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Sen. Klobuchar Questions Judge Sotomayor at Supreme Court Nomination Hearings

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Wednesday, July 15, 2009; 11:58 AM

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LEAHY: There's been an interest expressed by -- I was going to say by all of the senators, but most senators have left the hearing room, but don't think that doesn't mean that there's not going to be more questions, Judge, because there will be this round and another round.

And if it's the case of all of the questions having been asked, but not everybody has asked all of the questions, some will come back and ask them again.

What we're going to do -- we're going to have Senator Klobuchar and Senator Kaufman will ask questions. We'll then break for lunch. We'll then have Senator Specter and Senator Franken ask -- ask questions. And I'm saying this for the purposes also of those who have to -- have to schedule and plan.

We'll take -- we'll take a break for lunch after these two senators. We will then go into the traditional closed-door session, which will be held in the Senate Judiciary Committee room.

So, Senator Klobuchar, we seem to be heavy on prosecutors here. She is also a former prosecutor, and I yield to you.

KLOBUCHAR: Thank you very much, Mr. Chairman.

Good afternoon, Judge. Thank you again for all of your patience and your thoughtful answers.

I really -- everyone has been focusing on you sitting there. I've been focusing on how patient your mother has been through this whole thing, because I ran into her in the restroom just now, and I can tell you, she has a lot she'd like to say.

She has...

(LAUGHTER)

She has plenty of stories that she would like to share about you. I thought I might miss my questioning opportunity.

SOTOMAYOR: Senator, don't give her the chance.

KLOBUCHAR: But I was thinking she is much more...

LEAHY: The chairman is tempted, let me tell you.

KLOBUCHAR: She is much more patient than my mother has been, who has been waiting for this moment, for me to ask these questions, and leaving messages like, "How long do these guys have to go on?"

(LAUGHTER)

My favorite one, the recent one was, "I watched Senator Feinstein, and she was brilliant. What are you going to do?"

(LAUGHTER)

OK. So let's -- let's move on. I had some...

SOTOMAYOR: We should introduce our mothers, OK?

KLOBUCHAR: Yes, exactly. I have some quick questions here at the beginning just to follow up on some of the issues raised by my colleagues. Senator Coburn was asking you about the Heller case and Second Amendment issues. And I am -- personally agree with the Heller case.

But I remember that yesterday you said that, in Maloney, your Second Circuit case, that you were bound by precedent in your circuit, but that you would keep an open mind if the Supreme Court takes up the question of whether the Second Amendment can be incorporate against the states. Is that right?

SOTOMAYOR: Yes, Senator. I take every case, case by case, and my mind is always open, and I make no prejudgments as to conclusions.

KLOBUCHAR: OK. And then a follow-up question that Senator Whitehouse was asking you about the Puerto Rican legal defense fund. You were on that board.

And one just minor follow-up, but isn't it true that the ABA, that their code of conduct, the American Bar Association code of conduct bars Board members from engaging in litigation because of a lack of an actual lawyer-client relationship?

SOTOMAYOR: Yes.

KLOBUCHAR: OK.

And then, finally, just one point. We've heard so much about your speech in which you used the phrase, "Wise Latina," and I'm not going to go over that again.

But I did want to note, for the record, that you made a similar comment in another speech that you gave back in 1994, which you have provided not only in this proceeding but you also provided it when you came before the Senate for confirmation to the Circuit Court in 1997 and 1998. And no senator at that time -- do you remember them asking you about it or making any issue about it at the time?

SOTOMAYOR: No.

KLOBUCHAR: All right. Thank you.

Now we can move on to what I want to talk about, which is your work as a criminal prosecutor. And Senator Whitehouse initially asked a few questions about that.

You were quoted in the New York Times a while back about your time there, and you said, "The one thing I have found is that, if you come into the criminal justice system on a prosecutorial or defense level thinking that you can change the ills of society, you're going to be sorely disappointed. This is not where those kinds of changes have to be made." Do you want to elaborate on that a little bit?

SOTOMAYOR: By the time a criminal defendant ends up in court, they've been shaped by their lives. If you want to give people the best opportunity at success at life -- it's a message I deliver frequently to my community -- it has to be through early childhood forward. If you're waiting to do that once they're before a judge in court, your chances of success have diminished dramatically. And so one of my messages in many of my speeches to my community groups is pay attention to education. It's the value mom taught me, but her lesson had -- was not lost on me when I became a prosecutor.

And it's a lesson that I continue to promote because I so fervently believe it. The success of our communities depends on us improving the quality of our education of our children and of parental participation in ensuring that that happens in our society.

KLOBUCHAR: It also reminded me of that comment about -- some of the comments you've made about the limited role that -- a prosecutor has one role, and the limited role that a judge may have to respect that judicial role of not making the laws but interpreting the laws. Would that be a correct summary?

SOTOMAYOR: That is. In the statement I made to the newspaper article, I was focusing on a different part of that, but it is. As a prosecutor, my role was not to look at what I though the punishment should have been, because that was set in law. Sentences are set by Congress, which -- within statutory ranges.

And my role was to prosecute on behalf of the people of the State of New York. And that role is different than one that I would do if I were a defense attorney whose charge is to do something else, to ensure that a defendant is given a fair trial and that the government has proven its case beyond a reasonable doubt.

But we cannot remedy the ills of society in a courtroom. We can only apply the law to the facts before us.

KLOBUCHAR: Yes.

I think Justice Ginsburg made a similar comment in an article this weekend in an interview she did. And she was talking about -- this was her exact quote -- "The legislature can make the change, can facilitate the change, as laws like the Family Medical Leave Act do" -- she was talking about family arrangements -- "but it's not something a court can decree.

"A court can't tell the man," she said, "you've got to do more than carry out the garbage." I thought that was another way -- you don't have to comment on that -- but it was another way of making the same point.

The other thing that I wanted to focus on was just that role as a prosecutor, some of the difficult decisions you have to make about charging cases, for instance.

Sometimes you have to make a difficult decision to charge a family member, maybe in a drunk driving case, where someone kills their own child because they were drunk, or you have to make a decision when the court of public opinion has already decided someone's guilty, but you realize you don't have enough evidence to charge the case.

Do you want to talk about any -- maybe a specific example of that in your own career as a prosecutor or what goes into your thinking on charging?

SOTOMAYOR: I was influenced so greatly by a television show in igniting the passion that I had as being a prosecutor, and it was "Perry Mason."

For the young people behind all of you, they may not even know who Perry Mason was, but Perry Mason was one of the first lawyers portrayed on television. And his storyline is that, in all of the cases he tried -- except one -- he -- he proved his client innocent and got the actual murderer to confess.

In one of the episodes, at the end of the episode, Perry Mason with the character who played the prosecutor in the case were meeting up after the case. And Perry said to the prosecutor, "It must cause you some pain having expended all that effort in your case to have the charges dismissed." And the prosecutor looked up and, "No, my job as a prosecutor is to do justice, and justice is served when a guilty man is convicted and when an innocent man is not." And I thought to myself, that's quite amazing to be able to serve that role, to be given a job, as I was by Mr. Morgenthau, a job I'm eternally grateful to him for, in which I could do what justice required in an individual case.

And it was not without bounds, because I served a role for society, and that role was to ensure that the public safety and public interests were fully represented. But prosecutors in each individual case, at least in my experience, particularly under the tutelage of Mr. Morgenthau, was, we did what the law required within the bounds of understanding that our job was not to play to the home crowd, not to look for public approval, but to look at each case, in some respects like a judge does, individually.

And that meant in some cases bringing them the top charge. And I was actually known in my office for doing that often, but that's because I determined it was appropriate often.

SOTOMAYOR: But, periodically, I would look at the quality of evidence and say, "There's just not enough." I had one case with a individual who was charged with committing a larceny from a woman.

And his defense attorney came to me and said, "I never, ever do this, but this kid is innocent. Please look at his background. He's a kid with a disability. Talk to his teachers. Look at his life. Look at his record. Here it is." And he gave me the file.

And everything he said was absolutely true. This was a kid with not a blemish in his life. And he said, "Please look at this case more closely."

And I went and talked to the victim, and she -- I had not spoken to her when the case was indicted. This -- this was one of those cases that was transferred to me, and so it was my first time in talking to her. And I let her tell me the story, and it turned out she had never seen who took her pocketbook.

In that case, she saw a young man that the police had stopped in a subway station with a black jacket, and she thought she had seen a black jacket, and identified the young man as the one who had stolen her property. The young man, when he was stopped, didn't run away. He was just sitting there. Her property wasn't on him, and he had the background that he did.

And I looked at that case and took it to my supervisor and said, "I don't think we can prove this case." And my supervisor agreed, and we dismissed the charges.

And yet there are others that I prosecuted, very close cases, where I thought a jury should decide if someone was guilty, and I prosecuted those cases and more often than not got convictions. My point is that that is such a wonderful part of being a prosecutor.

That TV character said something that motivated my choices in life and something that holds true, and that's not to say, by the way -- and I firmly, firmly believe this -- defense attorneys serve a noble role, as well. All participants in this process do: judges, juries, prosecutors, and defense attorneys. We are all implementing the protections of the Constitution.

KLOBUCHAR: Thank you. That was very well said. And I want take that pragmatic experience that you've had, not just as a civil litigator, but also as a prosecutor, a lot has been said about whether judges' biases or their gender or their race should enter into decision-making.

And I actually thought that Senator Schumer did a good job of asking you questions where, in fact, you might have been sympathetic to a particular victim or to a particular plaintiff, but you ruled against them. And it actually gave me some answers to give to this baggage carrier that came up to me at the airport in Minneapolis. It was about a month ago, after you had just been announced, and he came up and he said, "Are you going to vote for that woman?"

And at first, I didn't even know what he was talking about. I said, "What?" He said, "Are you going to vote for that woman?" And I said, "Well, I think so, but I want to ask her some questions." And he said, "Well, aren't you worried that her emotions get in front of the law?"

And I thought if anyone heard what the cases -- the TWA case, where you decided against -- had to make a decision from some very sympathetic victims, the families of people who had been killed in a plane crash, and a host of other cases where you put the law in front of where your sympathies lie, I think that would have been a very good answer to him.

KLOBUCHAR: But another piece of this that's a very different part of it is the practical experiences that you've had, the pragmatic work that you've done. And I just wanted to go through some of the cases that you've had, the criminal cases that you've handled as a judge, and talk to you a little bit about how that pragmatic experience might be helpful on the courts, not leading you to always side with the prosecution, obviously, or -- but helping you to maybe ferret through the facts, as you've been known to be someone that really focused on the facts.

One of them is this United States v. Falso case, and this was a case where child pornography was found in a guy's home and on his computer. And you ruled that, although the police officers didn't have probable cause for the search warrant, that the evidence obtained in the search, the child pornography on the computer, should still be considered under the good faith exception to the exclusionary rule, because the judge had not been knowingly misled. And in other words, it was a mistake.

And I -- could you talk about that case and how perhaps having that kind of experience on the front line helped you to reach that decision? Because there was someone, I believe, that dissented in that case.

SOTOMAYOR: That case presented a very complicated question in Second Circuit law. There had been two cases addressing how much information a warrant had to contain and what kind in order for the police to search a defendant's home or -- I shouldn't say a home -- a computer to see if the computer contained images of child pornography.

The two cases -- I should say the two panels -- I wasn't a member of either of those panels -- had very extensive discussions about the implications of the cases because they involved the use of the Internet and how much information the police should or should not have before they look to get a warrant to search someone's computer, because the computer does provide people with freedom of speech, at least with respect to accessing information and reading it and thinking about it.

In the case before me, I was looking at it in the backdrop of the conflict that it appeared to contain in our case law, and what our case law said was important for a police officer to share with a judge and examine the facts before my case, looking at -- that's the information that the police have before them and considering whether, in light of existing Second Circuit law as it addressed this issue, had the police actually violated the Constitution, but -- I hope I can continue.

LEAHY: You can continue. That was not a comment from above, (inaudible). I have certain powers as chairman, but not that much.

SOTOMAYOR: (Inaudible) whether they should get a warrant or not. And I -- and one member of the court said "yes," and -- they had violated the Constitution. And I joined that part of the opinion because I determined, examining all of the facts of that case, that -- and the law, that that was the way the law -- the result the law required.

SOTOMAYOR: But then, I looked at what the principles underlying the unreasonable search and seizures are without a warrant and looked at the question of what was the doctrine that underlay there. And it -- what doctrine it underlays is that you don't want the police violating your constitutional rights without a good-faith basis, without probable cause.

And that's why you have a judge make that determination. That's why you require them to go to a judge. And so what I had to look at was whether we should make the police responsible for what would have been otherwise a judge's error, not their error.

They gave everything they had to the judge. And they said to the judge, "I don't know." Even if they thought they knew, that isn't what commands the warrant. It's the judge's review.

So I was the judge in the middle. One judge joined one part of my opinion; the other judge joined the other part of the opinion. And so I held that the acts violated the Constitution, but that the evidence could still be used, because the officers had -- there was in law a good-faith exception to the error in the warrant.

KLOBUCHAR: And I think you made a similar finding with different underlying facts in United States v. Santos (ph), when that involved a clerical error, and then that was a case where the underlying arrest warrant, where someone had been arrested -- they found cocaine -- and you allowed that in on the basis that the underlying arrest warrant, even though it was false -- there hadn't been a warrant out there, it'd been removed -- that that was a clerical error and you could still -- they could still use the cocaine.

SOTOMAYOR: Well, in fact, it's a holding the Supreme Court -- an issue the Supreme Court addressed just this term...

KLOBUCHAR: Exactly.

SOTOMAYOR: ... and came out -- well, I came out the way the Supreme Court did on that.

KLOBUCHAR: The hearing (ph) case.

SOTOMAYOR: Yes.

KLOBUCHAR: Yes, very good.

The -- the -- the piece about -- the case in the Supreme Court that's most interesting to me on terms of that issue we've been talking about, the practical knowledge and how that plays into decisions, is the Melendez-Diaz case, which you were not involved in. It was a U.S. Supreme Court case.

But this is just from my own practical work as a prosecutor. And it was a contested case with the Supreme Court. It doesn't divide ideologically. In fact, both Justice Breyer and Justice Roberts were in the dissent that Justice Kennedy wrote. It was a 5-4 decision.

And in that case, the issue was whether or not, with the confrontation clause, whether or not lab workers, crime lab workers should be called in to have to testify for drugs and what the test showed that was in the drugs and things like that.

And I just wondered what your reaction was to that case, how you would have analyzed it.

I -- I agree with the dissent in that case. I think that this could really -- it opens up 90 years of precedent. I think it's unreasonable for what we should expect of the criminal justice system. And there's been some pretty strong language in the dissent of the fear that this will create some very difficulties for prosecutors to follow through on their cases and get the evidence in.

SOTOMAYOR: It's always difficult to deal with people's disappointments about cases, particularly when they have personal experiences and have their own sense of the impact of a case.

I was a former prosecutor. And it's difficult proving cases as it is. Calling more witnesses adds some burdens to the process.

But, at the end, that case is a decided case. And so its holding now is its holding, and that's what guides the court in the future on similar issues to the extent there can be some.

SOTOMAYOR: As I said, I do recognize that there can be problems, as a former prosecutor, but that also can't compel a result. And all of those issues have to be looked at in the context of the court's evaluation of the case and the judge's view of what the law permits and doesn't permit.

KLOBUCHAR: I will say, I was -- there with an interesting story a few weeks ago about -- just that you've been tenacious about getting to the bottom of the facts when you have cases. And there were actually some experts that criticized you for spending too much time trying to figure out the facts, which I thought was a pretty unique criticism in the -- in the -- in the halls of criticisms.

And, in fact, you were defended by a former clerk to Clarence Thomas, who said that you are extraordinarily thorough, and a judge would ordinarily be praised for writing thorough opinions.

So when we are talking about Melendez-Diaz and some of those issues, it seems to me that, when you have looked at cases involving criminal justice or really any issue. Whether it's that Vermont ferry case that you did or other ones, you really did delve into the facts. You want to talk a little bit about why that's important?

SOTOMAYOR: The facts are the basis for the legal decision. A judge deals with a particular factual setting and applying the law to those facts. To the extent that there's any criticism that I do that on the court of appeals, we're not fact-finders, but we have to ensure that we understand the facts of the case to know what legal principle we're applying it to.

A judge's job, whether it's on the trial level, the circuit court, or even the Supreme Court, is not to create hypothetical cases and answer the hypothetical case. It's to answer the case that exists.

And so in my -- my view -- and I'm not suggesting any justice does this or doesn't do it -- but I do think that my work as a state prosecutor and a trial judge sensitizes me to understanding and approaching cases starting from the facts and then applying the law to those facts as they exist.

And -- and, again, I don't want to suggest that not all judges do that, but because I -- because of my background, perhaps like Justice Souter, who also has the reputation of carefully looking at the facts and applying the law to the facts, it may be that background that people are noticing and noticing where we picked up that habit. KLOBUCHAR: Very good. The -- and the report issued last week, the Transactional Records Access Clearinghouse -- I didn't know there was such a thing -- found that you sent more convicts to prison and handed out longer sentences than your colleagues did when you were a district court judge.

One statistic found that you handed out sentences greater than six months to 48 percent of convicted criminals in white-collar cases, while your colleagues gave out sentences of six months or more to just 36 percent. You were also twice as likely as your colleagues to send white-collar criminals to two years or more in prison.

I found the white-collar cases to be some of the most challenging cases that we had in our office when I was a prosecutor. They were challenging because there was oftentimes sympathy, and you don't maybe -- maybe this is dating myself -- 10 years ago, there used to be more sympathy, but there was sympathy to people who were pilots.

We had tax evasion cases with pilots or we had a judge that we prosecuted who had a half-day of his friends come and testify that he shouldn't go to jail, including the former Miss America

KLOBUCHAR: And so we -- I have found those cases to be difficult. Could you talk a little bit about your view of sentencing in general and sentencing of white-collar defendants in particular?

SOTOMAYOR: It should be remembered that, when I was a district court judge, the sentencing laws were different than they had become during my 12 years on the Court of Appeals. That -- and it makes me sound ancient, but back in the days when I was a district court judge, the sentencing guidelines were focused on the amount of a fraud and didn't consider the number of victims or the consequences on the number of victims of a crime.

Perhaps because of my prosecutorial background, perhaps because I considered the perspective of prosecutors who came before me, that the guidelines and their arguments -- that the guidelines didn't adequately consider the number of victims, and that that should be a factor, because someone who commits 100,000 $1 -- well, not $1 -- $1,000 crimes may be as culpable as the person who does a one-time act of $100,000, and depending on the victims and their impact on the victims. Those are factors that one should consider.

And so many of the white collar sentences that you were talking about were focused on looking at the guidelines and what the guidelines were addressing and ensuring that I was considering as the sentencing statutes require the court to do at all of the circumstances of the crime. I suspect that may drive one of the reasons why I may have given higher white-collar crime sentences than some of my colleagues. It's not to suggest they didn't listen to the argument, but they may have had a different perspective on it.

I should tell you that the -- that my circuit endorsed that factor as a consideration under the guidelines somewhat after I had started imposing sentences on this view, but they also agreed that this was a factor the courts could consider in fashioning a sentence.

(Inaudible) crime, and to the extent that you're protecting the interests of society, you take your cues from the statute Congress gives and to -- and the sentencing range that Congress sets. And so, to the extent that in all my cases I balanced the individual sentence with, as I was directed to, the interest that society sought to protect, then I applied that evenly -- even-handedly to all cases.

And so, it's important to remember the guidelines were mandatory. And so I took my charge as a district court judge seriously at the time to only deviate in the very unusual case, which was permitted by the guidelines. KLOBUCHAR: And what do you think about the change now that they are guidelines, and -- suggested guidelines and not mandatory?

SOTOMAYOR: As you know, there's been great number of cases in the Supreme Court. The Booker Fan Fan case determined they were guidelines. My own personal experience with that -- with -- as an appellate judge is that, because the Supreme Court has told the district courts to give serious consideration to the guidelines, there's been a little bit -- not a little bit. There's been discretion given to district courts, but they are basically still staying within the guidelines. And I think that's because the guidelines prove useful as a starting point to consider what an appropriate sentence may be.

KLOBUCHAR: Just one last question, Mr. Chairman. All these guys have been asking about your baseball case and they've been talking about umpires and judges as umpires. Did you have a chance to watch the All-Star game last night because most of American didn't watch the replay of your hearing?

(LAUGHTER)

SOTOMAYOR: It might have been watching it. I haven't seen television...

(LAUGHTER)

... for a very long time. But I will admit that I turned it on for a little while.

KLOBUCHAR: OK. Because otherwise I will say, and maybe you didn't turn it on on this moment, but your Yankee, Derek Jeter tied it up, but you must know that he scored only because there was a hit by Joe Mauer of the Minnesota Twins.

(LAUGHTER)

I just want to point that out.

All right. Thanks very much, Judge.

SOTOMAYOR: That's called teamwork.

KLOBUCHAR: All right. Thank you.

LEAHY: I'm resisting any Red Sox comments.

(LAUGHTER)

SOTOMAYOR: (Inaudible) baseball (inaudible) not to hold that against me, OK?

LEAHY: I'm not going to hold that against you. I did -- I did see a photograph of the president throwing out the ball. I know the photographer well. And I thought he did a very, very good job -- or two pictures.


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