Sen. Coburn Questions Judge Sotomayor at Supreme Court Nomination Hearings

Wednesday, July 15, 2009 10:45 AM

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COBURN: Thank you, Mr. Chairman. I'd ask unanimous consent to put an article from the newspaper this morning, the Washington Times.

LEAHY: Without objection, it'll be placed in the record.

COBURN: Welcome again.

First of all, let me apologize to you because I was not able to hear, although, I got to read some of your testimony yesterday. We had a schedule that says we must finish health care within a certain time. Whether we get it right or wrong, we've got to get it done in a certain time. And so I was involved with that, and I apologize.

Number two is I apologize to you for the outburst that occurred in this committee. Anybody who values life like I do and is pro-life recognizes that the way you change minds is not yell at people, is you love them. And you care about their concerns and you create a level of understanding, not condemnation.

And so, for that, I apologize. I admire your composure, and I thank the chairman and the ranking member for the way they handled that as well.

I want to spend a few moments with you, but I kind of want to change the tone here a little bit in terms of what we talk about. A lot of Americans are watching this hearing. And when I get together with a couple of doctors, they don't understand half of what I say. And when two lawyers talk, most of us who aren't lawyers, like I'm not, have trouble following.

So I want us to use words that the American people can truly understand as I both ask you questions and as you answer them. I will try to do that, and I hope that you will as well because I think it benefits our country to do that.

You've been asked a lot of questions about abortion. And you've said that Roe v. Wade is settled law. Where are we today? What is the settled law in America about abortion?

SOTOMAYOR: I can speak to what the court has set in its precedent. In Planned Parenthood v. Casey, the court reaffirmed the core holding of Roe v. Wade that a woman has a constitutional right to terminate her pregnancy in certain circumstances. In Casey, the court announced that, in reviewing state regulations that may apply to that right that the court considers whether that regulation has an undue burden on the woman's constitutional right.

That is my understanding of what the state of the law is.

COBURN: Well, let me give you a couple of cases. Let's say I'm 38 weeks pregnant and we discover a small spina bifida sack on the lower sacrum, the lower part of the back on my baby. And I feel like I just can't handle a child with that. Would it be legal in this country to terminate that child's life?

SOTOMAYOR: I can't answer that question in the abstract because I would have to look at what the state of the state's law was on that question and what the state said with respect to that issue.

I can say that the question of the number of weeks that a woman is pregnant has been -- that approach to look at a woman's (inaudible) was changed by Casey. The question is: Is the state regulation regulating what a woman does an undue burden?

And so I can't answer your hypothetical because I can't look at it as an abstract without knowing what state laws exist on this issue or not. And even if I knew that, I probably couldn't opine because I'm sure that situation might well is rise before the court.

COBURN: OK. Well, does technology in terms of the advancement of technology, should it have any varying whatsoever on the way we look at Roe v. Wade? For example, published reports most recently, of the 21-week -- 21-week -- that's 142 days fetus alive and well now at nine months of age with no apparent complications because the technology has advanced so far that we can now save children who are born prematurely at that level.

Should that have any bearing as we look at the law?

SOTOMAYOR: The law has answered a different question. It's talked about the constitutional right of women...

COBURN: I understand.

SOTOMAYOR: ... in certain circumstances. And as I indicated, the issue becomes one of, what's the state regulation in any particular circumstance?

COBURN: I understand. But all I'm asking is, should it have any bearing?

SOTOMAYOR: I can't answer that in the abstract, because the question, as it would come before me, wouldn't be in the way that you form it as a -- as a citizen. It would come to me as a judge in the context of some action that someone's taking, whether if it's the state, the state, if it's a private citizen being controlled by the state challenging that action. Those issues are...

COBURN: But viability is a portion of a lot of that. And a lot of the decisions have been made based on viability. If we now have viability at 21 weeks, why would that not be something that should be considered as we look at the status of what can and cannot happen, in terms of this right to privacy that's been granted under Roe v. Wade in cases?

SOTOMAYOR: All I can say to you is what the court's done. And the standard that the court has applied -- what factors it may or may not look at within a particular factual situation -- can't be predicted in a way to say, yes, absolutely, that's going to be considered, no, this won't be considered.

COBURN: All I'm asking is whether it should.


COBURN: Should viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on so many people? And your answer is that you can't answer it?

SOTOMAYOR: I can't, because that's not a question that the court reaches out to answer. That's a question that gets created by a state regulation of some sort or an action by the state that may or may not, according to some claimant, place an undue burden on her. We don't make policy choices in the court. We look at the case before us with the interests that are argued by the parties, look at our precedent, and try to apply its principles to the arguments parties are raising.

COBURN: I'm reminded of one of your quotes that says you do make policy, and I won't continue that. I'm -- I'm concerned, and I think many others are. Does a state legislature have the right under the Constitution to determine what is death? Have we statutory defined in -- and we have in 50 states and most of the territories -- what is the definition of death? You -- you think that's within the realm of the Constitution that states can do that?

SOTOMAYOR: Depends on what they're applying that definition to, and so there are situations in which they might and situations where that definition would or would not have applicability to the dispute before the court. All state action is looked at within the context of what the state is attempting to do and what liabilities it's imposing.

COBURN: But you would not deny the fact that states do have the right to set up statutes that define, to give guidance to their citizen what constitutes death?

SOTOMAYOR: As I said, it depends on -- in what context they're attempting to do that.

COBURN: They're doing it so they limit the liability of others with regard to that decision, which would inherently be the right of the state legislature, as I read the Constitution. You may have a different response to that.

And -- which brings me back to technology again.

As recently as six months ago, we now record fetal heartbeats at 14 days post-conception. We record fetal brainwaves at 39 days post- conception. And I don't expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues is we have this schizophrenic rule of the law where we have defined death as the absence of those, but we refuse to define life as the presence of those.

And all of us are dependent at different levels on other people during all stages of our development from the very early in the womb, outside of the womb to the very late. And it concerns me that we are so inaccurate or -- inaccurate is an improper term -- inconsistent in terms of our application of the logic.

You said that Roe v. Wade is settled law yesterday. And I believe it's settled under the basis of the right to privacy, which has been there. So the -- the question I'd like to turn to next is in your ruling, the 2nd Circuit ruling on -- and I'm trying to remember the name of the case -- Maloney, the position was is that there's not an individual fundamental right to bear arms in this country. Is that -- is that a correct understanding of that?


COBURN: OK. Please educate me, if you would.

SOTOMAYOR: In the Supreme Court's decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal -- the federal government could take with respect to the possession of firearms. In that case we're talking about handguns.

The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean. To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.

Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.

COBURN: Through the 14th Amendment.

SOTOMAYOR: Through -- and others. But the -- generally. I shouldn't say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with -- for us was a very narrow one. We recognized that Heller held -- and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.

The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it's not, so it wasn't fundamental in that legal doctrine sense. That was the Court's holding.

COBURN: Did the Supreme Court say in Heller that it definitely was not? Or did they just fail to rule on it?

SOTOMAYOR: Well, they failed to rule on it. You're right.

COBURN: There's a...


COBURN: There's a very big difference there.


COBURN: OK. Let me continue with that. So I sit in Oklahoma in my home, and what we have today as law in the land as you see it is I do not have a fundamental incorporated right to bear arms, as you see the law today?

SOTOMAYOR: It's not how I see the law.

COBURN: Well, as you see the interpretation of the law today? In your opinion of what the law is today, is my statement a correct statement?

SOTOMAYOR: No, that's not my interpretation. I was applying both Supreme Court precedent deciding that question and Second Circuit precedent that had directly answered that question and said it's not incorporated. The issue of whether or not it should be is different question, and that is the question that the Supreme Court may take up.

In fact, in his -- in his opinion, Justice Scalia suggested it should. But it's not what I believe. It's what the law has said about it.

COBURN: So what does the law say today about the statement? Where do we stand today about my statement that I have -- I claim to have a fundamental, guaranteed, spelled-out right under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?

SOTOMAYOR: I can't answer the question of incorporation other than to refer to precedent.


SOTOMAYOR: Precedent says, as the Second Circuit interpreted the Supreme Court's precedent, that it's not -- it's not incorporated. It's also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting. And by that I mean, what the Court with look at is a state regulation of your right.


SOTOMAYOR: And then determine can the state do that or not. So even once you recognize a right, you're always considering what the state is doing to limit or expand that right and then decide is that OK constitutionally.

COBURN: You know, it's very interesting to me. I went back and read the history of debate on the 14th Amendment. For many of you who don't know, what generated much of the 14th Amendment was in reconstruction. Southern states were taken away the right to bear arms by freedmen -- recently freed slaves. And much of the discussion in the Congress was to restore that right of the Second Amendment through the 14th Amendment to restore an individual right that was guaranteed under the Constitution.

So one of the purposes for the 14th Amendment, the reason -- one of the reasons it came about is because those rights were being abridged in the Southern states post-Civil War.

COBURN: Let me move on.

In the Constitution, we have the right to bear arms. Whether it's incorporated or not, it's stated there. I'm having trouble understanding how we got to a point where a right to privacy, which is not explicitly spelled out but is spelled out to some degree in the Fourth Amendment, which has settled law and is fixed, and something such as the Second Amendment, which is spelled out in the Constitution, is not settled law and settled fixed.

I don't want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that's spelled out in our Constitution and guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer?

I don't want to tie you down on any future decisions, but how'd we get there when we can read this book, and it says certain things, and those aren't guaranteed, but the things that it doesn't say are?

SOTOMAYOR: One of the frustrations with judges and their decisions by citizens is that -- and this was an earlier response to Senator Cornyn -- what we do is different than the conversation that the public has about what it wants the law to do.

We don't, judges, make law. What we do is, we get a particular set of facts presented to us. We look at what those facts are, what in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the Constitution, and see what it says, and attempt to take its words and its -- the principles and the precedents that have described those principles, and apply them to the facts before you.

In discussing the Second Amendment as it applies to the federal government, Justice Scalia noted that there have been long regulation by many states on a variety of different issues related to possession of guns. And he wasn't suggesting that all regulation was unconstitutional; he was holding in that case that D.C.'s particular regulation was illegal.

As you know, there are many states that prohibit felons from possessing guns. So does the federal government.

And so it's not that we make a broad policy choice and say, "This is what we want -- what judges do." What we look at is what other actors in the system are doing, what their interest in doing it is, and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix.

All of that is the court's function, so I can't explain it philosophically. I can only explain it by its setting and what -- what the function of judging is about.

COBURN: Thank you.

Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself -- personal self-defense? Do I have a right to personal self- defense?

SOTOMAYOR: I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. Is there a constitutional right to self-defense? And I can't think of one. I could be wrong, but I can't think of one.

SOTOMAYOR: Generally, as I understand, most criminal law statutes are passed by states. And I'm also trying to think if there's any federal law that includes a self-defense provision or not. I just can't.

What I was attempting to explain is that the issue of self- defense is usually defined in criminal statutes by the state's laws. And I would think, although I haven't studied the -- all of the state's laws, I'm intimately familiar with New York.

COBURN: But do you have an opinion, or can you give me your opinion, of whether or not in this country I personally, as an individual citizen, have a right to self-defense?

SOTOMAYOR: I -- as I said, I don't know.

COBURN: I'm talking about your...

SOTOMAYOR: I don't know if that legal question has been ever presented.

COBURN: I wasn't asking about the legal question. I'm asking about your personal opinion.

SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of...

COBURN: Well, I think that's what American people want to hear, Your Honor, is they want to know. Do they have a right to personal self-defense?

Do -- does the Second Amendment mean something under the 14th Amendment? Does what the Constitution -- how they take the Constitution, not how our bright legal minds but what they think is important, is it OK to defend yourself in your home if you're under attack?

In other words, the general theory is do I have that right? And I understand if you don't want to answer that because it might influence your position that you might have in a case, and that's a fine answer with me.

But I -- those are the kind of things people would like for us to answer and would like to know, not how you would rule or what you're going to rule, but -- and specifically what you think about, but just yes or no. Do we have that right? SOTOMAYOR: I know it's difficult to deal with someone as a -- like a judge who's so sort of -- whose thinking is so cornered by law.

COBURN: I know. It's hard.


COBURN: Kind of like a doctor. I can't quit using doctor terms.

SOTOMAYOR: Exactly. That's exactly right, but let me try to address what you're saying in the context that I can, OK, which is what I have experience with, all right, which is New York criminal law, because I was a former prosecutor. And I'm talking in very broad terms.

But, under New York law, if you're being threatened with eminent death or very serious injury, you can use force to repel that, and that would be legal. The question that would come up, and does come up before juries and judges, is how eminent is the threat. If the threat was in this room, "I'm going to come get you," and you go home and get -- or I go home.

I don't want to suggest I am, by the way. Please, I'm not -- I don't want anybody to misunderstand what I'm trying to say.


If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways to defend...

COBURN: You'll have lots of 'splainin' to do.

SOTOMAYOR: I'd be in a lot of trouble then.

But I couldn't do that under a definition of self-defense. And so, that's what I was trying to explain in terms of why, in looking at this as a judge, I'm thinking about how that question comes up and how the answer can differ so radically, given the hypothetical facts before you.

COBURN: Yes. You know...

SOTOMAYOR: Or not the...

COBURN: The problem is is we think -- we doctors think like doctors. Hard to get out of the doctor skin. Judges thing like judges. Lawyers think like lawyers.

And what American people want to see is inside and what your gut says. And part of that's why we're having this hearing.

I want to move to one other area.

You've been fairly critical of Justice Scalia's criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.

SOTOMAYOR: I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that's in treaty interpretation or in conflicts of law because it's a different system of law. I...

COBURN: But I accepted that. I said outside of those...


COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?

SOTOMAYOR: My speech and my record on this issue is I've never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.

COBURN: So you stand by the -- there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?

SOTOMAYOR: Unless the statute requires or directs you to look at foreign law. And some do, by the way. The answer is no. Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.

COBURN: Well, let me give you one of your quotes. To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding. What you would be asking American judges to do is to close their mind to good ideas. Nothing in the American legal system prevents us from considering those ideas.

We don't want judges to have closed minds just as much as we don't want judges to consider legislation and foreign law that's developed through bodies, elected bodies outside of this country, to influence what, either rightly so or wrongly so, against what the elected representatives and Constitution of this country says.

So would you kindly explain the difference that I perceive in both the statement versus the way you just answered?

SOTOMAYOR: There is none. If you look at my speech, you'll see that repeatedly I pointed out both that the American legal system that structured not to use foreign law. It repeatedly underscored that foreign law could not be used as a holding, as precedent, or to interpret the Constitution or the statutes.

SOTOMAYOR: What I pointed out to in that speech is that there's a public misunderstanding of the word "use." And what I was talking about, one doesn't use those things in the sense of coming to a legal conclusion in a case. What judges do -- and I cited Justice Ginsberg -- is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider.

But that's just thinking. It's an academic discussion when you're talking about -- thinking about ideas than it is how most people think about the citation of foreign law in a decision. They assume that a -- if -- if there's a citation to foreign law, that's driving the conclusion.

In my experience, when I've seen other judges cite to foreign law, they're not using it to drive the conclusion. They're using just to point something out about a comparison between American law or foreign law, but they're not using it in the sense of compelling a result.

COBURN: I'm not sure I agree with that on certain 8th Amendment and 14th Amendment cases.

Let me -- let me go to another area. I have just a short period of time.

Do you -- do you feel -- it's been said that we should worry about what other people think about us in terms of how we interpret our own law. And I'm paraphrasing not very well, I believe.

Is it important that we look good to people outside of this country, or is it more important that we have a jurisprudence that is defined correctly and followed correctly according to our Constitution and, whatever the results may be, it's our result rather than a politically correct result that might please other people in the world?

SOTOMAYOR: We don't render decisions to -- we don't render decisions to please the home crowd or any other crowd. I know that, because I've heard speeches by a number of justices, that in the past justices have indicated that the Supreme Court hasn't taken many treaty cases and that maybe it should think about doing that, because we're not participating in the discussion among countries on treaty provisions that are ambiguous.

That may be of consideration in -- to some justices. Some have expressed that as a consideration. My point is, you don't rule to please any crowd. You rule to get the law right under its terms.

COBURN: All right. Thank you.

Thank you, Mr. Chairman.

LEAHY: Thank you (OFF-MIKE) Coburn.

Senator Whitehouse?

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