Sen. Richard J. Durbin 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; 6:00 PM

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LEAHY: Thank you very much, Senator Graham.

Senator Durbin?

DURBIN: Thank you, Mr. Chairman.

Judge, good to see you again.

SOTOMAYOR: Hello, Senator. Thank you.

And I thank you again for letting me use your conference room when I was as hobbled as I was.

DURBIN: You were more than welcome there. And there was more traffic of senators in my conference room than I've seen since I was elected to the Senate, so...


This has been an interesting exercise today for many of us who've been on the Judiciary Committee for a while, because the people new to it may not know, but there's been a little bit of a role reversal here. The Democratic side is now largely speaking in favor of our president's nominee. The other side is asking questions more critical.

And in the previous two Supreme Court nominees, the tables were turned. There were more critical questions coming from the Democratic side.

And there's also another contrast, obvious contrast. The two previous nominees that were considered while I was on the committee, Chief Justice Roberts and Justice Alito, were -- are white males. And, of course, you come to this as a minority woman candidate.

When we asked questions of the white male nominees of a Republican president, we were basically trying to find out whether -- to make sure that they would go far enough in understanding the plight of minorities, because clearly that was not in their DNA. The questions being asked of you from the other side primarily are along the lines of, will you go too far in siding with minorities?

It's an interesting contrast as I watch this play out. And two things have really been the focus on the other side, although a lot of questions have been asked.

One was, I should say, your speeches, one or two speeches. I took a look here. I think you've given over 500 speeches. And so that they would only find fault in one or two to bring up is a pretty good track record from this side of the table. If, as politicians, all we had were two speeches that would raise some questions among our critics, we would be pretty fortunate.

And when it came down to your cases, it appears that you've been involved at least as a federal judge in over 3,000 cases. And it appears that the Ricci case really is the focus of more attention than almost any other decision.

DURBIN: I think that speaks pretty well of you for 17 years on the bench. And I -- I'm going to join, as others have said, in commending the other side, because although their questions have sometimes been pointed, I think they've been fair. And I think you've handled the responses well.

I would like to say that, on the speech, which has come up time and again, the "wise Latina" speech, you know, the next paragraph in that speech -- and I don't know if it has been read to the members, but it should be. Because after you made the quote, which has been the subject of many inquiries here, you went on to say "Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case"

You went on to say, "I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Sieterbaum, (ph) who may still be here, pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues, including Brown"

That, to me, tells the whole story. You are, of course proud of your heritage, as I'm proud of my own, but to suggest that a special insight and wisdom comes with it, is to overlook the obvious. Wise men have made bad decisions, white men have made decisions favoring minorities. Those things have happened when people look to the law and look to the Constitution.

So I would like to get into two or three areas, if I might, to follow up on, because they're areas of particular interest to me. And I'll return to one that Senator Graham just touched on and that is the death penalty.

A book which I greatly enjoyed, I don't know if you ever had a chance to read, "Becoming Justice Blackmun" a story of Justice Blackmun's career and many of the things that happened to him. Now, late in his career, he decided that he could no longer support the death penalty. And it was a long, thoughtful process that brought him to this moment.

And he made the famous statement, maybe the best-known line attributed to him, in a decision, Collins, vs. Collins, "From this day forward, I no longer shall tinker with the machinery of death" The opinion said, and I quote, "Twenty years have passed since" and this is 1994.

"Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency, or not at all. See Furman vs. Georgia and despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake."

Judge Sotomayor, I know that you've thought about this issue. Senator Graham made reference to the Puerto Rican Legal Defence Education Fund memo that you once signed on the subject. What is your thought about Justice Blackmun's view that, despite our best legal efforts, the imposition of the death penalty in the United States has not been handled fairly.

SOTOMAYOR: With respect to the position the fund took in 1980-81 with respect to the death penalty, that was, as I noted, a question of being an advocate and expressing views on behalf of a community on a policy choice New York State was making: Should we, or should we not reinstitute the death penalty? As a judge, what I have, and look at and realize is, that in 30 years, or 40, actually, there has been -- excuse me, Senator. Oh, I'm sorry.

(UNKNOWN): It's all right.

SOTOMAYOR: ... enormous changes in our society, many, many cases looked at by the Supreme Court addressing the application of the death penalty, addressing issues of its application and when they're constitutional or not. The state of this question is different today than it was when Justice Blackmun came to his views.

As a judge, I don't rule in an abstract. I rule in the context of a case that comes before me and a challenge to a situation and an application of the death penalty that arises from an individual case.

I've been and am very cautious about expressing personal views since I've been a judge. I find that people who listen to judges express their personal views on important questions that the courts are looking at, that they have a sense that the judge is coming into the process with a closed mind, that their personal views will somehow influence how they apply the law.

That's one of the reasons why, since I've been a judge, I've always been very careful about not doing that. And I think my record speaks more loudly than I can...

(UNKNOWN): It does.

SOTOMAYOR: ... about the fact of how careful I am about ensuring that I'm always following the law and not my personal views.

(UNKNOWN): Well, and the one death penalty case that you handled as a district court judge, United States v. Heatley, this is after, in 1983, I believe it was or 1981, I'm sorry, that you signed on to the Puerto Rican Legal Defense Education Fund memo recommending that the organization oppose reinstituting the death penalty in New York.

After you'd done that, some years later, you were call on to rule on a case involving the death penalty. Despite the policy concerns that you and I share, you denied the defendant's motion to dismiss and pave the way for the first federal death penalty case in Manhattan in more than 40 years.

Now, the defendant, ultimately accepted a plea bargain of life, and you rejected his challenge to the death penalty and found that he'd shown no evidence of discriminatory intent. So that makes your point. Whatever your personal feelings, you, in this case, at the district court level, ruled in a fashion that upheld the death penalty.

I guess I am trying to take it a step beyond. And maybe you won't go to where I want to take you, and some nominees don't. But I guess the question that arises in my mind is how a man like Justice Blackmun, after a life on the bench, comes to the conclusion that, despite all our best efforts, the premise of your 1981 memo is still the same; that, ultimately, the imposition of the death penalty in our country is too arbitrary. Minorities in America today account for a decision proportionate 43 percent of executions. That's a fact since 1976.

And while white victims account for about one-half of all murder victims, 80 percent of death penalty cases involve victims who are white. This raises from obvious questions we have to face on this side of the table.

I'm asking you if it raises questions of justice and fairness on your side of the table.

SOTOMAYOR: In the Heatley case, it was the first prosecution in the Southern District of New York of a death penalty case in over 40 years.

Mr. Heatley was charged with being a gang leader of a crack and cocaine enterprise who engaged in over -- if the number wasn't 13, it was very close to that, 13 murders to promote that enterprise.

He did challenge the application of the death penalty charges against him on the ground that the prosecutor had made its decision to prosecute him and refused him a cooperation agreement on the basis of his race.

The defense counsel, much as you have, Senator, raised any number of concerns about the application of the death penalty. And in the response to his argument, I held hearings not on that question, but on the broader question of what had motivated -- on the specific legal question, what had motivated this prosecutor to enter this prosecution and whether he was denied the agreement he sought on the basis of race. I determined that that was not the case and rejected his challenge.

With respect to the issues of concerns about the application of the death penalty, I noted for the defense attorneys that, in the first instance, one back question of the -- the effects of the death penalty, how it should be done, what circumstances warrant it or don't, in terms of the law, that that's a legislative question.

And, in fact, I said to him -- I -- I acknowledged his concerns. I acknowledged that many had expressed views about that. But that's exactly what I said, which is, I can only look at the case that's before me and decide that case.

DURBIN: And this is a recent case before the Supreme Court I'd like to make reference to, D.A.'s Office v. Osborne, involving DNA. It turns out there are only three states in the United States that don't provide state legislative access to DNA evidence that might be -- might exonerate someone who is in prison.

I am told that, since 1989, 240 post-conviction DNA exonerations have taken place across this country, 17 involving inmates on death row. Now, the Supreme Court in the Osborne case was asked, what about those three states? Is there a federal right to access to DNA evidence for someone currently incarcerated who questions whether or not they were properly charged and convicted? And the court said, no, there was no federal right, but it was a 5-4 case. So, though I don't quarrel with your premise that it's our responsibility on this side of the table to look at the death penalty, the fact is, in this recent case, this Osborne case, there was a clear opportunity for the Supreme Court right across the street to say, "We think this gets to an issue of due process as to whether someone sitting on death row in Alaska, Massachusetts or Oklahoma, where their state law gives them no access, under the law, to DNA evidence."

So I ask you, either from the issue of DNA or from other perspectives, isn't it clear that the Supreme Court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?

SOTOMAYOR: The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the Court may conclude that the state has acted unconstitutionally and invalidate the act, but it's difficult to answer a question about the role of the Court outside of the functions of the Court which is we don't make broad policies. We decide questions based on cases and the principles implicated by that particular case before you.

(UNKNOWN): I follow you, and I understand the limitations on policy-related questions that you are facing. So I'd like to go to another area relating to policy and ask your thoughts on it. We have, on occasion, every two years here, a chance to go across the street for a rather historic dinner. The members of the United States Senate sit do you know with the members of the U.S. Supreme Court. We look forward to it. It's a tradition that's maybe six or eight years old, Mr. Chairman. I don't think much older.

LEAHY: Great tradition.

(UNKNOWN): Great tradition. And we get -- we get to meet them. They get to meet us. I sat down with one Supreme Court justice, I won't name this person. But I said at that time that I was character a crime subcommittee in Judiciary and said to this justice what topic do you think I should be looking into as a senator when it comes to justice in the United States. And this justice said our system of corrections and incarceration in America. It has to be the worst. It's hard to imagine how it could be much worse if we tried to design it that way. Today, in the United States, 2.3 million people are in prison. We have the most prisoners of any country in the world as well as the highest per capita rate of prisoners in the world. In America today, African-Americans are incarcerated six times the rate of white Americans. Now, there's one significant reason for this, and you have faced at least an aspect of it as a judge, and that is the crack powder disparity in sentencing. I will readily concede I voted for it as did many members of the House of Representatives frightened by the focus of this new, narcotic called crack that was so cheap and so destructive that we had to do something dramatic. We did. We put a hundred to one ratio in terms of sentencing. Now, we realize we made a serious mistake. Eighty-one percent of those convicted for crack offenses in 2007 were African-American although only about 25 percent of crack cocaine users are African-Americans. I held a hearing on this, and a Judge Walton (ph), associate director of the Office of National Drug Control Policy testified. And he basically said that this sentenced disparity between crack and powder has had a negative impact in courtrooms across America. Specifically, he stated that people come to view the courts with suspicion as institutions that mete out unequal justice and the moral authority of not only the federal courts but all courts as diminished.

(UNKNOWN): I might say for the record that this administration has said they want to change this and make it 1 to 1. We are working on legislation in a bipartisan basis to do so. You faced this as a judge, at least some aspect of it. You sentenced Louis Gomez, a nonviolent drug offender, to a five-year mandatory minimum. And you said when you sentenced him, you do not deserve this, sir. I am deeply sorry for you and your family, but I have no choice. May I ask you to reflect for a moment if you can beyond this specific case or using this specific case on this question of race and justice in America today? It strikes me -- it goes to the heart of our future as a nation and whether we can finally come to grips and put behind us some of the terrible things that have happened in our history.

SOTOMAYOR: It's so unsatisfying, I know, for you and probably the other senators when a nominee to the court doesn't engage directly with the societal issues that are so important to you, both as citizens and senators. And I know they are important to you because this very question you just mentioned to me is part of bipartisan efforts that you're making.

And I respect that many have concerns on lots of different issues. For me as a judge, both on the circuit or potentially as a nominee to the Supreme Court, my role is a very different one. And in the Louise Gomez (ph) case, we weren't talking about the disparity. We were talking about the -- the quantity of drug and whether I had to follow the law on the statutory minimum that Congress required for the weight of drugs at issue.

In expressing a recognition of the family situation and the uniqueness of that case, it was at a time when Congress had not recognized the safety valve for first-time offenders under the drug laws. That situation had motivated many judges in many situations to comment on the question of whether the law should be changed to address the safety value question then make a statement making any suggestions to Congress.

I followed the law. But I know that the attorney general's office, many people spoke to Congress on this issue. And Congress passed a safety valve.

With respect to the crack cocaine disparity, as you may know, the guidelines are no longer mandatory as a result of a series of recent Supreme Court cases -- not so recent, but Supreme Court cases, probably almost in the last 10 years. I think the first one, Apprendi (ph), was in 2000, if my memory is serving me right -- or very close to that.

At any rate, that issue in -- was addressed recently by the Supreme Court in the case called U.S. v. Kimbro (ph). And the court noted that the sentencing commission's recommendation of sentences was not based on its considered judgment that the 100-to-one ratio was an appropriate sentence for this conduct. And the court recognized that sentencing judges could take that fact into consideration in fashioning an individual sentence for a defendant.

And, in fact, the sentencing commission in very recent time has permitted defendants who have been serving prior sentences in certain situations to come back to court and have the courts reconsider whether their sentences should be reduced in a way specified under the procedures established by the sentencing commission.

SOTOMAYOR: This is an issue that I can't speak further about because it is an issue that's being so actively discussed by Congress and which is controlled by law. But as I said, I -- I can appreciate why not saying more would feel unsatisfying, but I am limited by the role I have.

DURBIN: One last question I'll ask you. I'd like to hear your perspective on our immigration courts.

A few years ago, Judge Richard Posner from my home state of Illinois brought this problem to my attention. In 2005, he issued a scathing opinion criticizing our immigration courts in America. He wrote, and I quote, "The adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice," end of quote.

For those who don't know this Judge Posner, he is an extraordinary man. I wouldn't know where to put him exactly on the political spectrum, because I'm not sure what his next book will be. He has written so many books. He is a very gifted and thoughtful person.

In 2002, then-Attorney General John Ashcroft issued so-called streamlining regulations that made dramatic changes in our immigration courts, reducing the -- the size of the Board of Immigration Appeals from 23 to 11. This board stopped using three-member panels, and board members began deciding cases individually, often within minutes and without written opinions.

In response, immigrants began petitioning the federal appellate court in large numbers. In 2004, immigration cases constituted 17 percent of all federal appeals, up from 3 percent in 2001, the last year before the regulations under Attorney General Ashcroft.

I raised this issue with Justice Alito during his confirmation hearing, and he told me, and I quote, "I agree with Judge Posner that the way these cases are handled leaves an enormous amount to be desired. I've been troubled by this."

What has been your experience on the circuit court when it came to these cases? And what is your opinion of Judge Posner's observation in this 2005 case?

SOTOMAYOR: There's been four years since Judge Posner's comments, and they have to be placed somewhat in perspective. Attorney General Ashcroft's what you described as streamlining procedures have been by, I think, all of the circuit courts that have addressed the issue affirmed and given Chevron deference.

So the question is not whether the streamline procedures are constitutional or not, but what happened when he instituted that procedure is that, with all new things, there were many imperfections. New approaches to things create new challenges.

And there's no question that courts faced with large numbers of immigration cases, as was the Second Circuit -- I think we had the second-largest number of new cases that arrived at our doorsteps, the Ninth Circuit being the first, and I know the Seventh had a quite significantly large number, were reviewing processes that, as Justice Alito said, left something to be desired in a number of cases.

I will say that that onslaught of cases and the concerns expressed in the number of cases by the judges in the dialogue that goes on in court cases with administrative bodies, with Congress resulted in more cooperation between the courts and the immigration officials in how to handle these cases, how to ensure that the process would be improved. I know that the attorney general's office devoted more resources to the handling of these cases.

There is always room for improvement. The agency is handling so many matters, so many cases, has so many responsibilities making sure that it has adequate resources and training is an important consideration, again in the first instance by Congress because you set the budget.

In the end what we can only do is ensure that due process is applied in each case according to the law required for the review of these cases.

DURBIN: Do you feel that it's changed since 2005 when Judge Posner said the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice?

SOTOMAYOR: Well, I wouldn't -- I'm not endorsing his views because he can only speak for himself. I do know that in, I would say, the last two or three years the number of cases questioning the processes in published circuit court decisions has decreased.

DURBIN: Thank you very much.

Thank you, Mr. Chairman.

LEAHY: Thank you very, very much, Senator Durbin.

I have -- I have discussed this with Senator Sessions. And as I told him earlier, also with his -- at his request we would have a -- we haven't finished the first round. But once we finish the first round of questions, we'll have 20-minute rounds on the second. I'm going to urge senators that they don't feel the need to use the whole round, just as Senator Durbin just demonstrated, that they not. But here will be the schedule.

We will break for today. We will have -- we will begin at 9:30 in the morning. We will finish the first round of questions. I'll ask -- the last round will be asked by Senator Franken. And then we will break for the traditional closed door session with the -- with the nominee.

And so, for those who have not seen one of these before, we do this with all Supreme Court nominees. We have a closed session just for the nominee. We go over the FBI report. We do it with all of them. I think we generally say it's routine. And we did it with Justice Roberts and -- or Chief Justice Roberts and Justice Alito and Justice Breyer and everybody else.

Then we'll come back for a round of 20 minutes each. But during that round, I will encourage senators if they feel all questions have been asked -- I realize sometimes all questions may have been asked but not everybody has asked all of the questions -- that we try to ask, at least, something new so -- to keep up the interest. And then -- and then we can determine whether we're prepared, depending on how late it is, whether we can do the panels or whether we have to do the panels on Thursday. Is that...

SESSIONS: Thank you, Chairman Leahy. And I do think that the scheme you arranged for this hearing is good the way we've gone forward. I thank you for that. We've done our best to be ready and in a short timeframe. And I believe the members on this side are ready.

Talking of questions, there ain't no harm in asking. Isn't that a legal rule, to get people to reduce their time? But there's still some important questions. And I think we will certainly want to use -- most members would want to use their 20 minutes. And then I appreciate that and look forward to being with you in the morning.

LEAHY: First when I asked the question I probably violated the first rule that I learned as a trial lawyer. You shouldn't ask a question if you don't know what the answer is going to be. But then I also have that other aspect where hope springs eternal. And as we have a whole lot of other things going on in the Senate, I would hope we might.

And, Senator Cardin and Senator Whitehouse and Senator Klobuchar, Senator Specter and Senator Franken, I am sorry that we didn't get to you yet. But we will before we do the closed session.

Judge, thank you very much.

SOTOMAYOR: Thank you.

LEAHY: We stand in recess.

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