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Sen. Cardin Questioning at Judge Sotomayor Confirmation Hearing

CQ Transcriptions
Wednesday, July 15, 2009 10:17 AM

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SEN. BENJAMIN CARDIN: Thank you, Mr. Chairman.

And, Judge Sotomayor, good morning. Welcome back to our committee.

I just want you to know that the baseball fans of Baltimore knew there was a judge somewhere that changed in a very favorable way the reputation of Baltimore forever. You are a hero, and they now know it's Judge Sotomayor. You're a hero to the Baltimore baseball fans. Let me explain.

The Major League Baseball strike -- you allowed the season to continue so Cal Ripkin could become the iron man of baseball in September 1995.

(LAUGHTER)

So we just want to invite you, as a baseball fan, we want to invite you to an Oriole game, and we promise it will not be when the Yankees are playing so you can root for the Baltimore Orioles.

(LAUGHTER)

JUDGE SOTOMAYOR: That's a great invitation. And good morning, Senator. You can assure your Baltimore fans that I have been to Camden Yards. It's a beautiful stadium.

CARDIN: Well, we think it's the best. Of course, it was the beginning of the new trends of the baseball stadiums. And you're certainly welcome.

Before this hearing, the people of this country knew that the president had selected someone with incredible credentials to be the Supreme Court member. Now, they know the person is able and is capable and understands the law and has been able to understand what the appropriate role is for a judge in interpreting the law and has done very well in responding to the members of the United States Senate, which I think bodes well for your interaction with attorneys and your colleagues on the bench in having a thorough discussion of the very important issues that will affect the lives of all people in our nation.

I do want to first start with the judicial temperament issue and the reference to the almanac on the federal judiciary. I just really want to quote from other statements that were included in that almanac where they were commenting about you and saying that she is very good. She is bright. She's a good judge. She is very smart. She is frighteningly smart. She is intellectually tough. She is very intelligent. She has a very good common-sense approach to the law. She looks at the practical issues. She is good. She's an exceptional judge overall. She's engaged in oral argument. She is well prepared. She participates actively in oral argument. She is extremely hard working and well prepared.

And I want to quote from one of the judges on your circuit, Judge Minor (ph), who was appointed by President Reagan, when he said I don't think I go as far as to classify her in one camp or another. I think she just deserves the classification of an outstanding judge.

I say that because maybe you would like to comment to these more favorable comments about...

(LAUGHTER)

... how the bar feels about your service on the bench.

SOTOMAYOR: I thank those who have comment in the way they did.

I think that most lawyers who participate in arguments before me know how engaged I become in their arguments in trying to understand them. And as I indicated yesterday, that can appear tough to some people, because active engagement can sometimes feel that way. But my style is to engage as much as I can so I can ensure myself that I understand what a party is intending to tell me.

I am, in terms of what I do, always interested in understanding, and so that will make me an active participant in -- in argument. As I noted yesterday, I have colleagues who never ask questions. There are some judges on the Supreme Court who rarely ask questions and others ask a lot of questions. Judges approach issues in different ways with different styles, and mine happens to be on one end of the style, and others choose others.

CARDIN: Well, I thank you for that response. I agree with you that the Constitution and Bill of Rights are timeless documents and has served our nation well for over 200 years and envy of many other nations.

There are many protections in the Constitution, but I would like to talk a little bit about the civil rights and the -- the basic protections in our Constitution and how we've seen a progression from the Constitution, Bill of Rights to constitutional amendments, including the 13th, 14th, 15th and 19th, through congressional action, through the passage of such bills as the Civil Rights Act of 1964, the Voting Rights Act of 1965, Supreme Court decisions that we've talked about that have changed civil rights in America, made it possible for many people to have the opportunities of this country that otherwise would have been denied.

And we made a lot of progress since the days of segregated schools and restrictions on people's opportunities to vote. But I think we would all do well to remember the advice given to us by our colleague, Senator Edward Kennedy, the former chairman of this committee, as he talks about the civil rights struggle, when he says, and I quote, "The work goes on, the cause endures, the hope still lives, and the dream shall never die."

So I say that as -- as introduction to one area of civil rights, and that is the right to vote, fundamental right. My own experience, in 2006 -- that's just a few years ago -- causes me to be -- have concerns. In my own election, I found that there were lines longer in the African-American precincts to vote than in other precincts. And it was curious as to why this took place. They didn't have as many voting machines; there was a lot of irregularities. And it caused a lot of people who had to get back to work to be denied their right to participate.

We also found on Election Day fraudulent sample ballots that were targeted to minority voters in an effort to diminish their importance in the election. I mention that because that happened not 50 years ago, but happened just a few years ago.

Congress renewed the Voting Rights Act by rather large votes, 93- 0 in the United States Senate, 390-33 in the House of Representatives. There's clear intent of Congress to continue to protect voters in this country.

CARDIN: In the Northwest Austin Municipal Utility District No. 1 v. Holder, one justice on the court in dictum challenged Congress's authority to extend this civil rights case. Now, I say that knowing your view about giving due deference to Congress, particularly as it relates to expanding and extending civil rights protections.

So my question to you is, tell me a little bit about your passion for protecting the right of vote, to make sure that the laws are enforced as Congress intended to guarantee to every American the right to participate at the voting place.

SOTOMAYOR: When we speak about my passion, I don't think that the issue of guaranteeing each citizen the right to vote is unique to me or that it's different among any senator or among any group of people who are Americans. It is a fundamental right. And it is one that you've recognized, Congress has addressed for decades and has done an amazing job in passing a wide variety of statutes in an effort to protect that right.

The question that a court would face in any individual situation is whether an act of Congress conflicts with some right of either the state or an individual with respect to the issue of voting. There could be other challenges raised on a wide variety of different bases, but each case would present its own unique circumstance.

There is one case involving the Voting Rights Act where I address the issue of the right to vote. And in that case, I issued a dissent on an en banc ruling by my court. For the public who may not understand what en banc ruling means, when the whole court is considering an issue. In that case, if it wasn't 13, it may have been 12 members of the court, or a complement of 13 judges, but I right now can't remember if we were a full complement at the time of considering an issue.

The majority upheld a state regulation barring a group of people from voting. I dissented on a very short opinion, one paragraph opinion, saying, "These are the words of Congress in the statute it passed, and the words are that no state may impose a" -- and I'm paraphrasing it now. I'm not trying to read the statute, but no condition or restriction on voting that denies or abridges the right to vote on the basis of race.

I noted that, given the procedural posture of that case, that the plaintiff had alleged that that's exactly what the state was doing. And I said, "That's the allegation on the complaint." That's what a judge has to accept on the face of the complaint. We've got to give him a chance to prove that, and that to me was the end of the story.

To the extent that the majority believed that -- and there was a lot of discussion among the variety of different opinions in the case as to whether this individual could or could not prove his allegation, and there was a suggestion by both sides that he might never be able to do it -- my point was a legal one. These are Congress' words. We have to take them at their word.

And if there's an end result of this process that we don't like, then we have to leave that to Congress to address that issue. We can't fix it by ruling against what I viewed as the expressed words of Congress.

CARDIN: Let me use your quote there because I thought it was particularly appropriate. You said, "I trust that Congress would prefer to make needed changes itself rather than to have the courts to do so for it." And I think the members of this committee would -- would agree with you. And as you responded to Senator Grassley in regards to the Riverkeeper case, you said you give deference to Congress. I think we all share that.

One of my concerns is that we are seeing judicial activism in restricting the clear intent of Congress in moving forward on fundamental protections. And let -- let me move, if I might, to the environment, which is an area that is of great concern to all of us.

In the past 50 years, Congress has passed important environmental laws, including the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, the Endangered Species Act, the Safe Drinking Water Act and Superfund. Despite the progress we've made over the years, it's important that we keep advancing the protections in our environment.

During your testimony yesterday, you made it clear that you understand that senators and members of Congress elected by the people are the ones making policy by passing laws. And you also made it clear that judges apply the laws enacted and that they should do so or at least they should do so with deference to the intent of Congress.

Yet we've seen in recent decisions of the Supreme Court like the Solid Waste Agency of Northern Cook County v. U.S. Corps of Engineers and Rapanos v. United States that they have forced the EPA to drop more than 500 cases against alleged polluters. These decisions have impact.

And it -- it -- it is clear to many of us that they reject longstanding legal interpretations in the federal Clean Water Act -- was done by the Supreme Court in ignoring the science that served as the foundations for the laws passed by Congress and the intent of Congress to protect American people by providing them with clean water, clean air and a healthy environment. As the senator from Maryland I'm particularly concerned about that as it relates to the efforts that we're making on the Chesapeake Bay.

Now, I understand that these decisions are now precedent and they are binding and that it may very well require the Congress to pass laws further clarifying what we meant to say so that we can try to get us back on track. I understand that. But I would like you to comment and I hope reinforce the point that you have said that in reaching decisions that come to the bench, whether they're environmental laws or other laws that protect our society, you will follow the intent of Congress and will not try to supplant individual judgment that would restrict the protections that Congress has passed for our community.

SOTOMAYOR: Believe my case -- my cases, my entire record shows that I look at the acts of Congress, as I think the Supreme Court does, with deference because that is the bedrock of our constitutional system, which is that each branch has different set of constitutional powers, that deference must be given to the rights of each branch in each situation that is exercising its powers. And to the extent that the court has a role -- because it does have a role -- to ensuring that the Constitution is followed, it attempts to do that. When I say attempt -- but it always attempts it with a recognition of the deference it owes to the elected branches in terms of setting policy and making law.

CARDIN: Thank you for that -- for that response.

Let me turn, if I might, to our personal backgrounds. There's been a lot of discussion here about what each of us bring to our position in public life.

CARDIN: Progress for women in this country has not come easily or quickly. At one time, women could not vote, could not serve on juries, could not hold property.

I sit here today wanting to feel confident that the Supreme Court and its justices who make key decisions on women's rights in society will act to ensure continued progress for equality with men and women.

Now, we all agree that, in rendering an individual decision, a gender or ethnic background should not affect your judgment. There is an importance to diversity which I think we've all talked about. Each of us bring our life experiences to our job.

Your life experience at Princeton, I think, serves as an example. You attended the school that F. Scott Fitzgerald, 90 years, called the "pleasantest country club in America," with very restrictive policies as to who could attend Princeton University. By 1972, your freshman class, it was a different place, but still far from where it should be.

And I admire your efforts to change that at Princeton. And you were actively involved in improving diversity of that school. And Princeton is a better place today because of your efforts.

I think of my own experiences at law school, University of Maryland Law School, which denied admission to Thurgood Marshall and, in my class, had very few women. Times have changed.

Justice Ginsburg said, referring to the importance of women on the bench, says, "I think presence of women on the bench made it possible for the courts to appreciate earlier than they might otherwise that sexual harassment belongs under Title VII."

So on behalf of myself, on behalf of my daughter and two granddaughters, I want to hear from you the importance of different voices in our schools, in our Congress, and then on the Supreme Court of the United States as to how having diversity, the importance of diversity, your views as to what steps are appropriate for government to take in helping to improve diversity.

SOTOMAYOR: Your comment about your daughter and granddaughter makes me remember a letter I received when I was being nominated to the circuit court. It was from a woman who said she had 19 daughters and grandchildren and how much pride she took in knowing that a woman could serve on a court like the Second Circuit. And I realized then how important the diversity of the bench is to making people feel and understand the great opportunity America provides to all its citizens. And that has value; that's clear.

With respect to the issue of the question of what role diversity serves in the society, it hearkens back almost directly to your previous question. I've been overusing that word, "hearken," sorry.

It almost comes around to your earlier question, which is that issue is one that starts with the legislative branches and the government, the executive body, and employers who look at their workforce, that look at the opportunities in society, and make policy decisions about what promotes that equal opportunity in the first instance.

SOTOMAYOR: The court then looks at what they have done and determines whether that action is constitutional or not. And with respect, that leads to the education field, in a very recent set of cases, the Supreme Court looked at the role of diversity in educational decisions as to which students they would admit, and the Court upheld the University of Michigan's Law School admissions policy which -- because the school believed that it needed to promote as wide as body of and diverse a body of students to ensure that life perspectives, that the experience of students would be as fulsome as they wished.

And they used race there as one of many factors but not one that compelled individual choices of students. The Court upheld that. And Justice O'Connor, in the opinion she wrote -- authored, expressed the hope that, in 25 years, race wouldn't even need to be considered.

In a separate case, the University of Michigan's undergraduate admissions policy, the Court struck that down. And it struck to down because it viewed the use of race as a form of impermissible quota because it wasn't based on an individual assessment of the people applying but as an impermissible violation of the equal protection clause and of the law.

These situations are always looked at individually and, as I said, in the context of the choices that Congress, the executive branch, an employer is making and the interest that it's asserting and the remedy that it's creating to address the interest it's trying to protect. All of that is an individual question for the courts.

CARDIN: Well, and you need to look at all the facts in reaching those decisions, which you have stressed over and over again. I want to a justice who will continue to most of the court forward in protecting those important civil rights. I thought a justice who will fight for people like Lawrence King who, at the age of 15, was shot in a school because he was openly gay.

I want a justice who will fight for women like a 28-year-old Californian who was gang raped by four people because she was a lesbian. And I want a justice who will fight for people like James Byrd (ph) who was beaten and dragged by a truck for two miles because he was black.

So we need to continue that -- that focus. And you talked about race. And I think about the Gann (ph) case that you ruled in, a six- year-old back child who was removed from school and was treated rather harshly with racial harassment. And in your dissent, you stated that the treatment this lone black child encountered during his pre-time in Cooks Hills first grade to have been not merely arguable, unusual, indisputable discretion but unprecedented and contrary to the school's established policy.

Justice Blackmun spoke in order to get beyond race, we first must take race and account of race. And if you ignore race completely, aren't you ignoring facts that are important in a particular case?

SOTOMAYOR: Well, it depends on the context of the case that you're looking at. In the Gann (ph), for example, there were a variety of different challenges brought by the plaintiff to the conduct that was alleged the school had engaged in. I joined the majority in dismissing some of the claims as not consistent with law.

But in that case, there was a disparate treatment element, and I pointed out to the set of facts that showed or presented evidence of that disparate treatment. That's the quote that you were reading from, that this was a sole child who was treated completely different than other children of -- of a different race in the services that he was provided with and in the opportunities he was given to remedy or to receive remedial help.

That is obviously different, because what you're looking at is the law as it exists and the promise that the law makes to every citizen of equal treatment in that situation.

CARDIN: Well, and I agree. I think you need to take a look at all the facts and the circumstances. And if you ignore race, you're ignoring an important point of the facts.

Let me talk a little bit about privacy, if I might. Justice Brandeis described privacy as the right to be left alone. In other words, if we must restrict this right, it must be minimal and protections must occur before any such action occurs.

The Supreme Court has advanced rights of privacy in the Meyer case, the Loving case, which established the fundamental rights of persons to raise families and to marry whom they please, regardless of race, the Lawrence case, that states could not criminalize homosexual conduct, Griswold, that allowed for family planning as a fundamental right, and, of course, Roe v. Wade, which gave women the right to control their own bodies.

I just would like to get your assessment of the role the court faces on privacy issues in the 21st century, recognizing that our Constitution was written in the 18th century and the challenges today are far different than they were when the Constitution was written as it relates to privacy. The technologies are different today, and the circumstances of life are different.

How do you see privacy challenges being confronted in the 21st century in our Constitution and in the courts?

SOTOMAYOR: The right to privacy has been recognized, as you know, in a wide variety of circumstances for more than probably 90 years now, close to 100. That is a part of the court's precedents.

In applying the immutable principles of the Constitution, the liberty provision of the due process clause and recognizing that that provides a right to privacy in a variety of different settings, you've mentioned that line of cases, and there are many others in which the court has recognized that as a right.

In terms of the coming century, it's guided by those cases, because those cases provide the court's precedents and framework -- and with other cases -- to look at how we will consider a new challenge to a new law or to a new situation.

That's what precedents do. They provide a framework. The Constitution remains the same; society changes. The situations that brings before courts change, but the principles are in -- are the words of the Constitution, guided by how precedent gives or has applied those principles to each situation, and then you take that and you look at the new situation.

CARDIN: In the time that I have remaining, I'd like to talk about pro bono. I enjoyed our conversation when we -- when you were in my office talking about your commitment to pro bono. I think, as attorneys, we all have a special responsibility for equal justice, and that requires equal access.

It's not just those who can afford a lawyer. The legal aid lawyers per capita are about 61 per 6,800. For private attorneys, it's one per 525. This is not equal justice under the law as promised by the etching on the entrance to the United States Supreme Court.

Now, it makes a difference if you have a lawyer. If you have a lawyer, you're more likely to be able to save your home, to get the health care that you need, to be able to deal with consumer problems.

And I had the honor of chairing the Maryland Legal Services Corporation. I chaired a commission that looked at legal services in Maryland. I'm proud of the fact that we helped establish that University of Maryland Law School and University of Baltimore Law School, required clinical experiences for our law students so they not only get the experience of handling a case but understand the need to deal with people who otherwise could not afford an attorney.

Congress needs to do more in this area. There is no question about that. And I'm hopeful that we will re-authorize the Legal Service Act and provide additional resources.

But I would like to get your view as to what is the individual responsibility of a lawyer for equal justice under the law, including pro bono, and how you see the role of the courts in helping to establish the efforts among the legal community to carry out our responsibility.

SOTOMAYOR: I know that there's been a lot of attention paid to one speech and its variants that I've given. If you look at the body of my speeches, public service and pro bono work is probably the main topic I speak at -- I speak about.

Virtually every graduation speech I give to law students, speeches I've given to new immigrants being sworn in as citizens, to community groups of all type is the importance of participation in bettering the conditions of our society, active involvement in our communities.

And it doesn't have to be active involvement in politics. I tell people that. Just get involved in your community. Work on your school boards. Work in your churches. Work in your community to improve it.

The issue of public service is a requirement under the code of the American Bar Association. Virtually every state has a requirement that lawyers participate in public service in some way. I've given multiple speeches in which I've talked to law school bodies and said, "Make sure your students don't leave your school without understanding the critical importance of public service in what they do as lawyers."

In that we are in full agreement, Senator. To me, that's a core responsibility of lawyering.

Our Founding Fathers, they became what they became, our Founding Fathers, because of their fundamental belief of involvement in their society and public service, and it's a -- to me a spirit that is the charge of the legal profession, because that's what we do. We help people, in a different way than doctors do, but helping people receive justice under the law is a critical importance of our work.

CARDIN: Well, very, very well said. I look forward to working between Congress and the courts and advancing a strategy.

Thank you, Mr. Chairman.

LEAHY: Thank you very much, Senator Cardin.

And Senator Coburn?

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