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Sen. Whitehouse Questions Judge Sotomayor at Supreme Court Nomination Hearings

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Wednesday, July 15, 2009; 11:25 AM

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WHITEHOUSE: Thank you, Mr. Chairman.

And welcome again, your honor. I have to say, before I get into the questions that I have for you, that I, like many, many, many Americans, feel enormous pride that you are here today.

And I was talking with some friends in Providence when I was home about your nomination, and I said it actually gives me goosebumps to think about the path that has brought you here today and, more importantly, to think about -- because it's not about you -- more important to think what that means about America, that path.

And they said, "No, no, no, no, you can't say 'goosebumps.' You have to say 'piel de gallina.'" And so I promised them that I would, so I'm keeping that promise right now.

WHITEHOUSE: But I want to tell you that I think in the way you've handled yourself in this committee so far you have done nothing but to vindicate and reinforce the pride that so many people feel in you. And I hope that as this process continues -- I know these days are long and it can be a bit of an ordeal -- I hope that you very much feel buoyed and sustained by that pride and that optimism and that confidence that people across this country feel for you and that so many people in this room feel for you. So I wanted to say that.

I also wanted to fulfill another promise, which was one I made to you, that in my opening statement I said I would ask you to make a simple pledge. And that simple pledge is that you will decide cases on the law and the facts before you, that you will respect the role of Congress as representatives of the American people, that you will not prejudge any case but will listen to every party that comes before you and that you will respect precedent and limit yourself to the issues that the court must decide.

May I ask you to make that pledge?

SOTOMAYOR: I can. That's the pledge I would take if I was -- that I took as a district court judge, as a circuit court judge. And if I am honored to be confirmed by this body, that I would take as a Supreme Court justice, yes.

WHITEHOUSE: Thank you. Some of my colleagues have raised questions about your role at the Puerto Rican Legal Defense and Education Fund many years ago before you left that organization to become a federal trial judge in 1992, I guess it was.

I just wanted to clarify. That was clearly a part of your history and your package that came to the Senate at the time of those confirmations, when you were confirmed both in 1992 and 1997. So this is nothing new to the Senate. Is that correct?

SOTOMAYOR: That's correct.

WHITEHOUSE: And in terms of the way that the Puerto Rican Legal Defense and Education Fund operated, you were a member of the board. Is that correct?

SOTOMAYOR: I was.

WHITEHOUSE: Did the attorneys for the Puerto Rican Legal Defense and Education Fund make it a practice to vet their legal filings with the board first? Did the board approve individual briefs and arguments that were made by attorneys in the -- for the organization?

SOTOMAYOR: No, because most of us on the board didn't have civil rights experience. I had actually when I was a prosecutor in -- in private practice, that wasn't my specialty of law. Even if they tried to show it to me, I don't know that I could have made a legal judgment, even if I tried. That was not our function.

WHITEHOUSE: And I think that's customary in charitable organizations for the board not to sign off specifically on briefs and other legal filings that the attorneys make. Certainly, in the years I've spent on the boards of charitable organizations never been something presented to me. So I appreciate that.

And in 1992 and in 1997 when the Senate was, again, fully aware of all that, was there, to your recollection, the objection made in those confirmations?

SOTOMAYOR: I don't believe any question was asked about my service on the Puerto Rican Legal Defense and Education Fund.

SOTOMAYOR: It promotes the civil rights of its community.

WHITEHOUSE: Let me turn to some more general questions, if I may. And one has to do with the role of the jury, not just in trials. Obviously, you're eminently familiar with the role of juries in trials.

I think you'll be the only member of the United States Supreme Court, if you are confirmed, to actually have had federal trial judge experience, which I think is a valuable attribute, but I'm not thinking so much about the role of the jury in the courtroom as I am about the role of the jury in the American system of government.

When the Constitution was set up, as you know so well, the founders made great efforts to disaggregate power, to create checks and balances, and the matrix of separated powers that they created has served us very, very well.

In the course of that or as a part of that, the founders also revealed some very strongly felt concerns about the hazards of both unchecked power and of the vulnerability of the legislative and executive branches to either corruption or to being consumed and overwhelmed by passing passions.

And I'd love to hear your thoughts on the importance of the jury in that American system of government and, if you could, with particular reference to the concerns of the founders about the vulnerabilities of the elected branches.

SOTOMAYOR: Like you, I am -- and perhaps because I was a state prosecutor and I have been a trial judge, and so I've had very extensive experience with jury trials in the American criminal law context. I have had less in the civil law context as a private practitioner, but much more as a district court judge.

I can understand why our founding fathers believed in the system of juries. I have found in my experience with juries that virtually every juror I have ever dealt with, after having experienced the process, came away heartened, more deeply committed to the fundamental importance of their role as citizens in that process.

Every juror I ever dealt with showed great attention to what was going on, took their responsibilities very seriously.

SOTOMAYOR: I had a juror who was in the middle of deliberations on her way to my courtroom -- not on her way to my courtroom -- on her way home from court on the previous day, broke her leg, was in the hospital the entire night, came back the next morning on time, in a wheelchair, with a cast that went up to her hip.

What a testament both to that woman and to the importance of jury service to our citizens. I was very active in ensuring that her service was recognized by our court.

It has a central role. Its importance to remember is that it hasn't been fully incorporated against the states. Many states limit jury trials in different ways.

And so the question of in -- what cases require a jury trial and what don't is still somewhat within the discretion of states. But it is a very important part of a sense of protection for defendants accused in criminal cases, and one that I personally value from my experience with it.

WHITEHOUSE: And does -- do -- does the Founder's concern about the potential vulnerabilities, or liabilities, about the elected branch illuminate the importance of the jury system?

SOTOMAYOR: Senator, I -- as I see the jury system, I don't know exactly -- I don't actually -- and I've read the federal or state person. I've read other historical accounts.

The jury system was -- I thought the basic premise of it was to ensure that a person subject to criminal liability would have a group of his or her peers pass judgment on whether that individual had violated the law or not. To the extent that the Constitution looked to the courts to determine whether a particular act was or was not constitutional, it seems to me that that was a different function than what the jury was intended to serve. The jury, as I understood it, was to ensure that a person's guilt or innocence was determined by a group of peers.

To the extent that that has a limit on the elective branches, it's to ensure that someone is prosecuted under the law and that the law is applied to them in the way that the law is written and intended.

WHITEHOUSE: And where the jury requirement applies to civil trials, the argument would be the same, correct?

SOTOMAYOR: Yes.

WHITEHOUSE: Again on the question of the American system of government, how would you characterize the Founder's view of any exercises of unilateral or unchecked power by any of the three branches of government in the overall scheme?

SOTOMAYOR: The Constitution, by its terms, sets forth the powers and limits of each branch of government. And so, to the extent that there are limits recognized in the Constitution, that is clearly what the Constitution intends. The Bill of Rights, the Amendments, set forth there are often viewed as limits on government action. And so it's a question always of looking at what the Constitution says and how -- what kind of scope it gives for a government action at issue.

WHITEHOUSE: Would you feel, in light of all of the attention, very, very careful and thoroughly thought out attention that the Constitution gives to establishing and enforcing a whole variety of different checks and balances among the different powers of government, that a judge who is presented with an argument that a particular branch of government should exercise or have the authority to exercise unilateral, unchecked power in a particular area should approach that argument with a degree of heightened caution or attention?

SOTOMAYOR: The best framework that has been set out on this question of a unilateral act by one branch or another -- but usually it's a -- the challenge is raised when the executive is doing something, because the executive executes the law.

WHITEHOUSE: Yes.

SOTOMAYOR: It takes the action typically. The best description of how to approach those questions was done by Justice Jackson in his concurring opinion in the Youngstown case. And that opinion laid out a framework that generally is applied to all questions of executive action, which is that you have to look at the powers of each branch together, you have to start with, what has Congress said, expressed or implicitly?

And if it's authorized to do something to let the president do something, then the president's acting at the height of his powers. If Congress has implicitly prohibited -- expressly or implicitly prohibited something, then the president's acting at the lowest ebb of his powers.

There's a zone of twilight, which is the zone in between, which is, has Congress said something or not said something?

In all of the situations, once you've looked at what Congress has done or not done, you then are directed to look at what the president's powers may be under the Constitution minus whatever powers Congress has in that area.

So the whole exercise is really, in terms of Congress and the executive, an exercise of the two working together. And, in fact, that's the basic structure of our system of government. That's why the Congress makes the law. The president can veto them, but he can't make them.

He can regulate, if Congress gives him the authority to do so and within other delegated authorities or -- or -- or -- I shouldn't use the word "delegated," because it has a legal meaning. But the point is that that question is always looked at in light of what Congress has said on the issue and in light of Congress's power, as specified in the Constitution.

WHITEHOUSE: Let me change to a more law enforcement-oriented topic. I appreciate, first of all, very much your service in District Attorney Morgenthau's office. It is an office that prosecutors around the country look at with great pride and a sense of its long tradition and of the very great capability of the prosecutors who serve in it. It's a very proud office, and I'm delighted that you served there, and I think it says a great deal about you that, coming out of law school and college with the stellar academic record that you had and an entire world of opportunities open to you, you chose that rather poorly paid office.

And since you've met 89 of us, I doubt you remember all of our conversations, but when you and I had the chance to meet, we compared who had the worst office as a new prosecutor. And I think you won.

And so it was a very important moment for a, at that point, quite new lawyer to make a very significant statement about who you were and what your purpose was. And so I very much appreciate that you made that choice, and I think prosecutors, like my colleague, Senator Klobuchar, and many others around this country, Senator -- our chairman, Senator Leahy, have made that choice over the years, and it's one that I think merits a salute.

One of the things that prosecutors have to deal with all the time is search and seizure and warrants. And my question has to do with the warrant requirement under the Constitution.

I see the Constitution as being changeless, timeless and immutable. What changes is society, as you pointed out in your testimony earlier, and technology. And so new questions arise.

And I'd be interested in your reaction to the difference between the experience of society and the technology of society when the founders set up the warrant requirement originally and today.

When the founders set up the warrant requirement originally, when the sheriff or somebody went to seize property to bring it in as evidence for a trial or to condemn it as contraband, that was sort of the end of it. If it was evidence, when it was done, it was returned, and it went back. Particularly, papers were returned, and that was the end of it.

Then came the Xerox machine. And now the government could make copies of what they took. And it was returned, as always, just as the founders had intended, but copies were sprinkled throughout government files, very often ones that ended up in archives, buildings in dusty boxes that would have taken enormous effort to locate, but nevertheless they remained available.

And nowadays, with electronic databases and electronic search functions, matters that once would have been returned to the individual and that envelope of privacy that was opened by the warrant would have been closed again are now potentially eternally available to government, eternally searchable.

And it raises some very interesting privacy questions that we will have to face in this Congress and in this Senate as we begin to take on issues particularly of cybersecurity, cyber-attacks, cyber- terrorism, and take advantage of what technology we can bring to bear in the continued struggle against terrorist extremists.

WHITEHOUSE: So I'd be interested in your thoughts on how the Constitution, which is unchanged through all of that, what analysis you would go through to see whether the change from a quickly opening and closing privacy envelope to one that is now essentially open season forever. How would you go about analyzing that as a judge, given that the Constitution is a fixed document?

SOTOMAYOR: I think, as I understand your question, Senator, that there are two issues, if not more, but the two that I note as more starkly for me in your question is the one of the search and seizure and the Fourth Amendment as it applies to taking evidence from an individual and use it against him or her in a current proceeding.

WHITEHOUSE: Yes, which is a constant. That stayed the same.

SOTOMAYOR: That (inaudible) the structure.

In -- not so long ago, the Supreme Court dealt with a technologically new situation, which was whether an individual had a right to expect the warrant to be gotten before law enforcement flew over his or -- I think it was a "his" in that case -- his home and took readings of the thermal energy emanating from his home, and then going in to see if the person was growing marijuana.

WHITEHOUSE: The (inaudible) case.

SOTOMAYOR: Exactly. And in that case, the reason for that case is that, apparently -- I'm not an expert in marijuana growing -- but apparently, when you're growing marijuana, there's a -- certain heating lights that you need, at least that's what the case was describing, and it generates this enormous amount of heat that wouldn't generally come from a home unless you were doing something like this.

And what the court did there, in an opinion by Justice Scalia, I believe it was, is it looked at the embedded questions of privacy in the home that underlied the unreasonable search and seizure. And the court there, as I mentioned, determined that acts taken in the privacy of one's home would commonly not be expected to be intruded upon unless the police secured a warrant.

And to the extent that the law had generally recognized that, if you worked actively to keep people out of your home -- you locked your windows, you locked your doors, you didn't let people walk by and peek through, you didn't stand at your front door and show people what you were doing, that you were exhibiting your expectation of privacy. And to the extent that new technology had developed that you wouldn't expect to intrude on that privacy, then you were protected by the warrant clause. And the police had an obligation to go talk to a magistrate and explain to them what their evidence was and let the magistrate -- I use the magistrate in that more global sense. It would be a judge, but in the -- you would let a judge decide whether there was probable cause to issue the warrant, reasonable suspicion, probable cause -- probable cause to issue the warrant.

That's how the courts address the unreasonable -- or have addressed, the Supreme Court has, the unreasonable search and seizure and balance the new technology with the expectations of privacy that are recognized in the Fourth Amendment.

SOTOMAYOR: You asked, I thought, a separate question which, in my mind, is different than the right to privacy with respect to personal information that could be otherwise available to the public as a byproduct of a criminal action or as a byproduct of your participation in some regulated activity of the government.

There are situations in which, if your industry is regulated, you're going to make disclosures to the government. And then the question becomes, how much and what circumstances can then government make copies, put it in an electronic database, or use it in another situation?

So much of that gets controlled by the issues you're saying Congress is thinking about, which is, what are people's rights of privacy in their personal information? Should we as Congress, as a matter of policy, regulate that use?

The courts itself have been commanded by Congress to look at certain privacy information of individuals and guard it from public disclosure in the databases you're talking about.

So we've been told, "Don't go using somebody's Social Security number and putting it in a database." That's a part of a public document, but we've been told, "Don't do that," and there's a reason for that, because there is not only the issues of identity theft, but other harms that come to people from that situation.

So that broader question, as with many, is not one that one could talk about a philosophy about. As a judge, you have to look at the situation at issue, think about what Congress has said about that in the laws, and then consider what -- what the Constitution may or may not say on that question, depending on the nature of the claim before the court.

WHITEHOUSE: Your honor, I thank you. I wish you well.

SOTOMAYOR: Thank you.

WHITEHOUSE: And I congratulate you on your appearance before this committee so far.

SOTOMAYOR: Thank you, sir.

LEAHY: Senator Whitehouse, thank you. I appreciate the comments getting into the area of criminal law. Of course, Senator Whitehouse has served as both a U.S. attorney and as an attorney general and brings a great depth of knowledge, as do several on both the Republican and Democratic side to -- to this committee.

Judge, we're -- and I also appreciate you taking less than your time. I hope maybe you'll be setting a standard as we go forward. We will take a 15-minute break.


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