Wednesday, July 15, 2009 9:37 AM
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SEN. PATRICK LEAHY: Good morning, everyone.
Judge, it's good to see you back and your -- and your family.
Judge Sotomayor, yesterday, you answered questions from 11 senators. Frankly, I freely demonstrated your commitment to the fair and impartial application of law. You certainly demonstrated your composure and patience and your extensive legal knowledge.
Today, we'll have questioning from the remaining eight members of the committee, and then just to set the schedule, once we have finished that questioning, we will arrange a time to go into the traditional -- something we do every time for the street nominee -- traditional closed-door session which is usually not very lengthy, and then go back to others.
I've talked about Senator Sessions. We will then go to a second round of questions of no more than 20 minutes each. I've talked with a number of senators who have told me they will not use anywhere near that 20 minutes, although every senator has the right to do it. And I would hope we might be able to wrap it up.
But we're going to go to Senator Cornyn, himself a former member of the Texas Supreme Court and former attorney general.
LEAHY: And, Senator Cornyn, it's yours.
CORNYN: Thank you, Mr. Chairman.
Good morning, Judge.
SOTOMAYOR: Good morning, Senator. It's good to see you again.
CORNYN: Good to see you. I recall, when we met in my office, you told me how much you enjoy the back-and-forth that lawyers and judges do. And I appreciate the good humor and attitude that you've brought to this. And I very much appreciate your -- your willingness to serve on the highest court in the land.
I'm afraid that sometimes in the past these hearings have gotten so downright nasty and contentious that some people are dissuaded from willingness to serve, which I think is a great -- is a great tragedy. And, of course, some have been filibustered. They have been denied the opportunity to have an up-or-down vote on the Senate floor.
I told you, when we visited my office, that's not going to happen to you if I have anything to say about it. You will get that up-or- down vote on the Senate floor.
But I want to ask your assistance this morning to try to help us reconcile two pictures that I think have emerged during the course of this hearing. One is, of course, as Senator Schumer and others have talked about, your lengthy tenure on the federal bench as a trial judge and court of appeals judge.
And then there's the other picture that has emerged that -- from your speeches and your other writings. And I need your help trying to reconcile those two pictures, because I think a lot of people have -- have wondered about that.
And I guess the reason why it's even more important that we understand how you reconcile some of your other writings with your judicial experience and tenure as a fact that, of course, now you will not be a lower court judge subject to the appeals to the Supreme Court. You will be free as a United States Supreme Court justice to basically do what you want with no court reviewing those decisions, harkening back to the quote we started with during my opening statement about the Supreme Court being infallible only because it's final.
So I want to just start with the comments that you made about the "wise Latina" speech that, by my count, you made at least five times between 1994 and 2003. You indicated that this was really -- and please correct me if I'm wrong, I'm trying to quote your words -- a, quote, "failed rhetorical flourish that fell flat."
I believe at another time you said they were, quote, "words that don't make sense," close quote. And another time, I believe you said it was, quote, "a bad idea," close quote.
Am I accurately characterizing your thoughts about the use of that -- of that phrase that has been talked about so much?
SOTOMAYOR: Yes, generally. But the point I was making was that Justice O'Connor's words, the ones that I was using as a platform to make my point about the value of experience generally in the legal system, was that her words literally and mine literally made no sense, at least not in the context of what judges do or -- what judges do.
SOTOMAYOR: I didn't and don't believe that Justice O'Connor intended to suggest that, when two judges disagree, one of them has to be unwise. And if you read her literal words -- that wise old men and wise old women would come to the same decisions in cases -- that's what the words would mean, but that's clearly not what she meant. And if you listen to my words, it would have the same suggestion that only Latinos would come to wiser decisions.
But that wouldn't make sense in the context much my speech either because I pointed out in the speech that eight, nine white men had decided Brown v. Board of Education.
And I know noted in a separate paragraph of the speech that -- that no one person speaks in the voice of any group. So my rhetorical flourish, just like hers, can't be read literally. It had a different meaning in the context of the entire speech
CORNYN: But, Judge, she said a wise man and a wise woman would reach the same conclusion. You said that a wise Latina woman would reach a better conclusion than a male counterpart.
What I'm confused about, are you standing by that statement? Or are you saying that it was a bad idea and you -- are you disavowing that statement?
SOTOMAYOR: It is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. They didn't work. The message that the entire speech attempted to deliver, however, remains the message that I think Justice O'Connor meant, the message that higher nominees, including Justice Alito meant when he said that his Italian ancestry, he considers when he's deciding discrimination cases.
I don't think he meant -- I don't think Justice O'Connor meant that personal experiences compel results in any way. I think life experiences generally, whether it's that I'm a Latina or was a state prosecutor or have been a commercial litigator or been a trial judge and an appellate judge, that the mixture of all of those things, the amalgam of them help me to listen and understand.
But all of us understand because that's the kind of judges we have proven ourself to be, we rely on the law to command the results in the case. So when one talks about life experiences, and even in the context of my speech, my message was different than I understand my words have been understood by some. CORNYN: So you -- do you stand by your words of yesterday when you said it was a failed rhetorical flourish that fell flat? That they are words that don't make sense and that they're a bad idea?
SOTOMAYOR: I stand by the words. It fell flat. And I understand that some people have understood them in a way that I never intended. And I would hope that, in the text of the speech, that they would be understood.
CORNYN: Well, you spoke about the law students to whom these comments from frequently directed and your desire to inspire them. If, in fact, the message that they heard was that the quality of justice depends on the sex, race, or ethnicity of the judge, is that an understanding that you would regret?
SOTOMAYOR: I would regret that because, for me, the work I do with students -- and it's just not in the context of those six speeches. As you know, I give dozens more speeches to students all the time and to lawyers of all backgrounds, and I give -- and have spoken to community groups of all type.
And what I do in each of those situations is to encourage both students and, as I did when I spoke to new immigrants that was admitting as students, to try to encourage them to participate on all levels of our society. I tell people that that's one of the great things about America, that we can do so many different things and participate so fully in all of the opportunities America presents.
And so the message that I deliver repeatedly and as the context of all of my speeches is I've made it. So can you. Work hard at it. Pay attention to what you're doing, and participate.
CORNYN: Let me ask about another speech you gave in 1996 that was published in the Suffolk University Law Review, where you wrote what appears to be an endorsement of the idea that judges should change the law. You wrote, quote, "Change, sometimes radical change, can and does occur in a legal system that serves a society whose social policy itself changes." You noted, with apparent approval, that, quote, "A given judge or judges may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction," close quote.
Can you explain what you meant by those words?
SOTOMAYOR: The title of that speech was, "Returning Majesty To The Law." As I hope I communicated in my opening remarks, I'm passionate about the practice of law and judging, passionate in sense of respecting the rule of law so much. The speech was given in the context of talking to young lawyers and saying, "Don't participate in the cynicism that people express about our legal system."
CORNYN: What kind of ...
SOTOMAYOR: I ...
CORNYN: Excuse me. I'm sorry. I didn't mean to interrupt you.
SOTOMAYOR: And I was encouraging them not to fall into the trap of calling decisions that the public disagrees with, as they sometimes do, activism or using other labels, but to try to be more engaged in explaining the law and the process of law to the public. And in the context of the words that you quoted to me, I pointed out to them explicitly about evolving social changes, that what I was referring to is Congress is passing new laws all the time. And so whatever was viewed as settled law previously will often get changed because Congress has changed something.
I also spoke about the fact that society evolves in terms of technology and other developments, and so the law is being applied to a new set of facts. In terms of talking about different approaches in law, I was talking about the fact that there are some cases that are viewed as radical, and I think I mentioned just one case, Brown v. Board of Education, and explaining and encouraging to -- them to explain that process, too.
SOTOMAYOR: And there are new directions in the law in terms of the court. The court -- Supreme Court is often looking at its precedents and considering whether, in certain circumstances whose precedent is owed, deference for very important reasons, but the court takes a new direction. And those new directions rarely, if ever, come at the initiation of the court. They come because lawyers are encouraging the court to look at a situation in a new way, to consider it in a different way.
What I was telling those young lawyers is: Don't play into people's skepticism about the law. Look to explain to them the process.
I also, when I was talking about returning majesty to the law, I spoke to them about what judges can do. And I talked about, in the second half of that speech, that we had an obligation to ensure that we were monitoring the behavior of lawyers before us so that, when questionable, ethical, or other conduct could bring disrepute to the legal system, that we monitor our lawyers, because that would return a sense...
CORNYN: Judge, if you let me -- I think we're straying away from the question I had talking about oversight of lawyers. Would you explain how, when you say judges should -- or, I'm sorry, let me just ask. Do you believe that judges ever change the law? I take it from your statement that you do.
SOTOMAYOR: They change -- they can't change law. We're not lawmakers. But we change our view of how to interpret certain laws based on new facts, new developments of doctrinal theory, considerations of whether -- what the reliance of society may be in an old rule.
We think about whether a rule of law has proven workable. We look at how often the court has affirmed a prior understanding of how to approach an issue. But in those senses, there's changes by judges in the popular perception that we're changing the law.
CORNYN: In another speech in 1996, you celebrated the uncertainty of the law. You wrote that the law is always in a, quote, "necessary state of flux," close quote.
You wrote that the law judges declare is not, quote, "a definitive -- capital L -- Law that would make -- that may -- many would like to think exists," close quote, and, quote, "that the public fails to appreciate the importance of indefiniteness in the law." Can you explain those statements? And why do you think indefiniteness is so important to the law?
SOTOMAYOR: It's not that it's important to the law as much as it is that it's what legal cases are about. People bring cases to courts because they believe that precedents don't clearly answer the fact situation that they're presenting in their individual case. That creates uncertainty; that's why people bring cases.
And they say, "Look, the law says this, but I'm entitled to that." "I have this set of facts that entitle me to relief under the law." It's the entire process of law. If law was always clear, we wouldn't have judges. It's because there is indefiniteness not in what the law is, but its application to new facts that people sometimes feel it's unpredictable.
SOTOMAYOR: That speech, as others I've given, is an attempt to encourage judges to explain to the public more of the process. The role of judges is to ensure that they are applying the law to those new facts, that they're interpreting that law with Congress' intent, being informed by what precedents say about the law and Congress' intent and applying it to the new facts.
But that's what the role of the courts is. And, obviously, the public is going to become impatient with that if they don't that process. And I'm encouraging lawyers to do more work in explaining the system, in explaining what we are doing as courts.
CORNYN: In a 2001 speech at Berkeley, you wrote, quote, "whether borne from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague, Judge Sederbaum, our gender and national origins may and will make a difference in our judging," close quote.
The difference -- a difference is physiological if it relates to the mechanical, physical, or biochemical functions of the body, as I understand the word. What do you mean by that?
SOTOMAYOR: I was talking just about that. There are, in the law, there have been upheld, in certain situations, that certain job positions have a requirement for a certain amount of strength or other characteristics that may be the -- a person who fits that characteristic can have that job.
But there are differences that may affect a particular type of work. We do that all the time.
CORNYN: We're talking about judging.
SOTOMAYOR: You need to be a pilot who has good eyesight.
CORNYN: We're not talking about pilots. We're talking about judging. Right?
SOTOMAYOR: No, no, no. But what I'm -- was talking about there because the context of that was talking about the difference in the process of judging. And the process of judging, for me, is what life experiences brings to the process. It helps you listen and understand. It doesn't change what the law is or what the law commands.
My life experience, as a prosecutor, may help me listen and understand an argument in a criminal case. It may have no relevancy to what happens in a anti-trust suit. It's just a question of the process of judging. It improves both the public's confidence that there are judges from a variety of different backgrounds on the bench because they feel that all issues will be more -- better at least addressed. Not that it's better addressed, but that it helps that process of feeling confident that all of arguments are going to be listened to and understood.
CORNYN: So you stand by the comment or the statement that inherent physiological differences will make a difference in judging?
SOTOMAYOR: I'm not sure -- I'm not sure exactly where that would play out, but I was asking a hypothetical question in that paragraph. I was saying, look, we just don't know. If you read the entire part of that speech, what I was saying is let's ask the question. That's what all of these studies are doing. Ask the question if there's a difference.
Ignoring things and saying, you know, it doesn't happen isn't an answer to a situation. It's consider it. Consider it as a possibility and think about it. But I certainly wasn't intending to suggest that there would be a difference that affected the outcome. I talked about there being a possibility that it could affect the process of judging.
CORNYN: As you can tell, I'm struggling a little bit to understand how your statement about physiological differences could affect the outcome or affect judging and your stated commitment to fidelity to the law as being your sole standard and how any litigant can -- can know where that will end.
But let me ask you on another topic. There was a Washington Post story on May the 29th, 2009, where -- that starts out saying, "The White House scrambled yesterday to assuage worries from liberal groups about Judge Sonia Sotomayor's scant record on abortion rights." And White House -- it goes on to say, "White House press secretary said the president did not ask Sotomayor specifically about abortion rights during their interview."
Is that correct?
SOTOMAYOR: Yes, it's absolutely correct. I was asked no questions by anyone, including the president, about my views on any specific legal issue.
CORNYN: Do you know then on what basis, if that's the case -- and I accept your statement -- on what basis that White House officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in a challenge to Roe v. Wade?
SOTOMAYOR: No, sir, because you just have to look at my record to know that, in the cases that I addressed on all issues, I follow the law.
CORNYN: On what basis would George Pavia, who was apparently a senior partner in the law firm that hired you as a corporate litigator, on what basis would -- would he say that he thinks support of abortion rights would be in line with your generally liberal instincts?
He's -- he's quoted in his article saying, quote, "I can guarantee she'll be for abortion rights," close quote. On what basis would Mr. Pavia say that, if you know?
SOTOMAYOR: I have no idea, since I know for a fact I never spoke to him about my views on abortion, frankly, on my views on any social issue. George was the -- was the head partner of my firm, but our contact was not on a daily basis.
I have no idea why he's drawing that conclusion, because if he looked at my record, I have ruled according to the law in all cases addressed to the issue of termination of abortion rights -- of women's right to terminate their pregnancy. And I voted in cases in which I upheld the application of the Mexico City policy, which was a policy in which the government was not funding certain abortion-related activities.
CORNYN: Do you agree -- do you agree with his statement that you have generally liberal instincts?
SOTOMAYOR: If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and the attempts to assure that.
But he has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them.
CORNYN: Well, I hope, as you suggested, not only liberals endorse the idea of equal opportunity in this country -- that's a -- that's a, I think, bedrock doctrine that undergirds all of our -- all of our law.
But that brings me, in the short time I have left, to the New Haven firefighter case.
As you know, there are a number of the New Haven firefighters who are here today and will testify tomorrow. And I have to tell you, your Honor, as a former judge myself, I was shocked to see that the sort of treatment that the three-judge panel you served on gave to the claims of these firefighters by an unpublished summary order which has been pointed out in the press would not likely to be reviewed or even caught by other judges on the Second Circuit except for the fact that Judge Cabranes read about a comment made by the lawyer representing the firefighters in the press that the court gave short shrift to the claims of the firefighters.
Judge Cabranes said the core issue presented by this case, the scope of a municipal employer's authority to disregard examination results based solely on the successful applicant is not addressed by any precedent of the Supreme Court or our circuit.
And looking at the -- looking at the unpublished summary order, this three-judge panel of the Second Circuit doesn't cite any legal authority whatsoever to support its conclusion. Can you explain to me why -- why you would deal with it in a way that appears to be so -- well, dismissive may be too strong a word -- but avoid the very important claims that the Supreme Court, ultimately, reversed you on that were raised by the firefighters appeal?
SOTOMAYOR: Senator, I can't speak to what brought this case to Judge Cabranes' attention. I can say the following, however. When parties are dissatisfied with a panel decision, they can file a petition for rehearing and bond (ph). And, in fact, that's what happened in the Ricci case.
Those briefs are routinely reviewed by judges. And so publishing by summary order or addressing an issue by summary order or by published opinion doesn't hide the party's claims from other judges. They get the petitions for rehearing.
Similarly, parties, when they're dissatisfied with what a circuit has done, file petitions for certiorari, which is a request for the Supreme Court to review a case. And so the court looks at that as well. And so regardless of how a circuit decide a case, it's not a question of hiding it from others.
With respect to the broader question that you're raising, which is why do you do it by summary order or why do you do it in a published opinion or in a per curium, the question or the practice is that about 75 percent of circuit court decisions are decided by summary order, in part, because we can't handle the volume of our work if we were writing long decisions in every case. But, more importantly, because not every case requires a long opinion if a district court opinion has been clear and thorough on an issue.
SOTOMAYOR: And in this case, there was a 78-page decision by the district court. It adequately explained the questions that the Supreme Court addressed and reviewed.
And so, to the extent that a particular panel considers that an issue has been decided by existing precedent, that's a question that the court above can obviously revisit, as it did in Ricci, where it looked at it and said, well, we understand what the circuit did, we understand what existing law is, but we should be looking at this question in a new way. That's the job of the Supreme Court.
CORNYN: But, Judge, even the district court admitted that a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations, because they knew that the exams -- they knew that, were the exams certified, the mayor would incur the wrath of Reverend Boise Kimber and other influential leaders of New Haven's African-American community.
So you decided that, based on their claim of potential disparate impact liability, that there's no recourse -- that the city was justified in disregarding the exams and thus denying these firefighters, many of whom suffered hardship in order to study and to prepare for these examinations and were successful, only to see that hard work and effort disregarded and not even acknowledged in the court's opinion.
And, ultimately, as you know, the Supreme Court said that you just can't claim potential disparate impact liability as a city and then deny someone a promotion based on the color of their skin. There has to be a strong basis in evidence.
But you didn't look to see whether there was a basis in evidence to the city's claim. Your summary opinion -- unpublished summary order didn't even discuss that. Don't you think that these firefighters and other litigants deserve a more detailed analysis of their claims and an explanation for why you ultimately deny their claim?
SOTOMAYOR: As you know, the court's opinion issued after discussions en banc recognize, as I do, the hardship that the firefighters experienced. That's not been naysaid by anyone.
The issue before the court was a different one, and the one that the district court addressed was what decision the decision-makers made, not what people behind the scenes wanted the decision-makers to make, but what they were considering. And what they were considering was the state of the law at the time and in an attempt to comply with what they believe the law said and what the panel recognized as what the Second Circuit precedent said, that they made a choice under that existing law.
The Supreme Court in its decision set a new standard by which an employer and lower court should review what the employer is doing by the substantial evidence test. That test was not discussed with the -- with the panel. It wasn't part of the arguments below. That was a decision by the court borrowing from other areas of the law and saying, "We think this would work better in this situation."
CORNYN: My time's up. Thank you.
LEAHY: Thank you. Thank you very much.
I note in the record -- we'll put in the record a letter of support for Judge Sotomayor's nomination from the United States Hispanic Chamber of Commerce on behalf of its 3 million Hispanic-owned business members, 60 undersigned organizations, including the El Paso Hispanic Chamber of Commerce, the Greater Dallas Hispanic Chamber of Commerce, the Houston Hispanic Chamber of Commerce, Odessa Hispanic Chamber of Commerce and a similar letter from the Arizona Hispanic Chamber of Commerce. I meant to put those in the record before. We'll put them in the record now.
SESSIONS: Mr. Chairman?
SESSIONS: I would offer a letter for the record from the National Rifle Association in which they express serious concern about the nomination of Judge Sonia Sotomayor. Also, I notice that the head of that organization, Mr. LaPierre, wrote an article this morning on raising increased concern after yesterday's testimony.
Ask I would also offer for the record a letter from Mr. Richard Land, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, also raising concerns.
LEAHY: And without objection, those will be made part of the record. And we will -- I yield to Senator Cardin.