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

CQ Transcriptions
Tuesday, July 14, 2009; 5:13 PM

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LEAHY: Thank you very much, Senator Schumer.

Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

LEAHY: And then we'll go to Senator Durbin.

GRAHAM: OK. Thank you, Judge. I know it's been a long day, and we'll try to keep it moving here. I think you're one senator after me away from taking a break.

My problem, quite frankly, is that, as Senator Schumer indicated, the cases that you've been involved in to me are left of center, but not anything that jumps out at -- at me, but the speeches really do.

I mean, the speech you gave to the ACLU about foreign law, we'll talk about that probably in the next round, was pretty disturbing. And I keep talking about these speeches because what I'm -- and I listen to you today. I think I'm listening to Judge Roberts.

I mean, I'm, you know, listening to a strict constructionist here, so we've got to reconcile in our own minds here to put the puzzle together to go that last mile, is that you got Judge Sotomayor, who has come a long way and done a lot of things that every American should be proud of.

You've got a judge who has been on a circuit court for a dozen years. Some of the things trouble me, generally speaking left of center, but within the mainstream, and you have these speeches that just blow me away. Don't become a speechwriter, if this law thing doesn't work out, because these speeches really throw a wrinkle into everything.

GRAHAM: And that's what we're trying to figure out. Who are we getting here? You know, who are we getting as a nation?

Now, legal realism, are you familiar with that term?


(UNKNOWN): What does it mean for someone who may be watching the hearing?

SOTOMAYOR: To me, it means that you are guided in reaching decisions in law by the realism of the situation, of the -- it's less -- it looks at the law through the...

(UNKNOWN): Kind of touchy, feely stuff?

SOTOMAYOR: That's not quite words that I would use because there are many academics and judges who have talked about being legal realists, but I don't apply that label to myself at all.

As I said, I look at law and precedent and discern its principles and apply it to the situation...

(UNKNOWN): So you would not be a disciple of the legal realism school?


(UNKNOWN): OK. All right.

Would you be considered a strict constructionist in your own mind?

SOTOMAYOR: I don't use labels to describe what I do. There's been much discussion today about what various labels mean and don't mean. Each person uses those labels and gives it their own sense of...

(UNKNOWN): When Judge Rehnquist says he was a strict constructionist, did you know what he was talking about?

SOTOMAYOR: I think I understood what he was referencing, but his use is not how I go about looking at...

(UNKNOWN): What does strict constructionism mean to you? SOTOMAYOR: Well, it means that you look at the Constitution as its written or statutes as they're written and you apply them exactly by the words.

(UNKNOWN): Right. Would you be an originalist?

SOTOMAYOR: Again, I don't use labels. And because...

(UNKNOWN): What is an originalist?

SOTOMAYOR: In my understanding, an originalist is someone who looks at what the founding fathers intended and what the situation confronting them was, and you use that to determine every situation presented -- not every but most situations presented by the Constitution.

(UNKNOWN): Do you believe the Constitution is a living, breathing, evolving document?

SOTOMAYOR: The Constitution is a document that is immutable to the sense that it's lasted 200 years. The Constitution has not changed except by amendment. It is a process -- an amendment process that is set forth in the document.

It doesn't live other than to be timeless by the expression of what it says. What changes is society. What changes is what facts a judge may get presented...

(UNKNOWN): What's the best way for society to change, generally speaking? What's the most legitimate way for a society to change?

SOTOMAYOR: I don't know if I can use the words "change." Society changes because there's been new development in technology, medicine, in -- in society growing.

(UNKNOWN): Do you think judges -- do you think judges have changed society by some of the landmark decisions in the last 40 years?

SOTOMAYOR: Well, in the last few years?

(UNKNOWN): 40 years.

SOTOMAYOR: I'm sorry. You said...

(UNKNOWN): 40, I'm sorry. 40. Do you think Roe v. Wade changed American society?

SOTOMAYOR: Roe v. Wade looked at the Constitution and decided that the Constitution, as applied to a claim's right, applied.

(UNKNOWN): Is there anything in the Constitution that says a state legislator or the Congress cannot regulate abortion or the definition of life in the first trimester?

SOTOMAYOR: The holding of the Court as...

(UNKNOWN): I'm asking the Constitution. Does the Constitution, as written, prohibit a legislative body at state or federal level from defining life or relating the rights of the unborn or protecting the rights of the unborn in the first trimester?

SOTOMAYOR: The Constitution in the 14th Amendment, has a...

(UNKNOWN): I'm sorry. Is there anything in the document written about abortion?

SOTOMAYOR: The word "abortion" is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process...

(UNKNOWN): And that gets us to the speeches. That broad provision of the Constitution that's taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on, and that's what drives us here, quite frankly. That's my concern. And when we talk about balls and strikes, maybe that's not the right way to talk about it. But a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing. Can you understand how people may feel that way?

SOTOMAYOR: Certainly, sir.

(UNKNOWN): OK. Now, let's talk about you. I like you, by the way, for whatever that matters. Since I may vote for you that ought to matter to you. One thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. And here's what they said about you. She's a terror on the bench. She's temperamental, excitable, she seems angry. She's overall aggressive, not very judicial. She does not have a very good temperament. She abuses lawyers. She really lacks judicial temperament. She believes in an out -- she behaves in an out-of-control manner. She makes inappropriate outbursts. She's nasty to lawyers. She will attack lawyers for making an argument she does not like. She can be a bit of a bully. When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?

SOTOMAYOR: I do ask tough questions at oral arguments.

(UNKNOWN): Are you the only one that asks tough questions in oral arguments?

SOTOMAYOR: No, sir. No, not at all. I can only explain what I'm doing which is when I ask lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that they're right. I do know that, in the Second Circuit, because we only give litigants 10 minutes of oral argument each, that the processes in the second circuit are different than in most other circuits across the country. And that some lawyers do find that our court, which is not just me, but our court generally, is described as a hoc bench, it's term that lawyers use. It means that they're peppered with questions.

Lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging.

(UNKNOWN): If I may interject, judge, they find you difficult and challenging more than your colleagues. And the only reason I mention this is that it stands out. When you -- there are many positive things about you and these hearings are designed to talk about the good and the bad and I never liked appearing before a judge that I thought was a bully. It's hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?

(UNKNOWN): No, sir. I can only talk about what I know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. And I believe that my reputation is stuck as such that I ask the hard questions, but I do it evenly for both sides.

(UNKNOWN): And in fairness to you, there are plenty of statements in the record in support of you as a person, that do not go down this line.

But I will just suggest to you, for what it's worth, judge, as you go forward here, that these statements about you are striking. They're not about your colleagues. The ten-minute rule applies to everybody and that obviously you've accomplished a lot in your life, but maybe these hearings are time for self-reflection. This is pretty tough stuff that you don't see from -- about other judges on the second circuit.

Let's talk about the wise Latino comment, yet again. And the only reason I want to talk about it yet again is that I think what you said -- let me just put my vices on the table here. One of the things that I constantly say when I talk about the war on terror is that one of the missing ingredients in the Mid-East is the rule of law that Senator Schumer talked about. That the hope for the Mid-East, Iraq and Afghanistan is that there'll be a courtroom one day that if you find yourself in that court, it would be about what you allegedly did, not who you are.

It won't be about whether you're a Sunni, Shia, a Kurd or a Pashtun, it will be about what you did. And that's the hope of the world, really, that our legal system, even though we fail at times, will spread. And I hope one day that there will be more women serving in elected office and judicial offices in the Mid-East because I can tell you this, from my point of view. One of the biggest problems in Iraq and Afghanistan is the mother's voice is seldom heard about the fate of her children.

And if you wanted to change Iraq, apply the rule of law and have more women involved and having a say about Iraq. And I believe that about Afghanistan. And I think that's true here.

GRAHAM: I think, for a long time, a lot of talented women were asked, can you type? And were trying to get beyond that and improve as a nation.

So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.

But your speeches don't really say that to me. They -- along the lines of what Senator Kyl was saying -- they kind of represent the idea, there's a day coming when there'll be more of us -- women and minorities -- and we're going to change the law.

And what I hope we'll take away from this hearing is there need to be more women and minorities in the law to make a better America. And the law needs to be there for all of us, if and when we need it.

And the one thing that I've tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we're talking about putting you on the Supreme Court and judging your fellow citizens.

And one of the things that I need to be assured of is that you understand the world as it pretty much really is. And we've got a long way to go in this country, and I can't find the quote, but I'll find it here in a moment -- the wise Latino quote.

Well, do you remember it?



GRAHAM: OK. Say it to me.

Can you recite it from memory?

I've got it.


All right.

"I would hope that a wise Latino (sic) woman, with the richness of her experience, would more often than not reach a better conclusion than a white male." And the only reason I keep talking about this is that I'm in politics. And you've got to watch what you say, because, one, you don't want to offend people you're trying to represent.

But do you understand, ma'am, that if I had said anything like that, and my reasoning was that I'm trying to inspire somebody, they would have had my head? Do you understand that?

SOTOMAYOR: I do understand how those words could be taken that way, particularly if read in isolation.

GRAHAM: Well, I don't know how else you could take that. If Lindsey Graham said that I will make a better senator than X, because of my experience as a Caucasian male makes me better able to represent the people of South Carolina, and my opponent was a minority, it would make national news, and it should.

Having said that, I am not going to judge you by that one statement. I just hope you'll appreciate the world in which we live in, that you can say those things, meaning to inspire somebody, and still have a chance to get on the Supreme Court.

Others could not remotely come close to that statement and survive. Whether that's right or wrong, I think that's a fact.

GRAHAM: Does that make sense to you?

SOTOMAYOR: It does. And I would hope that we've come in America to the place where we can look at a statement that could be misunderstood, and consider it in the context of the person's life.


GRAHAM: You know what? If that comes of this hearing, the hearing has been worth it all, that some people deserve a second chance when they misspeak and you would look at the entire life story to determine whether this is an aberration or just a reflection of your real soul. If that comes from this hearing, then we've probably done the country some good.

Now, let's talk about the times in which we live in. You're from New York. So you've grown up in New York all your life?

SOTOMAYOR: My entire life.

GRAHAM: What did September the 11th, 2001, mean to you?

SOTOMAYOR: It was the most horrific experience of my personal life and the most horrific experience in imagining the pain of the families of victims of that tragedy.

GRAHAM: Do you know anything about the group that planned this attack, who they are and what they believe? Have you read anything about them?

SOTOMAYOR: I've followed the newspaper accounts. I've read some books in the area, so I believe I have an understanding of that...


GRAHAM: What would a woman's life be in their world, if they can control a government or a part of the world? What do they have in store for women?

SOTOMAYOR: I understand that some of them have indicated that women are not equal to men.

GRAHAM: I think that's a very charitable statement. Do you believe that we're at war?

SOTOMAYOR: We are, sir. We have -- we have tens and thousands of soldiers on the battlefields of Afghanistan and Iraq. We are at war.

GRAHAM: Are you familiar with military law much at all? And if you're not, that's OK.


SOTOMAYOR: No, no, no, no. I'm thinking, because I've never practiced in the area. I've only read the Supreme Court decisions in this area.

GRAHAM: Right.

SOTOMAYOR: I've obviously examined by referencing cases some of the procedures involved in military law, but I'm not personally familiar with military law. I haven't participated.

GRAHAM: I understand. From what you read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction?

SOTOMAYOR: Given the announcements of certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent, then the answer would be on -- based on that, yes.

GRAHAM: Under the law of armed conflict -- and this is where I may differ a bit with my colleagues -- it is an international concept, the law of armed conflict.

GRAHAM: Under the law of armed conflict, do you agree with the following statement, that if a person is detained who is properly identified to accepted legal procedures under the law of armed conflict as a part of the enemy force, there is not requirement based on a length of time that they be returned to the battle or released?

In other words, if you capture a member of the enemy force, is it your understanding of the law that you have to, at some period of time, let them go back to the fight?

(UNKNOWN): I -- it's difficult to answer that question in the abstract for the reason that I indicated later. I have not been a student of the law of war, other than to...

(UNKNOWN): We'll have another round. I know you'll have a lot of things to do, but try to-- try to look at that. Look at that general legal concept. And the legal concept I'm espousing (ph) is that under the law of war, Article 5 specifically of the Geneva Convention, requires the detaining authority to allow an impartial decision maker to determine the question of status. Whether or not you're a member of the enemy force.

And see if I'm right about the law, but it that determination is properly had, there is no requirement, under the law of armed conflict, to release a member of the enemy force that still presents a threat. I would like you to look at that.

Now let's talk about --

Thank you.

Let's talk about your time as a lawyer. The Puerto Rican Legal Defense Fund, is that right? Is that the name of the organization?

(UNKNOWN): It was then. I think you'd -- I know it has changed names recently.


How long were you a member of that organization?

(UNKNOWN): Nearly 12 years.


(UNKNOWN): If not 12 years. (UNKNOWN): Right.

During that time, you were involved in litigation matters, is that correct?

(UNKNOWN): The fund was involved in litigations, I was a board member of the fund.


Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?

(UNKNOWN): No, I never reviewed those briefs.

(UNKNOWN): Well, in their briefs, they argued, and I will submit the quotes to you, that if you deny a low-income woman Medicaid funding, taxpayer funds, to have an abortion, if you deny her that, that's a form of slavery. And I can get the quotes.

Do you agree with that?

(UNKNOWN): I wasn't aware of what was said in those briefs. Perhaps it might be helpful if I explained what the function of a board member is and what the function of the staff would be in an organization like the fund.


(UNKNOWN): In a small organization as the Puerto Rican Legal Defense Fund was back then, it wasn't the size of other legal defense funds, like the NAACP Legal Defense Fund, or the Mexican-American Legal Defense Fund, which are organizations that undertook very similar work to PRLDF.

In an organization like PRLDF, a board member's main responsible is to fundraise. And I'm sure that a review of the board meetings would show that that's what we spent most of our time on. To the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the fund.

(UNKNOWN): Did the mission statement of the fund to include taxpayer-funded abortion?

(UNKNOWN): Our mission...

(UNKNOWN): Was that one of the goals?

(UNKNOWN): Our mission statement was broad, like the Constitution.


(UNKNOWN): Which meant that its focus was on promoting the equal opportunities of Hispanics in the United States.

(UNKNOWN): Well, Judge, I've got -- and I'll share them with you, and we'll talk about this more, a host of briefs for a 12-year period, where the fund is advocating to the state court and the federal courts, that to deny a woman taxpayer funds, a low-income woman taxpayer assistance in having an abortion, is a form of slavery, it's an unspeakable cruelty to the life and health of a poor woman.

Was it or was it not the position of the fund to advocate taxpayer-funded abortions to low-income women?

SOTOMAYOR: I wasn't -- and I didn't, as a board member, review those briefs. Our lawyers were charged...

GRAHAM: Would it bother you if that's what they did?

SOTOMAYOR: Well, I know that the fund, during the years I was there, was involved in public health issues as it affected the Latino community. It was involved...

GRAHAM: Is abortion a public health issue?

SOTOMAYOR: Well, it was certainly viewed that way generally by a number of...

GRAHAM: Do you...

SOTOMAYOR: ... civil rights organizations at the time.

GRAHAM: Do you personally view it that way?

SOTOMAYOR: It wasn't a question of whether I personally viewed it that way or not. The issue was whether the law was settled on what issues the fund was advocating on behalf of the community it represented.


GRAHAM: Well, the fund -- oh, I'm sorry. Go ahead.

SOTOMAYOR: And so, the question would become, was there a good faith basis for whatever arguments they were making, as the fund's lawyers were lawyers...

GRAHAM: Well, yes...

SOTOMAYOR: ... who had an ethical obligation...

GRAHAM: And quite frankly, that's, you know -- lawyers are lawyers. And people who have causes that they believe in have every right to pursue those causes.

And the fund, when you look -- you may have been a board member, but I am here to tell you, that file briefs constantly for the idea that taxpayer-funded abortion was necessary, and to deny it would be a form of slavery, challenged parental consent as being cruel.

And I can go down a list of issues that the fund got involved in, that the death penalty should be stricken, because it has -- it's a form of racial discrimination.

What's your view of the death penalty, in terms of personally?

SOTOMAYOR: The issue for me with respect to the death penalty is that the Supreme Court, since Gregg, has determined that the death penalty is constitutional under certain situations.

GRAHAM: Right.

SOTOMAYOR: I have rejected challenges to the federal law and its application in the one case I handled as a district court judge, but it's a reflection of what my views are on...

GRAHAM: As an advocate...

SOTOMAYOR: ... the law.

GRAHAM: As an advocate, did you challenge the death penalty as being an inappropriate punishment, because of the effect it has on race?

SOTOMAYOR: I never litigated a death penalty case personally. The fund...

GRAHAM: Did you ever sign a memorandum saying that?

SOTOMAYOR: I signed the memorandum for the board to take under consideration, what position on behalf of the Latino community the fund should take on New York State reinstating the death penalty in the state.

It's hard to remember, because so much time has passed...

GRAHAM: Yes, well...

SOTOMAYOR: ... in the 30 years since...

GRAHAM: We'll give you a chance to look at some of the things I'm talking about, because I want you to be aware of what I'm talking about.

Let me ask you this. I've got 30 seconds left. If a lawyer on the on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?

SOTOMAYOR: An advocate advocates on behalf of the client they have. And so that's a different situation than how a judge has acted in the cases before him or her.

GRAHAM: OK. And the only reason I mention this, Judge, is that the positions you took or this fund took, I think, like the speeches, tell us some things. And we'll have a chance to talk more about your full life, but I appreciate the opportunity to talk with you.

SOTOMAYOR: Thank you, sir.

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