now, here's my question: When there are multiple precedents and a question arises, are all the previous decisions discarded, or should the court re-examine all the cases on point?

SOTOMAYOR: It's somewhat difficult to answer that question...


SOTOMAYOR: ... because, before the court in any one case is this particular factual situation. And so how the court's precedent apply to that unique factual situation -- because often what comes before the court is something that's different than its prior decision, not always, but often.

In the Carhart case, the court looked to its precedents. And as I understood that case, it was deciding a different question, which was whether there were other means, safer means, and equally effective means for a woman to exercise her right than the procedure at issue in that case.

That was, I don't believe, a rejection of its prior precedents. Its prior precedents are still the precedents of the court. The health and welfare of a woman must be -- must be compelling consideration.

FEINSTEIN: So you believe that the health of the woman still exists...

SOTOMAYOR: It is a part...


SOTOMAYOR: You mentioned many cases. It has been a part of the court's jurisprudence and a part of its precedents. Those precedents must be given deference in any situation that arises before the court.

FEINSTEIN: Thank you very much. I appreciate that.

I'd also like to ask you your thoughts on how a precedent should be overruled. In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedents without acknowledging that they were doing so.

Scalia wrote in the Hein case, and I quote, "Overruling prior precedent is a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive," end quote.

FEINSTEIN: In Wisconsin Right to Life v. FEC, he said that Chief Justice Roberts' opinion, quote, "effectively overruled a 2003 decision without saying so," end quote, and said this kind of, quote, "faux judicial restraint," end quote, was really, quote, "judicial obfuscation," end quote.

Here's the question. When the court decides to overrule a previous decision, is it important that it do so outright and in a way that is clear to everyone?

SOTOMAYOR: The doctrine of stare decisis, which means stand by a decision, stand by a prior decision, has a basic premise and that basic premise is that there is a value in society to predictability, consistency, fairness, evenhandedness in the law.

And the society has an important expectation that judges won't change the law based on personal whim or not, but that they will be guided by a humility they should show in the thinking of prior judges who have considered weighty questions and determined, as best as they could, given the tools they had at the time, to establish precedent.

There are circumstances in which a court should reexamine precedent and perhaps change its direction or perhaps reject it, but that should be done very, very cautiously. And I keep emphasizing the "verys" because the presumption is in favor of deference to precedent.

The question then becomes what are the factors you use to change it and then courts have looked at a variety of different factors, applying each in a balance and determining where that balance falls at a particular moment.

It is important to recognize, however, that the development of the law is step-by-step, case-by-case, and there are some situations in which there is a principled way to distinguish precedent from application to a new situation.

No, I do not believe a judge should act in an unprincipled way, but I recognize that both the doctrine of stare decisis starts from a presumption that deference should be given to precedence and that the development of the law is case-by-case. It's always a very fine balance.

FEINSTEIN: Thank you very much. I appreciate that.

I wanted to ask a question on executive power and national security. We have seen the executive branch push the boundaries of power, claiming sweeping authority to disregard acts of Congress, and that's one way to collect communications of Americans without warrants and to detain people indefinitely without due process.

Now, the president in literally hundreds of signing statements affixed to a signature on a bill indicated part of a bill that he would, in essence, disregard. He didn't veto the bill. He signed the bill and said, "But there are sections that I," in so many words, "will disregard."

FEINSTEIN: Most egregiously, in 2005, when Congress passed a bipartisan bill banning torture, President Bush signed it, but he also issued a signing statement saying he would only enforce the law, quote, "consistent with the constitutional authority of the president to supervise the unitary executive branch and consistent with the constitutional limitations on the judicial power," end quote.

In other words, although he signed the bill, it was widely interpreted that he was asserting the right not to follow it.

Does the Constitution authorize the president to not follow parts of laws duly passed by the Congress that he is willing to sign that he believes are an unconstitutional infringement on executive authority?

SOTOMAYOR: It's a very broad question.

FEINSTEIN: It's one that we are grappling with.

SOTOMAYOR: And -- and that's why I have to be very cautious in answering it...

FEINSTEIN: That's fine.

SOTOMAYOR: ... because not only is Congress grappling with this issue, but so are courts, by claims being raised by many litigants who are -- who are asserting -- whether they're right or wrong would need to be addressed in each individual case -- that the president, in taking some activity against the individual, has exceed Congress's authorization or his powers.

The best I can do in answering your question, because there are so many pending cases addressing this issue in such a different variety of ways, is to say that the best expression of how to address this always in a particular situation was made by Justice Jackson in his concurrence in the Youngstown steel seizure cases, and that involved President Truman's seizure of steel factories.

There, Justice Jackson has sort of set off the framework in an articulation that no one's thought of a better way to make it. He says that you always have to look at an assertion by the president that he or she is acting within executive power in the context of what Congress has done or not done.

And he always starts with, first, you look at whether Congress has expressly or implicitly addressed or authorized the president's act in a certain way. And if the president has, then he's acting at his highest stature of power.

If the president is acting in prohibition of an express or implied act of Congress, then he's working at his lowest ebbs. If he's acting where Congress hasn't spoken, then we're in what Justice Jackson called the zone of twilight.

The issue in any particular case is always starting with what Congress says or has not said and then looking at what the Constitution has with -- says about the powers of the president minus Congress's powers in that area.

You can't speak more specifically than that, in response to your statement that were a part of your question, other than to say the president can't act in violation of the Constitution. No one's above the law. But what that is in a particular situation has to be looked at in the factual scenario before the court.

FEINSTEIN: Thank you very much.

This is really very relevant to what we do, and we have often discussed this Jackson case, or the steel case, but we just recently passed a Foreign Intelligence Surveillance Act. And one of the amendments -- because I did the amendment -- was to strengthen the exclusivity clause of the law, which has been in the bill since the beginning, but that there are no exceptions from which the president can leave the four corners of this bill. So it will remain to be seen how that works out, over time, but I can certainly say to you that it's a most important consideration as we looked at these matters of national security.

So let me ask you this: you joined a Second Circuit opinion last year that held that the executive should not forbid companies that receive national security letters to tell the public about those letters. The panel's opinion in the case said, quote, "The national security context in which NSLs" -- national security letters -- "are authorized imposes on courts a significant obligation to defer to the judgments of executive branch officials," end quote, but also that "Under no circumstance should the judiciary become the handmaiden of the executive," end quote. That's Doe v. Mukasey.

Given that the executive branch has responsibility for protecting the national security, how should courts balance the executive branch's expertise in national security matters with the judicial branch's constitutional duty to enforce the Constitution and prevent abuse of power?

SOTOMAYOR: I can talk about what we did in Doe as reflective of the approach that I took and joined in that case. It's difficult to talk about an absolute approach in any case because each case presents its own actions by parties and its own set of competing considerations often.

In Doe, the district court had invalidated a congressional statue altogether, reasoning that the statute violated the Constitution in a number of different ways and that those violations did not authorize Congress to act in the manner it did.

As the panel said in that decision, recognizing that deference to the executive is important in national security questions, and that deference to congress, because the court was -- district court was invalidating an act of Congress, that we had, as an appellate court, to be very cautious about what we were doing in this area and to balance and keep consistent with constitutional requirements the actions that were being taken.

SOTOMAYOR: Giving that due deference, we upheld to most of the statute, and what we did was address two provisions of the statute that didn't pass, in our judgment, constitutional muster. One of them was that the law, as Supreme Court precedent had commanded, required that if the government was going to stop an individual from speaking in this particular context, that the government had to come to court immediately to get court approval of that step.

The statute, instead, required the individual who was restricted to come and challenge the restriction. We said, "No, government's acting. You have a right to speak." If you have a right to speak, you should know what the grounds for that right are and you should be told or brought to court to be given an opportunity to have that restriction lifted.

The other was a question of who bore the burden of supporting that restriction, and the statute held that it was the individual who was being burdened who had to prove that there wasn't a reason for it.

The government agreed with our court that that burden violated Supreme Court precedent and the premises of freedom of speech and agreed that the burden should not be that way and we read the statute to explain what the proper burden was.

There is, in all of these cases, a balance and deference that's needed to be given to the executive and to Congress in certain situations, but we are a court that the protects the Constitution and the rights of individuals under it and we must ensure and act with caution whenever reviewing a claim before us.

FEINSTEIN: Thank you very much.

One question on the commerce clause in the Constitution. That clause, as you well know, is used to pass laws in a variety of contexts, from protecting schools from guns to highway safety to laws on violent crime, child pornography, laws to prevent discrimination and to protect the environment, to name just a few examples.

When I questioned now Chief Justice Roberts, I talked about how, for 60 years, the court did not strike down a single federal law for exceeding congressional power under the commerce clause.

In the last decade, however, the court has changed its interpretation of the commerce clause and struck down more than three dozen cases. My question to the chief justice and now to you is: do you agree with the direction the Supreme Court has moved in more narrowly, interpreting congressional authority to enact laws under the commerce clause?


FEINSTEIN: Generally, not relating to any one case.

SOTOMAYOR: No, I know. But the question assumes a prejudgment by me of what's an appropriate approach or not in a new case that may come before me as a second circuit judge or, again, if I'm fortunate enough to be a justice on the Supreme Court.

So it's not a case I can answer in a broad statement. I can say that the court, in reviewing congressional acts as it relates to an exercise of powers under the commerce clause, has looked at a wide variety of factors and considered that in different areas.

But there is a framework that those cases have addressed and that framework would have to be considered with respect to each case that comes before the court.

SOTOMAYOR: Now, I know that you mentioned the number of different cases and if you have one in particular that concerns you, perhaps I could talk about what the framework is that the court established in those cases.

FEINSTEIN: All right. I'll give you one very quickly: restricting the distance that somebody could bring a gun close to a school.

SOTOMAYOR: Well, the gun-free zones school act, which the court struck down in Lopez...

FEINSTEIN: Right, Lopez.

SOTOMAYOR: ... in that case and in some of its subsequent cases, the court was examining, as I mentioned, a wide variety of factors. They included whether the activity that the government was attempting to regulate was economic or non-economic, whether it was an area in which states traditionally regulated, whether the statute at issue had an interstate commerce provision to -- as an element of the crime, and then considered whether there was a substantial effect on commerce.

It looked at the congressional findings on that last element, the court did, and determined that there weren't enough in the confluence of factors that it was looking at to find that the Constitution -- that that particular statute was within Congress's powers.

That's the basic approach it has used to other statutes it has looked at. I would note that its most recent case in this area, the Raich case, the court did upheld a crime that was non-economic, in the sense of that it involved just the possession of marijuana. And there, it looked at the broader statute in which that provision was passed and the intent of Congress to regulate a market in illegal drugs.

So the broad principles established in those cases have been the court's precedent. Its most recent holding suggested another factor for courts to look at in each situation will provide a unique factual setting that the court will apply those principles to.

FEINSTEIN: One last question on that point. One of the main concerns is that this interpretation, which is much more restrictive now, could impact important environmental laws, whether it be the Endangered Species Act, the Clean Air Act, the Clean Water Act, or anything that we might even do in cap and trade. SOTOMAYOR: Oh, in fact, there are cases pending before the courts raising those arguments. And so those are issues that the courts are addressing. I can't speak much more...

FEINSTEIN: Right, I understand.

SOTOMAYOR: ... further than that because of the restrictions on me.

FEINSTEIN: It's just that Congress has to have the ability to legislate. And in those general areas, it's the commerce clause that enables that legislation.

Now, as you pointed out, we did revise the gun -- and make -- the Lopez case -- and make specific findings and perhaps, you know, with more care toward the actual findings that bring about the legislative conclusion, that we might be able to continue to legislate in these areas.

FEINSTEIN: But my hope is that you would go to the court with the sensitivity that this body has to be able to legislate in those areas. They involve all of the states. And they're very important questions involving people's well-being, control of the environment, the air, the water, et cetera.

SOTOMAYOR: I do believe that in all of the cases the court has addressed this issue that it pays particular attention to congressional findings. I know that individuals may disagree with what the court has done in individual cases. But it has never disavowed the importance of deference to legislative findings with respect to legislation that it's passing within its powers under the Constitution.

FEINSTEIN: Thank you. I wish you best of luck.

SOTOMAYOR: Thank you.

FEINSTEIN: Thank you very much.

SESSIONS: Mr. Chairman, I correct one thing. I said I had a letter earlier from Miguel Estrada. That was not correct. It wasn't a letter. Thank you.

LEAHY: Yes, if we could have a copy of whatever you put in the...


LEAHY: I did send Mr. Estrada a note last night because I had (inaudible) something I said about him I wanted to let him know that.

SESSIONS: Well, we both made an error talking about him.

LEAHY: OK. Well -- but then one thing we should remember that Mr. Estrada is not the nominee here. Just as with all the statements made about President Obama's philosophy, his confirmation hearing was last November, not now.

It's just you, Judge Sotomayor. And have a good lunch. And we will come back.

I'm trying to think who's next. Senator Grassley will be recognized when we come back in. And we will start right at 2:00.

Chuck? OK. This hearing is in recess.

View all comments that have been posted about this article.

© 2009 Washingtonpost.Newsweek Interactive