Sen. Russ Feingold Questioning at Judge Sotomayor Confirmation Hearing

CQ Transcriptions
Tuesday, July 14, 2009 2:58 PM

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SEN. RUSS FEINGOLD: Judge, let me first say I don't mind telling how much I'm enjoying listening to you, both your manner and your obvious, tremendous knowledge and understanding of the law. In fact, I'm enjoying it so much that I hope when you go into these deliberations about cameras in the courtroom, that you consider the possibility that I and other Americans would like the opportunity to observe your skills for many years to come in the comfort of our family rooms and living rooms.

JUDGE SOTOMAYOR: You were a very good lawyer, weren't you, Senator?

(LAUGHTER)

FEINGOLD: But I'm not going to ask you about that one now. Others have covered it.

Let me get into a topic that I discussed at length with -- with two most recent Supreme Court nominees, Chief Justice Roberts and Justice Alito, and that's the issue of executive power.

In 2003, you spoke at a law school class about some of the legal issues that have arisen since 9/11. You started your remarks with a moving description of how Americans stood together in the days after those horrific events and how people from small, Midwestern towns and people from New York City found their common threads as Americans, you said.

As you said in that speech, while it's hard to imagine that something positive could ever result from such a tragedy, that there was a sense in those early days of coming together as one community, that we would all help each other get through this.

And it was, of course, something that none of us had ever experienced before and something I've often discussed, as well. But what I have to also say is that, in the weeks and months that followed, I was gravely disappointed that the events of that awful day, the events that had brought us so close together as one nation, were sometimes used, Judge, to justify policies that departed so far from what America stands for.

So I'm going to ask you some questions that I asked now-Chief Justice Roberts at his hearing. Did that day, 9/11, change your view of the importance of individual rights and civil liberties and how they can be protected?

SOTOMAYOR: September 11th was a horrific tragedy for all of the victims of that tragedy and for the nation. I was in New York. My home is very close to the World Trade Center. I spent days not being able to drive a car into my neighborhood because my neighborhood was used as a staging area for emergency trucks.

The issue of the country's safety and the consequences of that great tragedy are the subject of continuing discussion among not just senators, but the whole nation.

In the end, the Constitution, by its terms, protects certain individual rights. That protection is often fact-specific. Many of its terms are very broad. So what's an unreasonable search and seizure? What are other questions or facts specific?

But in answer to your specific question, did it change my view of the Constitution? No, sir, the Constitution is a timeless document. It was intended to guide us through decades, generation after generation, to everything that would develop in our country.

It has protected us as a nation. It has inspired our survival. That doesn't change.

FEINGOLD: Well, I appreciate that answer, Judge. Are there any elements of the government's response to September 11th that you think maybe 50 or 60 years from now we as a nation will look back on with some regret?

SOTOMAYOR: I'm a historian by undergraduate training. I also love history books. It's amazing how difficult it is to make judgments about one's current positions. That's because history permits us to look back and to examine the actual consequences that have arisen, and then judgments are made.

As a judge today, all I can do, because I'm not part of the legislative branch -- it's the legislative branch who has the responsibility to make laws consistent with that branch's view of constitutional requirements and its powers.

It's up to the president to take his actions. And then, it's up to the court to just examine each situation as it arises.

FEINGOLD: I can understand some hesitance on this. But the truth is that courts are already dealing with these very issues.

The Supreme Court itself has now struck down a number of post- 9/11 policies. And you yourself sat on a panel that struck down one aspect of the National Security Letter statutes that were expanded by the Patriot Act.

So, I'd like to hear your thoughts a bit on whether you see any common themes or important lessons in the Court's decisions in Rasul, Hamdi, Hamdan and Boumediene. What is your general understanding of that line of cases?

SOTOMAYOR: That the Court is doing its task as judges. It's looking, in each of those cases, at what the actions are of either the military, and what Congress has done or not done, and applied constitutional review to those actions.

FEINGOLD: And is it fair to say, given that line of cases, that we can say that, at least as regards the Supreme Court, it believes mistakes were made with regard to the post-9/11 policies? Because in each of those cases, there was an overturning of a decision, either by the Congress or the executive.

SOTOMAYOR: I smiled only because that's not the way that judges look at that issue. We don't decide whether mistakes were made. We look at whether action was consistent with constitutional limitations, or statutory limitations.

FEINGOLD: And in each of those cases, there was a problem with either a constitutional violation or a problem with a congressional action. Right? SOTOMAYOR: Yes.

FEINGOLD: That's fine.

As I'm sure you're aware, many of us on the committee discussed at length with the prior Supreme Court nominees the framework for evaluating the scope of executive power in the national security context. You already discussed this at some length with Senator Feinstein, Justice Jackson's test in the Youngstown case.

And I and others on the committee are deeply concerned about the very broad assertion of executive power that's been made in recent years, an interpretation that has been used to authorize the violation of clear statutory prohibitions, from the Foreign Intelligence Surveillance Act and the anti-torture statute.

You discussed with Senator Feinstein the third category, the lowest ebb category, in the Youngstown framework. And that's where, as Justice Jackson said, the president's power is at its lowest ebb, because Congress has, as you well explained it, specifically prohibited some action.

I take the point of careful scholars who argue that, hypothetically speaking, Congress could conceivably pass a law that is plainly unconstitutional. For example, if Congress passed a law that said that somebody other than the president would be the commander in chief of a particular armed conflict, and not subject to presidential direction, presumably, that would be out of bounds.

But setting aside such abstract hypotheticals, as far as I'm aware -- and I'm pretty sure this is accurate -- the Supreme Court has never relied on the Youngstown framework to conclude that the president may violate a clear statutory prohibition. In fact, in Youngstown itself, the court rejected President Truman's plan to seize the steel mills.

Now, is that your understanding of the Supreme Court precedent in this area?

SOTOMAYOR: I haven't cases, or a sufficient number of cases, in this area to say that I can remember every Supreme Court decision on a question related to this topic.

As you know, in the Youngstown case, the court held that the president had not acted within his powers in seizing the steel mills in the particular situation existing before him at the time.

But the question or the framework doesn't change, which is, each situation would have to be looked at individually, because you can't determine ahead of time with hypotheticals what a potential constitutional conclusion will be.

As I may have said in -- to an earlier question, academic discussion is just that. It's presenting the extremes of every issue and attempting to debate about, on that extreme of the legal question, how should the judge rule?

FEINGOLD: I'll concede that point, Judge. I just -- I mean, given your tremendous knowledge of the law and your preparation, I'm pretty sure you would have run into any example of where this had happened.

And I just want to note that I am unaware of and if anybody is aware of an example of where something was justified under the president's power under the lowest ebb, I'd love to know about it, but I -- I think that's a -- that's not a question of a hypothetical. That's a factual question about what the history of the case law is.

SOTOMAYOR: I -- I can only accept your assumption. As I said, I -- I have not had sufficient cases to have looked at what I know in light of that particular question that you're posing.

FEINGOLD: In August 2002, the Office of Legal Counsel at the Department of Defense issued two memoranda considering the legal limits on interrogation of terrorism detainees. And one of these contained a detailed legal analysis of the criminal law prohibiting torture.

It concluded, among other things, that enforcement of the anti- torture statute would be an unconstitutional infringement on the president's commander-in-chief authority.

But, Judge, that memo did not once cite to the Youngstown case or to Justice Jackson's opinion in Youngstown. And we just learned on Friday in a new inspector general report that a November 2001 OLC memo providing the legal basis for the so-called terrorist surveillance program also did not cite Youngstown.

Now, I don't think you would have to be familiar with those memos to answer my question. Does it strike you as odd that a complex legal analysis of the anti-torture statute or the FISA act that considers whether the president could violate those statutes would not even mention the Youngstown case?

SOTOMAYOR: I have never been an adviser to a president. That's not a function I have served, so I don't want to comment on what was done or not done by those advisers in that case. And it's likely that some question -- and I know some are pending before the court in one existing case, so I can't comment.

All I can comment -- on whether that's surprising or not, I can only tell you that I would be surprised if a court didn't consider the Youngstown framework in a decision involving this question, because it is -- that case's framework is how these issues are generally approached.

FEINGOLD: Good. I appreciate that answer.

Let me go to a topic that Senator Leahy and Senator Hatch discussed with you at some length, the Second Amendment. And I have long believed that the Second Amendment grants citizens an individual right to own firearms.

And, frankly, I was elated when the court ruled in Heller last year basically what I think had been a mistake all along, to not recognize it as an individual right.

FEINGOLD: The question of whether the Second Amendment rights are incorporated in the 14th Amendment's guarantee of due process of law and, therefore, applicable to the states, as you pointed out, was not decided in Heller. And a Supreme Court decision in 1886 specifically held that the Second Amendment applies only to the federal government.

So, in my view, it is unremarkable that as a circuit court judge in the Maloney case you would follow applicable Supreme Court precedent that directly controlled the case rather than apply your own guess of where the court may be headed after Heller. In other words, I think that's -- would be an unfair criticism of a case that I think you needed to rule that way given the state of the law.

But let me move on that from because many of my constituents would like to know more about how you would make such a decision as a member of the highest courts. So I want to follow up on that.

First of all, am I right that if you're confirmed and the court grants cert in the Maloney case, you would have to recuse yourself from its consideration?

SOTOMAYOR: Yes, sir. My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate.

FEINGOLD: Fair enough. What about if one of the other pending appeals comes to the Court such as the Seventh Circuit decision in NRA v. Chicago which took the same position as your position in Maloney, would you have to recuse yourself from that one as well?

SOTOMAYOR: There are many cases in which a justice, I understand, has decided cases as a circuit court judge that are not the subject of review that raise issues that the Supreme Court looks at later. What I would do in this situation, I would look at the practices of the justices to determine whether or not that would counsel to recuse myself.

I would just note that many legal issues, once they come before the Court, present a different series of questions than one addresses at the circuit court.

FEINGOLD: Well, let's assume you were able to sit to one of these cases or a future case that deals with this issue of incorporating the right to bear arms as applied to the states. How would you assess whether the Second Amendment or any other amendment that has not yet been incorporated through the 14th Amendment should be made applicable to the states? What's the test that the Supreme Court should apply?

SOTOMAYOR: That's always the issue that litigants are arguing in litigation. So to the extent that the Supreme Court has not addressed this question yet and there's a strong likelihood it may in the future, I can't say to you that I've prejudged the case and decided this is exactly how I'm going to approach it...

FEINGOLD: But what would be the general test for incorporation?

SOTOMAYOR: Well...

FEINGOLD: I mean, what is the general principle?

SOTOMAYOR: One must remember that the Supreme Court's analysis in its prior precedent predated its principles or the development of cases discussing the incorporation doctrine. Those are newer cases.

And so the framework established in those cases may well inform -- as I said, I've hesitant of prejudging and saying they will or won't because that will be what the parties are going to be arguing in the litigation. But it is...

FEINGOLD: Well...

SOTOMAYOR: I'm sorry.

FEINGOLD: No, no. Go ahead.

SOTOMAYOR: No, I was just suggesting that I do recognize that the court's more recent jurisprudence in incorporation with respect to other amendments has taken -- has been more recent. And those cases as well as stare decisis and a lot of other things will inform the Court's decision how it looks at a new challenge to a state regulation.

FEINGOLD: And -- and, of course, it is true that, despite that trend that you just described, that the Supreme Court has not incorporated several constitutional amendments as against the states, but most of those are covered by constitutional provisions in state constitutions and the Supreme Court decisions that refuse to -- that refuse to incorporate the federal constitutional protections, like the case involving the Second Amendment, a 19th century case, date back nearly a century.

So after Heller, doesn't it seem almost inevitable that, when the Supreme Court does again consider whether the Second Amendment applies to the states, that it will find the individual right to bear arms to be fundamental, which is a word that we've been talking about today.

After all, Justice Scalia's opinion said this: By the time of the founding, the right to have arms -- bear arms had become fundamental for English subjects. Blackstone, whose works we have said constituted the pre-eminent authority on English law for the founding generation, cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. It was, he said, the natural right of resistance and self-preservation and the right of having and using arms for self-preservation and defense.

SOTOMAYOR: As I said earlier, you're a very eloquent advocate, but a decision on what the Supreme Court will do and what's inevitable will come up before the justices in great likelihood in the future. And so I feel that I'm threading the line of...

FEINGOLD: OK.

SOTOMAYOR: ... answering a question about what the court will do in a case that may likely come before it in the future.

FEINGOLD: Well, let me try it in a more -- less lofty way then. We talked of nunchucks before.

SOTOMAYOR: OK.

FEINGOLD: That's an easier kind of case. But what Heller was about was that there was a law here in D.C. that said you couldn't have a handgun if you wanted to have it in your house to protect yourself. It is now protected under the Constitution that the citizens of the District of Columbia can have a handgun.

Now, what happens if we don't incorporate and the people of the state of Wisconsin -- let's say we didn't have a constitutional provision in Wisconsin. We didn't have one until the 1980s, when I and other state senators proposed that we have a right to bear arms provision.

But isn't there a danger here that if you don't have this incorporated against the states that we'd have this result where the citizens of D.C. have a constitutional right to have a handgun, but the people of Wisconsin might not have that right? Doesn't -- doesn't that make it almost inevitable that you would have to apply this to the states?

SOTOMAYOR: It's a question the court will have to consider...

FEINGOLD: I appreciate your patience.

SOTOMAYOR: ... and its meaning of Heller. Senator, the Supreme Court did hold that there is in the Second Amendment an individual right to bear arms, and that is its holding, and that is the court's decision. I fully accept that.

And in whatever new cases come before me that don't involve incorporation as a circuit -- Second Circuit judge, I would have to consider those -- those issues in the context of a particular state regulation of firearms or other instruments.

FEINGOLD: I accept that answer, and I'm going to move on to another area I like to call secret law, and that's the development of controlling legal authority that has direct effects on the rights of Americans, but is done entirely in secret.

FEINGOLD: There are two strong examples of that. First, the FISA court often issues rulings containing substantive interpretation of the FISA act or FISA that, with very few exceptions, have been kept from the public. And until a recent change in the law, many of them were not available to the full Congress, either, meaning that members had been called upon to vote on statutory changes without knowing how the court had interpreted the existing statutes.

Second, the Office of Legal Counsel at the Justice Department issues legal opinions that are binding on the executive branch, but are also often kept from the public and Congress. Now, I understand that these legal documents may sometimes contain classified operational details that would need to be redacted. But I'm concerned that the meaning of law, like FISA, which directly affects the privacy rights of Americans could develop entirely in secret. I think it flies in the face of our traditional notion of an open and transparent American legal system.

Does this concern you at all? Can you say a little bit about the importance of the law itself being public?

SOTOMAYOR: Well, the question for a judge, as a judge would look at it, is to examine first what policy choices the Congress is making in its legislation. It is important to remember that some of the issues that you are addressing were part of congressional legislation as to how FISA would operate. And, as you just said, there's been amendments subsequent to that. And so, a court would start with what Congress has -- what Congress has done, and whether the acts of the other branch of government is consistent with that or not.

The issue of whether and how a particular document would affect national security or affect questions of that nature would have to be looked at in -- with respect to an individual case. And, as I understand it, there are review processes in the FISA procedure. I'm not a member of that court. So, I'm -- I'm not intimately familiar with those procedures. But I know that this is a part of the review process there, in part.

And so, when you ask concern, there is always some attention paid to the issue of -- of the public reviewing or looking at the actions that a court is taking. But that also is tempered with the fact that there are situations in which complete openness can't be had for a variety of different reasons.

And so, courts -- I did as a District Court judge, and I have as a Circuit Court judge -- looked at situations in which judges had to -- had to determine whether juries should be impaneled anonymously. And in those situations, we do consider the need for public actions. But we also consider that there may be, in some individual situations, potential threats to the safety of jurors that require an anonymous jury.

I'm attempting to speak about this as a -- always a question of balance.

(UNKNOWN): But -- but most (inaudible)...

(CROSSTALK)

SOTOMAYOR: You have to look at first what Congress says about that.

(UNKNOWN): But the concerns you just raised, don't they have to do more with the facts that shouldn't be revealed than the legal basis? It's -- it's sort of hard for me to imagine a threat to national security by revealing properly redacted documents that simply refer to the legal basis for something. Isn't there a distinction between those two things?

SOTOMAYOR: I -- I can't -- it's difficult to speak from the abstract. In -- in large measure, just as I explained, I've never been a part of the FISA court. And so, I've never had the experience of reviewing what those documents are, and whether they, in fact, can be redacted or not without creating risk to national security. And one has to think about what the -- what explanations the government has. There are so many issues a court would have to look at. (UNKNOWN): Let me go to something completely different. There's been a lot of talk about this concept of empathy in the context of your nomination. A judge's ability to feel empathy does not, of course, mean the judge should rule one way or another, as you well explained.

But I agree with President Obama that it's a good thing for our country for judges to understand the real-world implications of their decisions and the effects on regular Americans and to seek to understand both sides of an issue.

Judge, your background is remarkable. As you explained yesterday, your parents came to New York from Puerto Rico during World War II. And after your father died, your mother raised you on her own in a housing project in the South Bronx. You are a lifelong New Yorker and a Yankee fan, as I understand it. But many Americans don't live in big cities. Many of my constituents live in rural areas and small towns, and they root for the Brewers and the Packers.

Now, some might think that you don't have a lot in common with them. What can you tell me about your ability as a judge to empathize with them, to understand the everyday challenges of rural and small- town America and how Supreme Court decisions might affect their lives?

SOTOMAYOR: Yes, I live in New York City, and it is a little different than other parts of the country. But I spend a lot of time in other parts of the country. I've visited a lot of states. I've stayed with people who do all types of work. I've lived on -- not lived -- I've visited and vacationed on farms. I've lived and vacationed in mountaintops. I've lived and vacationed in all sorts -- not lived. I'm using the wrong word.

I've visited all sorts of places. In fact, one of my habits is when I travel somewhere new, I try to find a friend I know to stay with them. And it's often not because I can't afford a hotel. Usually, the people who are inviting me would be willing to pay. But it's because I do think it's important to know more than what I live and to try to stay connected to people and to different experiences. I don't think that one needs to live an experience without appreciating it, listen to it, watching it, reading about it. All of those things -- experiencing it for a period of time -- help judges in appreciating the concerns of other experiences that they don't personally have.

And as I said, I try very, very hard to ensure that, in my life, I introduce as much experience with other people's lives as I can.

(UNKNOWN): I realize I'm jumping back and forth through these issues. But the last one I want to bring up has to do with the wartime Supreme Court decisions like Korematsu that we look back at with some bewilderment, of course. The Korematsu v. the United States decision in which the Supreme Court upheld a government policy to round up and detain more than a hundred thousand Japanese-Americans during World War II.

It seems inconceivable that the U.S. government would have decided to put huge numbers of citizens in detention centers based on their race and yet the Supreme Court allowed that to happen. I asked Chief Justice Roberts about this, I'll ask you as well.

Do you believe that Korematsu was wrongly decided?

SOTOMAYOR: It was, sir. (UNKNOWN): Does a judge have a duty to resist the kind of wartime fears that people understandably felt during World War II which likely played a role in the 1944 Korematsu decision? SOTOMAYOR: A judge should never rule from fear. A judge should rule from law and the Constitution. It is inconceivable to me today that a decision permitting the detention and arrest of an individual solely on the basis of their race would be considered appropriate by our government.

FEINGOLD: Now, some of the great justices in the history of our country were involved in that decision. How does a judge resist those kind of fears?

SOTOMAYOR: One hopes, by having the -- the wisdom of a Harlan in Plessy, by having the wisdom to understand always, no matter what the situation, that our Constitution has held us in good stead for over 200 years and that our survival depends on upholding it.

FEINGOLD: Thank you, Judge.

LEAHY: Thank -- thank you very much, Senator Feingold.

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